EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of June 1, 1999
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-BC2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...........................................3
Section 1.02. Calculations Respecting Mortgage Loans...............33
Section 1.03. Calculations Respecting Accrued Interest.............34
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund;
Conveyance of Mortgage Loans.........................34
Section 2.02. Acceptance of Trust Fund by Trustee:
Review of Documentation for Trust Fund...............37
Section 2.03. Representations and Warranties of the Depositor......38
Section 2.04. Discovery of Breach..................................40
Section 2.05. Repurchase, Purchase or Substitution of Mortgage
Loans................................................40
Section 2.06. Grant Clause.........................................41
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates.....................................41
Section 3.02. Registration.........................................42
Section 3.03. Transfer and Exchange of Certificates................42
Section 3.04. Cancellation of Certificates.........................45
Section 3.05. Replacement of Certificates..........................45
Section 3.06. Persons Deemed Owners................................45
Section 3.07. Temporary Certificates...............................45
Section 3.08. Appointment of Paying Agent..........................46
Section 3.09. Book-Entry Certificates..............................46
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account...................................47
Section 4.02. Application of Funds in the Collection Account.......49
Section 4.03. Reports to Certificateholders........................51
Section 4.04. Certificate Account..................................54
Section 4.05. Determination of LIBOR...............................55
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally..............................56
Section 5.02. Distributions from the Certificate Account...........57
Section 5.03. Allocation of Losses.................................62
Section 5.04. Advances by Master Servicer and Trustee..............62
Section 5.05. Compensating Interest Payments.......................63
Section 5.06. REMIC 1, REMIC 2, REMIC 3, REMIC 4,
and REMIC 5 Allocations..............................63
Section 5.07. Basis Risk Reserve Fund..............................67
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee....................................68
Section 6.02. Certain Matters Affecting the Trustee................70
Section 6.03. Trustee Not Liable for Certificates..................71
Section 6.04. Trustee May Own Certificates.........................71
Section 6.05. Eligibility Requirements for Trustee.................71
Section 6.06. Resignation and Removal of Trustee...................72
Section 6.07. Successor Trustee....................................72
Section 6.08. Merger or Consolidation of Trustee...................73
Section 6.09. Appointment of Co-Trustee, Separate
Trustee or Custodian.................................73
Section 6.10. Authenticating Agents................................75
Section 6.11. Indemnification of Trustee...........................75
Section 6.12. Fees and Expenses of Trustee.........................76
Section 6.13. Collection of Monies.................................76
Section 6.14. Events of Default; Trustee To Act;
Appointment of Successor.............................76
Section 6.15. Additional Remedies of Trustee Upon Event of Default.80
Section 6.16. Waiver of Defaults...................................80
Section 6.17. Notification to Holders..............................80
Section 6.18. Directions by Certificateholders and
Duties of Trustee During Event of Default............80
Section 6.19. Action Upon Certain Failures of the Master
Servicer and Upon Event of Default...................81
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of
Trust Fund Upon Purchase or Liquidation of
All Mortgage Loans ..................................81
Section 7.02. Procedure Upon Termination of Trust Fund.............82
Section 7.03. Additional Trust Fund Termination Requirements.......83
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders......................84
Section 8.02. Access to List of Holders............................84
Section 8.03. Acts of Holders of Certificates......................85
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer........................86
Section 9.02. Master Servicer Fidelity Bond and
Master Servicer Errors and Omissions
Insurance Policy.....................................86
Section 9.03. Master Servicer's Financial Statements
and Related Information..............................87
Section 9.04. Power to Act; Procedures.............................87
Section 9.05. Servicing Agreements Between the Master
Servicer and the Servicer; Enforcement of
Servicer's Obligations ..............................88
Section 9.06. Collection of Taxes, Assessments and Similar Items...89
Section 9.07. Termination of Servicing
Agreements; Successor Servicer.......................89
Section 9.08. Master Servicer Liable for Enforcement...............90
Section 9.09. No Contractual Relationship Between the
Servicer and Trustee or Depositor....................90
Section 9.10. Assumption of Servicing Agreement by Trustee.........90
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.........91
Section 9.12. Release of Mortgage Files............................91
Section 9.13. Documents, Records and Funds in Possession
of Master Servicer To Be Held for Trustee............92
Section 9.14. Representations and Warranties of the
Master Servicer......................................93
Section 9.15. Closing Certificate and Opinion......................95
Section 9.16. Standard Hazard and Flood Insurance Policies.........95
Section 9.17. Presentment of Claims and Collection of Proceeds.....96
Section 9.18. Maintenance of the Primary Mortgage
Insurance Policies...................................96
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents...............................96
Section 9.20. Realization Upon Defaulted Mortgage Loans............97
Section 9.21. Compensation to the Master Servicer..................97
Section 9.22. REO Property.........................................97
Section 9.23. Preparation of Tax Returns and Other Reports.........98
Section 9.24. Reports to the Trustee...............................99
Section 9.25. Annual Officer's Certificate as to Compliance........99
Section 9.26. Annual Independent Accountants' Servicing Report....100
Section 9.27. Merger or Consolidation.............................100
Section 9.28. Resignation of Master Servicer......................100
Section 9.29. Assignment or Delegation of Duties
by the Master Servicer..............................101
Section 9.30. Limitation on Liability of the
Master Servicer and Others..........................101
Section 9.31. Indemnification; Third-Party Claims.................102
Section 9.32. Alternative Index...................................102
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration...............................102
Section 10.02. Prohibited Transactions and Activities.............104
Section 10.03. Indemnification with Respect to
Certain Taxes and Loss of REMIC Status.............104
Section 10.04. REO Property.......................................105
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment............106
Section 11.02. Entire Agreement...................................106
Section 11.03. Amendment..........................................106
Section 11.04. Voting Rights......................................107
Section 11.05. Provision of Information...........................107
Section 11.06. Governing Law......................................108
Section 11.07. Notices............................................108
Section 11.08. Severability of Provisions.........................108
Section 11.09. Indulgences; No Waivers............................108
Section 11.10. Headings Not To Affect Interpretation..............109
Section 11.11. Benefits of Agreement..............................109
Section 11.12. Special Notices to the Rating Agencies.............109
Section 11.13. Counterparts.......................................110
Section 11.14. Transfer of Servicing..............................110
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreement
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit L Form of Letter Agreement between Trustee and the Depositor
Schedule A Mortgage Loan Schedule
This TRUST AGREEMENT, dated as of June 1, 1999 (the "Agreement"), is
by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation,
as depositor (the "Depositor"), NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as master servicer (the "Master Servicer"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc. ("Xxxxxx Capital"), and at the
Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by it to the Trustee hereunder for inclusion in the Trust Fund. On
the Closing Date, the Depositor will acquire the Certificates from the Trust
Fund, as consideration for its transfer to the Trust Fund of the Mortgage
Loans and the other property constituting the Trust Fund. The Depositor has
duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor
and the Master Servicer are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as including five separate real estate
mortgage investment conduits (each a "REMIC" or, in the alternative, "REMIC
1," "REMIC 2," "REMIC 3," "REMIC 4," and "REMIC 5," respectively, REMIC 5 also
being referred to as the "Upper Tier REMIC"). The Class A1, Class A2, Class
A3, Class IO, Class M1, Class M2, Class M3, Class B, and Class X Certificates
represent ownership of all of the "regular interests" in REMIC 5 (the Class
T5-1, Class T5-2, Class T5-3, Class T5-4, Class T5-5, Class T5-6, Class T5-7,
Class T5-8, Class T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13,
Class T5-14, Class T5-15 and Class T5-16 Interests), and the Class R5 Interest
represents the sole class of "residual interest" in REMIC 5 for purposes of
the REMIC Provisions. Each of the Class R1, Class R2, Class R3, and Class R4
Certificates represents the sole class of "residual interest" in REMIC 1,
REMIC 2, REMIC 3, and REMIC 4, respectively, for purposes of the REMIC
Provisions. There are also two classes of uncertificated REMIC 1 Regular
Interests issued under this Agreement (the Class T1-1 and Class T1-2
Interests), each of which will constitute regular interests in REMIC 1; four
classes of uncertificated REMIC 2 Regular Interests (the Class T2-1, Class
T2-2, Class T2-3 and Class T2-4 Interests), each of which will constitute
regular interests in REMIC 2; five classes of uncertificated REMIC 3 Regular
Interests (the Class T3-1, Class T3-2, Class T3-3, Class T3-4 and Class T3-5
Interests), each of which will constitute regular interests in REMIC 3; and,
eleven classes of uncertificated REMIC 4 Regular Interests (Class T4-1, Class
T4-2, Class T4-3, Class T4-4, Class T4-5, Class T4-6, Class T4-7, Class T4-8,
Class T4-9, Class T4-10 and Class T4-11 Interests) each of which will
constitute regular interests in REMIC 4. The REMIC 1 Regular Interests will be
held as assets of REMIC 2, the REMIC 2 Regular Interests will be held as
assets of REMIC 3, the REMIC 3 Regular Interests will be held as assets of
REMIC 4, and the REMIC 4 Regular Interests will be held as assets of REMIC 5.
As used herein, (i) the Class A1 Certificates are "related" to Pool 1
and the Class A2 and Class A3 Certificates are "related" to Pool 2.
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount and minimum
denomination for each Class of Certificates comprising the interests in the
Trust Fund created hereunder.
Certificate Interest Initial Class Minimum
Class Designation Rate Principal Amount Denominations
Class A1 (1) $140,129,000.00 $ 25,000
Class A2 (2) 75,577,000.00 25,000
Class A3 (3) 157,000,000.00 25,000
Class IO 8.00% (9) 250,000
Class M1 (4) 26,119,000.00 25,000
Class M2 (5) 17,187,000.00 25,000
Class M3 (6) 3,878,000.00
Class B (7) 9,023,000.00 25,000
Class P (8) (8) (10)
Class X (8) (8) (10)
Class R (8) (8) (10)
---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date
for the Class A1 Certificates is the per annum rate equal to the
lesser of (i) 7.09% and (ii) the Net Funds Cap for such Distribution
Date.
(2) The Certificate Interest Rate with respect to any Distribution Date
for the Class A2 Certificates is the per annum rate equal to the
least of (i) LIBOR plus 0.09%, (ii) 10.00% and (iii) the Net Funds
Cap for such Distribution Date; provided, that if the holder of the
Class X Certificate does not exercise its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on
the Distribution Date on which it is first entitled to do so, then
with respect to such Distribution Date and each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i) above with respect to the Class A2 Certificates will be LIBOR
plus 0.18%.
(3) The Certificate Interest Rate with respect to any Distribution Date
for the Class A3 Certificates is the per annum rate equal to the
least of (i) LIBOR plus 0.30%, (ii) 10.00% and (iii) the Net Funds
Cap for such Distribution Date; provided, that if the holder of the
Class X Certificate does not exercise its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on
the Distribution Date on which it is first entitled to do so, then
with respect to such Distribution Date and each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i) above with respect to the Class A3 Certificates will be LIBOR
plus 0.60%.
(4) The Certificate Interest Rate with respect to any Distribution Date
for the Class M1 Certificates is the per annum rate equal to the
least of (i) LIBOR plus 0.85%, (ii) 10.00% and (iii) the Net Funds
Cap for such Distribution Date; provided, that if the holder of the
Class X Certificate does not exercise its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on
the Distribution Date on which it is first entitled to do so, then
with respect to such Distribution Date and each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i) above with respect to the Class M1 Certificates will be LIBOR
plus 1.35%.
(5) The Certificate Interest Rate with respect to any Distribution Date
for the Class M2 Certificates is the per annum rate equal to the
least of (i) LIBOR plus 1.40%, (ii) 10.00% and (iii) the Net Funds
Cap for such Distribution Date; provided, that if the holder of the
Class X Certificate does not exercise its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on
the Distribution Date on which it is first entitled to do so, then
with respect to such Distribution Date and each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i) above with respect to the Class M1 Certificates will be LIBOR
plus 1.90%.
(6) The Certificate Interest Rate with respect to any Distribution Date
for the Class M3 Certificates is the per annum rate equal to the
least of (i) LIBOR plus 1.30%, (ii) 10.00% and (iii) the Net Funds
Cap for such Distribution Date; provided, that if the holder of the
Class X Certificate does not exercise its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on
the Distribution Date on which it is first entitled to do so, then
with respect to such Distribution Date and each subsequent
Distribution Date the per annum rate calculated pursuant to clause
(i) above with respect to the Class M2 Certificates will be LIBOR
plus 1.80%.
(7) The Certificate Interest Rate with respect to any Distribution Date
for the Class B Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 2.65% and (ii) the Net Funds Cap for such
Distribution Date; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to such Distribution Date and each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class B Certificates will be LIBOR plus 3.15%.
(8) The Class P, the Class X and Class R Certificates will be issued
without a Certificate Principal Amount and will not bear interest.
(9) The Class IO Certificates are interest-only certificates and will not
receive distributions of principal. Interest will accrue on such
Class at the applicable Certificate Interest Rate on the basis of the
Notional Amount thereof. The initial Class Notional Amount of the
Class IO Certificates is $52,000,000.
(10) The Class P, the Class X and Class R Certificates will each be issued
as a single Certificate evidencing the entire Percentage Interest in
such Class.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $428,913,644.29.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer (except in its capacity as successor to the
Servicer), or (y) as provided in the Servicing Agreement, to the extent
applicable to the Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accrual Period: With respect to any Distribution Date and any Class
of LIBOR Certificates and any LIBOR Component and the Class IO Certificates,
the one-month period beginning on the immediately preceding Distribution Date
(or on May 25, 1999, in the case of the first Accrual Period) and ending on
the day immediately preceding the related Distribution Date. With respect to
any Distribution Date and the Class A1 Certificates, and any REMIC 1 Regular
Interest, REMIC 2 Regular Interest, REMIC 3 Regular Interest or REMIC 4
Regular Interest, the one month period beginning immediately following the end
of the preceding Accrual Period (or from the Cut-off Date to the Closing Date,
in the case of the first Accrual Period) and ending on the last day of the
calendar month immediately preceding the month in which such Distribution Date
occurs.
Additional Collateral: None.
Adjustable Rate Mortgage Loan: Any Mortgage Loan as to which the
related Mortgage Note provides for the adjustment of the Mortgage Rate
applicable thereto.
Adjusted Overcollateralization Amount: With respect to any
Distribution Date, the amount, if any, by which (a) the Aggregate Loan Balance
for such Distribution Date (reduced to give effect to any Realized Losses and
Advances of principal) exceeds (b) the aggregate of the balances of the Class
T4-1, Class T4-2, Class T4-3, Class T4-4, Class T4-5, Class T4-6, and Class
T4-7 Interests as of such Distribution Date (after giving effect to the
distribution of principal on such Regular Interests on such Distribution
Date).
Adjusted Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the aggregate of the Principal Remittance
Amounts for such Distribution Date and (y) the amount, if any, by which (i)
the Adjusted Overcollateralization Amount for such date, calculated for this
purpose on the basis of the assumption that 100% of the Principal Remittance
Amount for such date is applied on such date in reduction of the principal
balances of the Class T4-1, Class T4-2, Class T4-3, Class T4-4, Class T4-5,
Class T4-6, and Class T4-7 Interests exceeds (ii) the Targeted
Overcollateralization Amount for such date.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the Servicing Fee) on one or
more Mortgage Loans that were due on the Due Date in the related Collection
Period and not received as of the close of business on the related
Determination Date, required to be made by or on behalf of the Master Servicer
and the Servicer (or by the Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Loan Balance: The aggregate of the Scheduled Principal
Balances of all Mortgage Loans (in both Mortgage Pools) at the date of
determination.
Aggregate Master Servicing Compensation: As to any Distribution Date,
the aggregate of the Master Servicing Fees payable to the Master Servicer in
respect of such Distribution Date.
Aggregate Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the aggregate of the Principal Remittance
Amounts for such Distribution Date and (y) the amount, if any, by which (i)
the Overcollateralization Amount for such date, calculated for this purpose on
the basis of the assumption that 100% of the aggregate of the Principal
Remittance Amounts for such date is applied on such date in reduction of the
aggregate of the Certificate Principal Amounts of the Certificates, exceeds
(ii) the Targeted Overcollateralization Amount for such date.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
Applied Loss Amount: With respect to any Distribution Date, the
amount, if any, by which (x) the aggregate Certificate Principal Amount of the
Certificates after giving effect to distributions on such date, but before
giving effect to any application of the Applied Loss Amount with respect to
such date, exceeds (y) the Aggregate Loan Balance for such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
B Principal Distribution Amount: With respect to any Distribution
Date, the amount, if any, by which (x) the sum of (i) the aggregate
Certificate Principal Amount of the Class A1, Class A2 and Class A3
Certificates and the aggregate Certificate Principal Amount of the Class M1,
Class M2 and Class M3 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount of
the Class B Certificates immediately prior to such Distribution Date exceeds
(y) the lesser of (A) the product of (i) 95.60% and (ii) the Aggregate Loan
Balance for such Distribution Date and (B) the amount, if any, by which (i)
the Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.50% of
the Cut-off Date Aggregate Loan Balance.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Basis Risk Reserve Fund: A fund created as part of the Trust Fund
pursuant to Section 5.07 of this Agreement but which is not an asset of any of
the REMICs.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of Certificates other than the Class IO, Class R, Class X and Class P
Certificates and any Component, the amount by which the Certificate Interest
Rate or Component Interest Rate applicable to such Certificate or Component
for such date, determined without regard to the Net Funds Cap for such date,
exceeds such Net Funds Cap.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class A1, Class A2, Class
A3, Class IO, Class M1, Class M2, Class M3 and Class B Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Maryland or Minnesota are closed, or (iii) with respect to
any Remittance Date or the Servicer reporting date, the States specified in
the definition of "Business Day" in the Servicing Agreement, are authorized or
obligated by law or executive order to be closed.
Carryforward Interest: With respect to any Distribution Date and each
Class of Certificates or Component, the sum of (i) the amount, if any, by
which (x) the sum of (A) Current Interest for such Class or Component for the
immediately preceding Distribution Date and (B) any unpaid Carryforward
Interest for such Class or Component from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class or Component
on such immediately preceding Distribution Date, and (ii) interest on such
amount for the related Accrual Period at the applicable Certificate Interest
Rate or Component Interest Rate.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Interest Rate: With respect to each Class of Certificates
and any Distribution Date, the applicable per annum rate set forth or
described in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than the Class IO, Class P, Class X and Class R Certificates), the initial
Certificate Principal Amount thereof, less the amount of all principal
distributions previously distributed with respect to such Certificate and any
Applied Loss Amount previously allocated to such Certificate. The Class IO,
Class P, Class X and Class R Certificates are issued without Certificate
Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Class: All Certificates bearing the same class designation.
Class Notional Amount: With respect to the Class IO Certificates and
any Distribution Date, the aggregate Notional Amount thereof, which will be
calculated as follows:
(i) from June 25, 1999 through November 25, 1999, the Class
Notional Amount will equal $52,000,000;
(ii) from December 25, 1999 through May 25, 2000, the Class
Notional Amount will equal $19,900,000;
(iii) from June 25, 2000 through May 25, 2001, the Class
Notional Amount will equal $7,500,000; and
(iv) from June 25, 2001 and thereafter, the Class Notional
Amount will equal zero.
Class Principal Amount: With respect to each Class of Certificates
other than the Class P, Class X and Class R Certificates and any Class of
Notional Certificates, the aggregate of the Certificate Principal Amounts of
all Certificates of such Class at the date of determination.
Class P Certificate: An interest in the Trust Fund that is not an
interest in any of the Pooling REMIC, REMIC 1, REMIC 2, REMIC 3, REMIC 4, or
REMIC 5, and that is entitled to distributions as provided in Section 5.02(e).
Class R Certificate: The Class R Certificate executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A and evidencing the ownership of the Class
R1 Interest, Class R2 Interest, Class R3 Interest, Class R4 interest, and
Class R5 Interest.
Class R1 Interest: The uncertificated residual interest in REMIC 1.
Class R2 Interest: The uncertificated residual interest in REMIC 2.
Class R3 Interest: The uncertificated residual interest in REMIC 3.
Class R4 Interest: The uncertificated residual interest in REMIC 4.
Class R5 Interest: The uncertificated residual interest in REMIC 5.
Class T1-1 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance equal to the Cut-off Date
Aggregate Loan Balance less an amount equal to the Class Notional Amount of
the Class IO Certificates as of the Cut-off Date, bears interest at a per
annum rate equal to the weighted average (by Scheduled Principal Balance) of
the Net Mortgage Rates on the Mortgage Loans as of the first day of the
related Collection Period, and has such other terms as are described in
Section 5.06.
Class T1-2 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance equal to the Class Notional
Amount of the Class IO Certificates as of the Cut-off Date, bears interest at
a per annum rate equal to the weighted average (by Scheduled Principal
Balance) of the Net Mortgage Rates on the Mortgage Loans as of the first day
of the related Collection Period, and has such other terms as are described in
Section 5.06.
Class T2-1 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance equal to 98% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
weighted average of the rates payable on the Class T1-1 and Class T1-2
Interests, reducing the rate on the Class T1-2 Interest by 8.00% for purposes
of this calculation, and has such other terms as are described in Section
5.06.
Class T2-2 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
weighted average of the rates payable on the Class T1-1 and Class T1-2
Interests, reducing the rate on the Class T1-2 Interest by 8.00% for purposes
of this calculation, and has such other terms as are described in Section
5.06.
Class T2-3 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
weighted average of the rates payable on the Class T1-1 and Class T1-2
Interests, reducing the rate on the Class T1-2 Interest by 8.00% for purposes
of this calculation, and has such other terms as are described in Section
5.06.
Class T2-4 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that does not have a principal balance, but has a notional
principal balance that will at all times equal the principal balance of the
Class T1-2 Interest and which bears interest at a rate of 8.00%.
Class T3-1 Interest. A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance equal to 98% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
rate payable on the Class T2-1 Interest, and has such other terms as are
described in Section 5.06.
Class T3-2 Interest. A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
Standard Rate, and has such other terms as are described in Section 5.06.
Class T3-3 Interest. A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
rate payable on the Class T2-3 Interest, and has such other terms as are
described in Section 5.06.
Class T3-4 Interest. A regular interest in REMIC 3 held as an asset
of REMIC 4 that is entitled to the interest accruals on the Class T2-2
Interest in excess of accruals at the Standard Rate, and that has such other
terms and conditions as are described in Section 5.06.
Class T3-5 Interest. A regular interest in REMIC 3 held as an asset
of REMIC 4 that is entitled on any Distribution Date to all amounts payable
with respect to the Class T2-4 Interest, and that has such other terms and
conditions as are described in Section 5.06.
Class T4-1 Interest: A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $140,129,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-2 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $75,577,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-3 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $157,000,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-4 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $26,119,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-5 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $17,187,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-6 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $3,878,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-7 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that has an initial balance as of the Closing Date of $9,023,000,
bears interest at the Standard Rate, and has such other terms as are described
in Section 5.06.
Class T4-8 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T4-8 Notional Balance immediately prior to such
Distribution Date and (iii) the Class T4-8 Pass-Through Rate.
Class T4-8 Interest: A regular interest in REMIC 4 held as an asset
of REMIC 5 that has such terms as are described in Section 5.06.
Class T4-8 Notional Balance: A notional principal balance equal as of
any date to the sum of the principal balances of the Class T3-1 and T3-3
Interests on such date.
Class T4-8 Pass-Through Rate: With respect to any Distribution Date,
a per annum rate equal to the excess of (i) the rate payable on the Class T3-1
Interest for such date over (ii) the product of (x) two and (y) a fraction,
the numerator of which is the product of the Standard Rate and the principal
balance of the Class T3-2 Interest immediately prior to such Distribution Date
and the denominator of which is the sum of the principal balances of the
related Class T3-2 and Class T3-3 Interests immediately prior to such
Distribution Date.
Class T4-9 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T4-9 Notional Balance immediately prior to such
Distribution Date and (iii) the Class T4-9 Pass-Through Rate.
Class T4-9 Interest: A regular interest in REMIC 4 held as an asset
of REMIC 5 that has such terms as are described in Section 5.06.
Class T4-9 Notional Balance: A notional principal balance equal as of
any date to the principal balance of the Class T3-2 Interest related to such
Mortgage Pool for such date.
Class T4-9 Pass-Through Rate: With respect to any Distribution Date,
a per annum rate equal to the excess of (i) the Standard Rate over (ii) the
product of (x) two and (y) a fraction, the numerator of which is the product
of the Standard Rate and the principal balance of the Class T3-2 Interest
immediately prior to such Distribution Date and the denominator of which is
the sum of the principal balances of the related Class T3-2 and Class T3-3
Interests immediately prior to such Distribution Date.
Class T4-10 Distributable Amount: With respect to any Distribution
Date, an amount equal to the amount distributable in respect of the Class T3-4
Interest for such date.
Class T4-10 Interest: A regular interest in REMIC 4 held as an asset
of REMIC 5 that is entitled to the Class T4-11 Distributable Amount.
Class T4-11 Interest. A regular interest in REMIC 4 held as an asset
of REMIC 5 that is entitled on any Distribution Date to all amounts payable
with respect to the Class T3-5 Interest, and that has such other terms and
conditions as are described in Section 5.06.
Class T5-1 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $140,129,000 and bears interest at
the Class A-1 Certificate Interest Rate the ownership of which is evidenced by
the Class A-1 Certificates.
Class T5-2 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $75,577,000 and bears interest at
the Class A-2 Certificate Interest Rate the ownership of which is evidenced by
the Class A-2 Certificates.
Class T5-3 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $157,000,000 and bears interest at
the Class A-3 Certificate Interest Rate the ownership of which is evidenced by
the Class A-3 Certificates.
Class T5-4 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $26,119,000 and bears interest at
the Class A-4 Certificate Interest Rate the ownership of which is evidenced by
the Class A-4 Certificates.
Class T5-5 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $17,187,000 and bears interest at
the Class M-1 Certificate Interest Rate the ownership of which is evidenced by
the Class M-1 Certificates.
Class T5-6 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $3,878,000 and bears interest at the
Class M-2 Certificate Interest Rate the ownership of which is evidenced by the
Class M-2 Certificates.
Class T5-7 Interest: A regular interest in REMIC 5 that has an
initial balance as of the Closing Date of $9,023,000 and bears interest at the
Class B Certificate Interest Rate the ownership of which is evidenced by the
Class B Certificates.
Class T5-8 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-1 Interest in excess of interest accruing
thereon at the Class A-1 Certificate Interest Rate.
Class T5-9 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-2 Interest in excess of interest accruing
thereon at the Class A-2 Certificate Interest Rate.
Class T5-10 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-3 Interest in excess of interest accruing
thereon at the Class A-3 Certificate Interest Rate.
Class T5-11 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-4 Interest in excess of interest accruing
thereon at the Class A-4 Certificate Interest Rate.
Class T5-12 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-5 Interest in excess of interest accruing
thereon at the Class M-1 Certificate Interest Rate.
Class T5-13 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-6 Interest in excess of interest accruing
thereon at the Class M-2 Certificate Interest Rate.
Class T5-14 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to all
interest accruals on the Class T4-7 Interest in excess of interest accruing
thereon at the Class B Certificate Interest Rate.
Class T5-15 Distributable Amount: For any Distribution Date, the sum
of the Class T4-8, Class T4-9, and Class T4-10 Distributable Amounts.
Class T5-15 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class X Certificate, that is entitled to the Class
T5-15 Distributable Amount.
Class T5-16 Interest: A regular interest in REMIC 5, ownership of
which is evidenced by the Class IO Certificates, that is entitled on any
Distribution Date to all amounts payable on the Class T4-11 Interest.
Class X Distributable Amount: With respect to any Distribution Date,
the aggregate of the amounts distributable on the Class T5-8, Class T5-9,
Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class T5-14, and Class
T5-15 Interests.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: June 10, 1999.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by
the Master Servicer pursuant to Section 4.01.
Collection Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan, the
ratio of the principal balance of such Mortgage Loan at origination or such
other date as is specified, plus, with respect to any Junior Mortgage Loan,
the outstanding principal balance of the mortgage loan senior thereto, to the
Original Value thereof.
Compensating Interest Payment: With respect to any Distribution Date,
an amount equal to the excess of (x) the aggregate of any Prepayment Interest
Shortfalls with respect to such Distribution Date over (y) the aggregate of
any amounts required to be paid by the Servicer in respect of such shortfalls
but not paid; provided, that such amount, to the extent payable by the Master
Servicer, shall not exceed the Aggregate Master Servicing Compensation that
would be payable to the Master Servicer in respect of such Distribution Date
without giving effect to any Compensating Interest Payment.
Component: None.
Component Certificate: None.
Component Group: None.
Component Interest Rate: Not applicable.
Component Notional Amount: Not applicable.
Component Principal Amount: Not applicable.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Department of Veterans Affairs.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and
a Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest
in the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Global
Corporate Trust Services.
Current Interest: With respect to each Class of Certificates or
Component and any Distribution Date, the aggregate amount of interest accrued
at the applicable Certificate Interest Rate or Component Interest Rate during
the related Accrual Period on the Class Principal Amount or Class Notional
Amount of such Class or the Component Principal Amount or Component Notional
Amount of such Component immediately prior to such Distribution Date.
Custodial Agreement: The custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto. The initial Custodian is
Bankers Trust of California, National Association.
Cut-off Date: May 1, 1999.
Cut-off Date Aggregate Loan Balance: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Loan Balance as of
the Cut-off Date.
Cut-off Date Pool Balance: With respect to each Mortgage Pool, the
Pool Balance thereof as of the Cut-off Date.
DCR: Duff & Xxxxxx Credit Rating Co., or any successor in interest.
Deferred Amount: With respect to any Distribution Date and each
Certificate, the aggregate of Applied Loss Amounts previously applied in
reduction of the Certificate Principal Amount thereof, less any amounts
previously reimbursed in respect thereof.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Delinquency Rate: With respect to any calendar month, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans 60 or more days delinquent (including
all foreclosures and REO Properties) as of the close of business on the last
day of such month, and the denominator of which is the Aggregate Loan Balance
as of the close of business on the last day of such month.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the 18th
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the next succeeding Business Day.
Directing Holder: The holder of the Class X Certificate.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, or (viii) any "electing large partnership"
described in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in June 1999.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in
a manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States
of America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or
state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating
from each Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Aggregate Loan Balance and
the aggregate principal amount of all Eligible Investments in the
Certificate Account; provided, further, that such securities will not
be Eligible Investments if they are published as being under review
with negative implications from either Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by either Rating Agency of any of the Certificates. Such investments
in this subsection (viii) may include money market mutual funds or
common trust funds, including any fund for which The First National
Bank of Chicago (the "Bank"), the Trustee, the Master Servicer or an
affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) the Bank or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y)
the Bank or an affiliate thereof charges and collects fees and
expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may
converge at any time. The Trustee specifically authorizes the Bank or
an affiliate thereof to charge and collect from the Trustee such fees
as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Class M1, Class M2, Class M3, Class
B, Class P, Class X and Class R Certificate.
Escrow Account: Any account established and maintained by the
Servicer pursuant to the Servicing Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: With respect to the Class A1 and
Class A3 Certificates, July 25, 2028; with respect to the Class A2
Certificates, December 25, 2014; with respect to the Class IO Certificates,
June 25, 2001; with respect to the Class M1, Class M2, Class M3 and Class B
Certificates, June 25, 2029.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, the Servicer or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee shall be protected in relying upon any such
consent, only Certificates which a Responsible Officer of the Trustee knows to
be so owned shall be disregarded. The Trustee may request and conclusively
rely on certifications by the Depositor, the Master Servicer and the Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or the Servicer.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: The index specified in the related Mortgage Note for
calculation of the Mortgage Rate thereof.
Initial LIBOR Rate: 4.9425%.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, flood insurance policy, earthquake insurance
policy or title insurance policy relating to the Mortgage Loans or the
Mortgaged Properties, to be in effect as of the Closing Date or thereafter
during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Interest Remittance Amount: With respect to any Distribution Date,
(a) the sum of (i) all interest collected (other than Payaheads) or advanced
in respect of Scheduled Payments on the Mortgage Loans, but excluding any
Prepayment Premiums, during the related Collection Period, less (x) the
Servicing Fee and the Master Servicing Fee with respect to the Mortgage Loans
and (y) unreimbursed interest Advances and other amounts due to the Master
Servicer, the Servicer or the Trustee (other than with respect to clause (b),
below) with respect to the Mortgage Loans, to the extent allocable to
interest, (ii) any amounts paid by the Servicer with respect to Prepayment
Interest Shortfalls with respect to the Mortgage Loans and any Compensating
Interest Payment with respect to the Mortgage Loans with respect to the
related Prepayment Period, (iii) the portion of any Substitution Amount paid
with respect to the Mortgage Loans during the related Prepayment Period
allocable to interest and (iv) all Net Liquidation Proceeds, Insurance
Proceeds and other recoveries collected with respect to such Mortgage Loans
during the related Prepayment Period, to the extent allocable to interest, as
reduced by unreimbursed interest Advances and other amounts due the Master
Servicer, the Servicer or the Trustee, to the extent allocable to interest, as
reduced by (b) any expenses of the Trustee reimbursable pursuant to Section
6.11 and not reimbursed pursuant to clauses (i) or (iv) above.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Junior Mortgage Loan: Any Mortgage Loan that is secured by a junior
lien on the related Mortgaged Property.
Latest Possible Maturity Date: The Distribution Date occurring in
June 2030.
Xxxxxx Capital: Xxxxxx Capital, A Division of Xxxxxx Brothers
Holdings Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, the per annum rate
determined pursuant to Section 4.05 on the basis of London interbank offered
rate quotations for one-month Eurodollar deposits, as such quotations may
appear on the display designated as page "LIUS01M" on the Bloomberg Financial
Markets Commodities News (or such other page as may replace such page on that
service for the purpose of displaying London interbank offered quotations of
major banks).
LIBOR Certificate: Any Class A2, Class A3, Class M1, Class M2, Class
M3 and Class B Certificate.
LIBOR Component: None.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period other than the first Accrual
Period for any LIBOR Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the Servicer has determined that all amounts that it
expects to recover on behalf of the Trust Fund from or on account of such
Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master
Servicer or the Servicer in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable Primary Mortgage
Insurance Policy, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale, payment in
full, discounted payoff or otherwise, or the sale of the related Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan, including any amounts remaining in the related Escrow Account.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
M1 Principal Distribution Amount: With respect to any Distribution
Date, the amount, if any, by which (x) the sum of (i) the aggregate
Certificate Principal Amount of the Senior Certificates after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount of
the Class M1 Certificates immediately prior to such Distribution Date exceeds
(y) the lesser of (A) the product of (i) 81.57% and (ii) the Aggregate Loan
Balance for such Distribution Date and (B) the amount, if any, by which (i)
the Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.50% of
the Cut-off Date Aggregate Loan Balance.
M2 Principal Distribution Amount: With respect to any Distribution
Date, the amount, if any, by which (x) the sum of (i) the aggregate
Certificate Principal Amount of the Senior Certificates and the Class
Principal Amount of the Class M1 Certificates, in each case after giving
effect to distributions on such Distribution Date and (ii) the Class Principal
Amount of the Class M2 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 89.58% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.50% of the Cut-off Date Aggregate Loan Balance.
M3 Principal Distribution Amount: With respect to any Distribution
Date, the amount, if any, by which (x) the sum of (i) the aggregate
Certificate Principal Amount of the Senior Certificates and the Class
Principal Amount of each of the Class M1 and Class M2 Certificates, in each
case after giving effect to distributions on such Distribution Date and (ii)
the Class Principal Amount of the Class A3 Certificates immediately prior to
such Distribution Date exceeds (y) the lesser of (A) the product of (i) 91.39%
and (ii) the Aggregate Loan Balance of such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such Distribution
Date exceeds (ii) 0.50% of the Cut-off Date Aggregate Loan Balance.
Maintenance: With respect to any Cooperative Unit, the rent or fee
paid by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary Lease.
Master Servicer: Norwest Bank Minnesota, National Association, or any
successor in interest, or if any successor master servicer shall be appointed
as herein provided, then such successor master servicer.
Master Servicing Fee: As to any Distribution Date and each Mortgage
Loan, an amount equal to the product of the Master Servicing Fee Rate and the
outstanding principal balance of such Mortgage Loan as of the first day of the
related Collection Period. The Master Servicing Fee for any Mortgage Loan
shall be payable in respect of any Distribution Date solely from the interest
portion of the Scheduled Payment or other payment or recovery with respect to
such Mortgage Loan.
Master Servicing Fee Rate: 0.02% per annum.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
Monthly Excess Cashflow: With respect to any Distribution Date, the
sum of (x) Monthly Excess Interest for such date and (y) the Aggregate
Overcollateralization Release Amount for such date.
Monthly Excess Interest: With respect to any Distribution Date, the
amount of any Interest Remittance Amount remaining after application pursuant
to clauses (i) through (vii) of Section 5.02(b) on such date.
Moody's: Xxxxx'x Investors Service, or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The agreement, dated as of June 1,
1999, for the sale of the Mortgage Loans by Xxxxxx Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either Pool 1 or Pool 2.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is equal to the
product of (i) the amount, if any, by which (a) the Interest Remittance Amount
for such Distribution Date exceeds (b) the Current Interest payable with
respect to the Certificates and Components for such date and (ii) twelve, and
the denominator of which is the Aggregate Loan Balance for such Distribution
Date, multiplied by (B) a fraction, the numerator of which is thirty and the
denominator of which is the greater of thirty and the actual number of days in
the immediately preceding calendar month.
Net Funds Cap: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is the product of
(i) the amount by which the Optimal Interest Remittance Amount for such date
exceeds the amount of interest distributable on the Class IO Certificates for
such date and (ii) 12, and the denominator of which is the product of (a) the
Aggregate Loan Balance for the immediately preceding Distribution Date
multiplied by (b) a fraction, the numerator of which is 30 and the denominator
of which is the greater of 30 and the actual number of days in the immediately
preceding calendar month.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of (i) unreimbursed expenses and
(ii) any unreimbursed Advances, if any, received and retained in connection
with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the Servicing Fee Rate, the Master
Servicing Fee Rate and the Trustee Fee Rate.
Net Prepayment Interest Shortfall: With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls with respect
to the Mortgage Loans for such date over the sum of any amounts paid by the
Servicer with respect to such shortfalls and any amount that is required to be
paid by the Master Servicer in respect of such shortfalls pursuant to this
Agreement.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any individual, corporation, partnership or other
person other than a citizen or resident of the United States; a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, including for this purpose, the District
of Columbia; an estate that is subject to U.S. federal income tax regardless
of the source of its income; or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States trustees have authority to control all substantial
decisions of the trust.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class IO Certificate.
Offering Document: The Prospectus and the PPM.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or the Servicer but
which must be Independent outside counsel with respect to any such opinion of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the taxation, or the federal income tax status,
of each REMIC.
Optimal Interest Remittance Amount: With respect to each Distribution
Date, the product of (1)(x) the weighted average of the Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Collection Period,
divided by (y) (12), and (2) the Aggregate Loan Balance for the immediately
preceding Distribution Date.
Option One: Option One Mortgage Corporation, a California
corporation, as Servicer under the Servicing Agreement.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Overcollateralization Amount: With respect to any Distribution Date,
the amount, if any, by which (x) the Aggregate Loan Balance for such
Distribution Date exceeds (y) the aggregate Certificate Principal Amount of
the Certificates and the aggregate Component Principal Amount of the
Components after giving effect to distributions on such Distribution Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the amount, if any, by which (x) the Targeted Overcollateralization
Amount for such Distribution Date exceeds (y) the Overcollateralization Amount
for such Distribution Date, calculated for this purpose after giving effect to
the reduction on such Distribution Date of the Certificate Principal Amounts
of the Certificates and the Component Principal Amounts of the Components
resulting from the distribution of the Principal Remittance Amounts on such
Distribution Date, but prior to allocation of any Applied Loss Amount on such
Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date and each Mortgage Pool, the amount equal to the product of
(i) the Aggregate Overcollateralization Release Amount for such Distribution
Date and (ii) the Pool Percentage for such Mortgage Pool for such Distribution
Date.
Payahead: With respect to any Mortgage Loan and any Due Date
therefor, any Scheduled Payment received by the Servicer during any Collection
Period in addition to the Scheduled Payment due on such Due Date, intended by
the related Mortgagor to be applied on a subsequent Due Date.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than the Class P, Class X and Class R
Certificates, the Percentage Interest evidenced thereby shall equal the
initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to the
Class P, Class X and Class R Certificates, the Percentage Interest evidenced
thereby shall be 100%.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Xxxxxx Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 1.
Pool 2: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 2.
Pool Balance: With respect to each Mortgage Pool, the aggregate of
the Scheduled Principal Balances of all Mortgage Loans in such Mortgage Pool
at the date of determination.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Pool Balance for such Mortgage Pool for such date and the
denominator of which is the Aggregate Loan Balance for such date.
PPM: The private placement memorandum dated June 8, 1999, relating to
the Class X Certificate.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Master Servicing Fee Rate
and the Servicing Fee Rate, on the outstanding principal balance of such
Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the
one-month period beginning on the Cut-off Date, in the case of the first
Distribution Date, and on the second day of the calendar month immediately
preceding the month in which the related Distribution Date occurs, in the case
of each subsequent Distribution Date, and ending on the first day of the month
in which such Distribution Date occurs.
Prepayment Premiums: Any prepayment fees and penalties to be paid by
the Mortgagor on a Mortgage Loan.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Distribution Amount: With respect to each Mortgage Pool and
any Distribution Date, an amount equal to the Principal Remittance Amount for
such Mortgage Pool for such date minus the Overcollateralization Release
Amount, if any, for such Mortgage Pool for such date.
Principal Only Certificate: None.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the Servicing Agreement.
Principal Remittance Amount: With respect to each Mortgage Pool and
any Distribution Date, the sum of (i) all principal collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans
in such Mortgage Pool during the related Collection Period, (ii) all Principal
Prepayments in full or in part received during the related Prepayment Period,
(iii) the outstanding principal balance of each Mortgage Loan that was
purchased from the Trust Fund during the related Prepayment Period, (iv) the
portion of any Substitution Amount paid during the related Prepayment Period
allocable to principal, and (v) all Net Liquidation Proceeds, Insurance
Proceeds and other recoveries collected with respect to such Mortgage Loans
during the related Prepayment Period, to the extent allocable to principal, as
reduced, in each case to the extent applicable, by unreimbursed Advances and
other amounts due to the Master Servicer, the Servicer or the Trustee, to the
extent allocable to principal.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated June 8, 1999, together
with the accompanying prospectus dated January 15, 1999, relating to the Class
A1, Class A2, Class A3, Class IO, Class M1, Class M2, Class M3 and Class B
Certificates.
Purchase Price: With respect to the purchase of a Mortgage Loan or
related REO Property pursuant to this Agreement, an amount equal to the sum of
(a) 100% of the unpaid principal balance of such Mortgage Loan and (b) accrued
interest thereon at the applicable Mortgage Rate, from the date as to which
interest was last paid to (but not including) the Due Date in the Collection
Period immediately preceding the related Distribution Date. The Master
Servicer or the Servicer (or the Trustee, if applicable) shall be reimbursed
from the Purchase Price for any Mortgage Loan or related REO Property for any
Advances made or other amounts advanced with respect to such Mortgage Loan
that are reimbursable to the Master Servicer or the Servicer under this
Agreement or the Servicing Agreement (or to the Trustee hereunder), together
with any accrued and unpaid compensation due to the Master Servicer and the
Servicer hereunder or thereunder.
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or
other corporation whose long-term debt is rated by each Rating Agency
in one of its two highest rating categories or, if such insurance
company has no long-term debt, whose claims paying ability is rated
by each Rating Agency in one of its two highest rating categories,
and whose short-term debt is rated by each Rating Agency in its
highest rating category;
(b) provide that the Trustee may exercise all of
the rights under such contract or surety bond without the necessity
of taking any action by any other Person;
(c) provide that if at any time the then current
credit standing of the obligor under such guaranteed investment
contract is such that continued investment pursuant to such contract
of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without
penalty and be entitled to the return of all funds previously
invested thereunder, together with accrued interest thereon at the
interest rate provided under such contract to the date of delivery of
such funds to the Trustee;
(d) provide that the Trustee's interest therein
shall be transferable to any successor trustee hereunder: and
(e) provide that the funds reinvested thereunder
and accrued interest thereon be returnable to the Collection Account
or the Certificate Account, as the case may be, not later than the
Business Day prior to any Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan; provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate from the date as to
which interest was last paid through the end of the Collection Period in which
such substitution occurs (such amount, a "Substitution Amount"), shall be paid
by the party effecting such substitution to the Trustee for deposit into the
Certificate Account, and shall be treated as a Principal Prepayment hereunder;
(ii) has a Net Mortgage Rate not lower than the Net Mortgage Rate of the
related Deleted Mortgage Loan; (iii) if the total principal balance of
Qualifying Substitute Mortgage Loans in the Trust is less than 5% of the
initial principal balance of the Mortgage Loans, has a remaining stated term
to maturity not longer than, and not more than one year shorter than, the
remaining term to stated maturity of the related Deleted Mortgage Loan; (iv)
(A) has a Loan-to-Value Ratio as of the date of such substitution of not
greater than 80%, provided, however, that if the related Deleted Mortgage Loan
has a Loan-to-Value Ratio of greater than 80%, then the Loan-to-Value Ratio of
such substitute Mortgage Loan may be greater than 80% but shall not be greater
than the Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the
addition of such substitute Mortgage Loan does not increase the weighted
average Loan-to-Value Ratio of the related Mortgage Pool by more than 50%; (v)
will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) is not a Cooperative Loan unless the related Deleted Mortgage
Loan was a Cooperative Loan; (vii) if applicable, has the same index as and a
margin not less than that of the related Deleted Mortgage Loan and (viii) has
not been delinquent for a period of more than 30 days more than twice in the
twelve months immediately preceding such date of substitution. In the event
that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the Scheduled Principal Balance referred to
in clause (i) above shall be determined on a loan-by-loan basis, (b) the rate
referred to in clause (ii) above shall be determined on a loan-by-loan basis
and (c) the remaining term to stated maturity referred to in clause (iii)
above, and the Loan-to-Value Ratio referred to in clause (iv) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
latest Final Scheduled Distribution Date of any Class of Certificates.
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify such qualification in writing to the Trustee.
Rating Agency: Each of S&P and DCR.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, minus (ii) Liquidation Proceeds received, to the
extent allocable to principal, net of amounts that are reimbursable therefrom
to the Master Servicer or the Servicer with respect to such Mortgage Loan
(other than Advances of principal) including expenses of liquidation. In
determining whether a Realized Loss is a Realized Loss of principal,
Liquidation Proceeds shall be allocated, first, to payment of expenses related
to such Liquidated Mortgage Loan, then to accrued unpaid interest and finally
to reduce the principal balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of
such Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to the LIBOR Certificates and the Class IO
Certificates and any Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date. With respect to the Class A1
Certificates and any Distribution Date, the last Business Day of the month
immediately preceding the month in which the Distribution Date occurs (or, in
the case of the first Distribution Date, the Closing Date).
Reference Banks: As defined in Section 4.05.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 10.01(a) hereof.
REMIC 1 Regular Interest: Any of the Class T1-1 and Class T1-2
Interests.
REMIC 2 Regular Interest: Any of the Class T2-1, Class T2-2, Class
T2-3 and Class T2-4 Interests.
REMIC 3 Regular Interest: Any of the Class T3-1, Class T3-2, Class
T3-3, Class T3-4 and Class T3-5 Interests.
REMIC 4 Regular Interest: Any of the Class T4-1, Class T4-2, Class
T4-3, Class T4-4, Class T4-5, Class T4-6, Class T4-7, Class T4-8, Class T4-9,
Class T4-10 and Class T4-11 Interests.
REMIC 5 Regular Interest Any of the Class T5-1, Class T5-2, Class
T5-3, Class T5-4, Class T5-5, Class T5-6, Class T5-7, Class T5-8, Class T5-9,
Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class T5-14, Class T5-15
and Class T5-16 Interests.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: With respect to each Distribution Date, the 18th day
of the month in which the Distribution Date occurs, or, if such 18th day is
not a Business Day, the next succeeding Business Day.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Required Reserve Fund Deposit: With respect to any Distribution Date
on which the Net Excess Spread is less than 0.25%, the amount, if any by which
(a) the product of 1.00% and the Aggregate Loan Balance for such date exceeds
(b) the amount on deposit in the Basis Risk Reserve Fund immediately prior to
such date. With respect to any Distribution Date on which the Net Excess
Spread is equal to or greater than 0.25%, the amount, if any, by which (i)
$1,000 exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date.
Reserve Interest Rate: As defined in section 4.05.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having responsibility for the administration of this Agreement.
Restricted Certificate: Any Class P, Class X or Class R Certificate.
Rolling Three Month Delinquency Rate: With respect to any
Distribution Date, the fraction, expressed as a percentage, equal to the
average of the Delinquency Rates for each of the three (or one and two, in the
case of the first and second Distribution Dates) immediately preceding
calendar months.
S&P: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor in interest.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Collection Period shall be
deemed collectively to constitute the Scheduled Payment due on such Mortgage
Loan in such Collection Period.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Collection Period, whether or not received from
the Mortgagor or advanced by the Servicer or the Master Servicer, and all
amounts allocable to unscheduled principal payments (including Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds, in each case to the extent identified and applied prior to or during
the related Prepayment Period) and (ii) any REO Property as of any
Distribution Date, the Scheduled Principal Balance of the related Mortgage
Loan on the Due Date immediately preceding the date of acquisition of such REO
Property by or on behalf of the Trustee (reduced by any amount applied as a
reduction of principal on the Mortgage Loan). With respect to any Mortgage
Loan and the Cut-off Date, as specified in the Mortgage Loan Schedule.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Cooperative Shares and the
originator of the related Mortgage Note that defines the terms of the security
interest in such Cooperative Shares and the related Proprietary Lease.
Senior Certificate: Any Class A1, Class A2, Class A3 or Class IO
Certificate.
Senior Component: Any Component of a Senior Certificate.
Senior Enhancement Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Certificate Principal Amount of the Class M1, Class M2, Class M3
and Class B Certificates and the Overcollateralization Amount (which amount,
for purposes of this definition only, shall not be less than zero), in each
case after giving effect to distributions on such Distribution Date, and the
denominator of which is the Aggregate Loan Balance for such Distribution Date.
Senior Principal Distribution Amount: With respect to each Mortgage
Pool and any Distribution Date, the product of (i) the applicable Senior
Proportionate Percentage and (ii) the amount, if any, by which (x) the
aggregate Certificate Principal Amount of the Senior Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 69.39% and (ii) the Aggregate Loan Balance for such Distribution Date and
(B) the amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Cut-off Date Aggregate Loan
Balance.
Senior Proportionate Percentage: With respect to Pool 1 and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Class Principal Amount of the Class A1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Certificate Principal Amount of the Senior Certificates immediately prior to
such date. With respect to Pool 2 and any Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Amount of the Class A2 and Class A3 Certificates immediately prior
to such Distribution Date and the denominator of which is the aggregate
Certificate Principal Amount of the Senior Certificates immediately prior to
such date.
Servicer: Option One, or any successor in interest.
Servicing Agreement: The Servicing Agreement between the Servicer and
Xxxxxx Capital attached hereto as Exhibit E.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of the Servicing Fee Rate and the outstanding
principal balance of such Mortgage Loan as of the first day of the related
Collection Period.
Servicing Fee Rate: With respect to each Distribution Date, 0.50%.
Standard Rate: With respect to any Distribution Date, a rate equal to
the greater of the Certificate Interest Rate for the Class B Certificates and
the Certificate Interest Rate for the Class A-1 Certificates.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stepdown Date: The later to occur of (x) the Distribution Date in
December 2001 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Mortgage Loans during the
related Collection Period but before giving effect to distributions on the
Certificates on such Distribution Date) is greater than to equal to 30.61%.
Subordinate Certificate: Any Class M1, Class M2, Class M3, Class B,
Class P or Class X Certificate.
Substitution Amount: As defined in the definition of Qualifying
Substitute Mortgage Loan.
Target Amount 1: With respect to any Distribution Date, the amount
equal to the sum of (1) Target Amount 2 for such Distribution Date and (2) the
Principal Distribution Amount for Pool 2 for such Distribution Date.
Target Amount 2: With respect to any Distribution Date, the amount
equal to the Aggregate Loan Balance as of such Distribution Date minus the
product of (1) 2.20% and (2) the Cut-Off Date Aggregate Loan Balance.
Targeted Overcollateralization Amount: With respect to any
Distribution Date (x) prior to the Stepdown Date, the product of 2.20% and the
Cut-off Date Aggregate Loan Balance; (y) on and after the Stepdown Date and
with respect to which a Trigger Event has occurred with respect to such
Distribution Date, the amount calculated pursuant to clause (x) above, and (z)
on and after the Stepdown Date and with respect to which a Trigger Event has
not occurred with respect to such Distribution Date, the greater of (i) the
product of 4.40% of the Aggregate Loan Balance as of the last day of the
related Collection Period and (ii) 0.50% of the Cut-off Date Aggregate Loan
Balance.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Telerate Page 120: The display designated as "Page 120" on the Dow
Xxxxx Telerate Service (or such other page selected by the Trustee as may
replace Page 120 on that service for the purpose of displaying daily Federal
Funds rates).
Termination Price: As defined in Section 7.01.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Total Distribution Amount: With respect to any Distribution Date, the
sum of the Interest Remittance Amount for such date and the aggregate of the
Principal Remittance Amounts for such date.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: The seller of Mortgage Loans to Xxxxxx Capital pursuant
to the Transfer Agreements.
Trigger Event: A Trigger Event will have occurred with respect to any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding Collection Period equals or exceeds 50% of
the Senior Enhancement Percentage for such Distribution Date.
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans, the assignment of the Depositor's
rights under the Mortgage Loan Sale Agreement and the Servicing Agreement,
such amounts as shall from time to time be held in the Collection Account, the
Certificate Account, any Escrow Account, the Basis Risk Reserve Fund, the
Insurance Policies, any REO Property and the other items referred to in, and
conveyed to the Trustee under, Section 2.01(a).
Trustee: The First National Bank of Chicago, not in its individual
capacity but solely as Trustee, or any successor in interest, or if any
successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may be.
Trustee Fee: $4,000 per year, payable in monthly installments.
Trustee Fee Rate: With respect to each Distribution Date and each
Mortgage Pool, the per annum rate equal to the fraction, expressed as a
percentage, calculated by dividing the Trustee Fee by the Aggregate Loan
Balance for such Mortgage Pool for such Distribution Date.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date
and any Certificate, the aggregate of all Basis Risk Shortfalls with respect
to such Certificate remaining unpaid from previous Distribution Dates, plus
interest accrued thereon at the applicable Certificate Interest Rate
(calculated without giving effect to the applicable Net Funds Cap).
Upper Tier REMIC: REMIC 5.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
92% of all Voting Interests shall be allocated to the Certificates other than
the Class IO and Class X Certificates; 2% of all Voting Interests shall be
allocated to the Class IO Certificates, and 6% of all Voting Interests shall
be allocated to each Class X Certificate. Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates within
each such Class) in proportion to their Class Principal Amounts (or
Certificate Principal Amounts).
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Master Servicer. The Trustee shall not be
required to recompute, verify or recalculate the information supplied to it by
the Master Servicer.
Section 1.03. Calculations Respecting Accrued Interest. Accrued
interest, if any, on any Certificate, other than the Class A1 and the Class IO
Certificates, shall be calculated based upon a 360-day year and the actual
number of days in each Accrual Period. Accrued interest, if any, on any Class
A1 or Class IO Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date (other
than payments of principal and interest due on or before such date), and all
such payments due after such date but received prior to such date and intended
by the related Mortgagors to be applied after such date, together with all of
the Depositor's right, title and interest in and to the Collection Account and
all amounts from time to time credited to and the proceeds of the Collection
Account, the Certificate Account and all amounts from time to time credited to
and the proceeds of the Certificate Account, any Escrow Account established
pursuant to Section 9.06 and all amounts from time to time credited to and the
proceeds of any such Escrow Account, any Basis Risk Reserve Fund established
pursuant to Section 5.07 and all amounts from time to time credited to and the
proceeds of any such Basis Risk Reserve Fund, any REO Property and the
proceeds thereof, the Depositor's rights under any Insurance Policies related
to the Mortgage Loans, the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any Additional Collateral, and any proceeds of the foregoing, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement, including all rights of Xxxxxx Capital
under the Servicing Agreements and the Transfer Agreements to the extent
assigned under the Mortgage Loan Sale Agreement and delegates its obligations
thereunder. The Trustee hereby accepts such assignment and delegation, and
shall be entitled to exercise all rights of the Depositor under the Mortgage
Loan Sale Agreement as if, for such purpose, it were the Depositor.
(b) In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or any custodian acting on the Trustee's
behalf, if applicable, the following documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original
Mortgage Note endorsed without recourse in proper form to the order
of the Trustee, or in blank (in each case, with all necessary
intervening endorsements as applicable);
(ii) the original of any guarantee executed in connection
with the Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon. If, in connection with any Mortgage
Loan, the Depositor cannot deliver the Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost, the
Depositor shall deliver or cause to be delivered to the Trustee (or
its custodian), in the case of a delay due to recording, a true copy
of such Mortgage, pending delivery of the original thereof, together
with an Officer's Certificate of the Depositor certifying that the
copy of such Mortgage delivered to the Trustee (or its custodian) is
a true copy and that the original of such Mortgage has been forwarded
to the public recording office, or, in the case of a Mortgage that
has been lost, a copy thereof (certified as provided for under the
laws of the appropriate jurisdiction) and a written Opinion of
Counsel acceptable to the Trustee and the Depositor that an original
recorded Mortgage is not required to enforce the Trustee's interest
in the Mortgage Loan;
(iv) The original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or,
as to any assumption, modification or substitution agreement which
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or
substitution agreement, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or its custodian) is a true copy
and that the original of such agreement has been forwarded to the
public recording office;
(v) with respect to each Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) If applicable, such original intervening assignments of
the Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete
chain of assignment from the originator, or, in the case of an
Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening
Assignment is not required to enforce the Trustee's interest in the
Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to any Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel
mortgage or equivalent executed in connection with the Mortgage or as
to any security agreement, chattel mortgage or their equivalent that
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such document has
been delivered for recordation, a photocopy of such document, pending
delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered to
the Trustee (or its custodian) is a true copy and that the original
of such document has been forwarded to the public recording office;
(x) with respect to any Cooperative Loan, the Cooperative
Loan Documents; and
(xi) in connection with any pledge of Additional Collateral,
the original additional collateral pledge and security agreement
executed in connection therewith, assigned to the Trustee.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) Assignments of Mortgage with respect to each Mortgage Loan other
than a Cooperative Loan shall be recorded; provided, however, that such
Assignments need not be recorded if, in the Opinion of Counsel (which must be
Independent counsel) acceptable to the Trustee and the Rating Agencies,
recording in such states is not required to protect the Trustee's interest in
the related Mortgage Loans. Subject to the preceding sentence, as soon as
practicable after the Closing Date (but in no event more than 3 months
thereafter except to the extent delays are caused by the applicable recording
office), the Trustee, at the expense of the Depositor and with the cooperation
of the Servicer, shall cause to be properly recorded by the Servicer in each
public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect to
each Mortgage Loan. With respect to each Cooperative Loan, the Trustee, at the
expense of the Depositor and with the cooperation of the Servicer, shall cause
to be taken such actions as are necessary under applicable law in order to
perfect the interest of the Trustee in the related Mortgaged Property.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee or the Custodian on behalf of the Trustee under
clause (b)(viii) above and is not so delivered, the Depositor will provide a
copy of such Title Insurance Policy to the Trustee, or to the Custodian on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
Custodian on behalf of the Trustee, an Officer's Certificate which shall
include a statement to the effect that all amounts received in connection with
such prepayment that are required to be deposited in the applicable Collection
Account pursuant to Section 4.01 have been so deposited. All original
documents that are not delivered to the Trustee shall be held by the Master
Servicer or the Servicer in trust for the benefit of the Trustee and the
Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
hereof, acknowledges receipt by it or by the Custodian on its behalf of the
Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule. The Trustee or the Custodian on behalf of the Trustee has reviewed
each Mortgage File to ascertain that all required documents set forth in
Section 2.01 have been received and appear on their face to contain the
requisite signatures by or on behalf of the respective parties thereto, and
will execute and deliver on the Closing Date to the Depositor and the Master
Servicer an Initial Certification in the form annexed hereto as Exhibit B-2
(or in the form annexed to the Custodial Agreement as Exhibit B-1, as
applicable) to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan specifically identified
in such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession and
(ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The Trustee, or the Custodian on behalf of the Trustee, shall
make sure that the documents are executed and endorsed, but shall be under no
duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid, binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they
purport to be on their face. Neither the Trustee nor the Custodian shall have
any responsibility for verifying the genuineness or the legal effectiveness of
or authority for any signatures of or on behalf of any party or endorser.
(b) If in the course of the review described in paragraph (a) above
the Trustee or the Custodian discovers any document or documents constituting
a part of a Mortgage File that is missing, does not appear regular on its face
(i.e., is mutilated, damaged, defaced, torn or otherwise physically altered)
or appears to be unrelated to the Mortgage Loans identified in the Mortgage
Loan Schedule (each, a "Material Defect"), the Trustee, or the Custodian on
behalf of the Trustee, shall promptly identify the Mortgage Loan to which such
Material Defect relates in the certificate delivered to the Depositor and to
the Trustee. Within 90 days of its receipt of such notice, the Transferor, or,
if the Transferor does not do so, the Depositor shall be required to cure such
Material Defect (and, in such event, the Depositor shall provide the Trustee
with an Officer's Certificate confirming that such cure has been effected). If
the applicable Transferor or the Depositor, as applicable, does not so cure
such Material Defect, the Transferor, or, if the Transferor does not do so,
the Depositor, shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, shall repurchase the
related Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall
be deemed to be attributable to the failure of the Depositor to cure a
Material Defect if, as determined by the Depositor, upon mutual agreement with
the Trustee acting in good faith, absent such Material Defect, such loss would
not have been incurred. Within the two year period following the Closing Date,
the Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to this
Section 2.02, substitute for such Mortgage Loan a Qualifying Substitute
Mortgage Loan subject to the provisions of Section 2.05. The failure of the
Trustee or the Custodian to give the notice contemplated herein within 45 days
after the Closing Date shall not affect or relieve the Depositor of its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02 or
any other Section of this Agreement requiring the repurchase of Mortgage Loans
from the Trust Fund.
(c) Within 180 days following the Closing Date, the Trustee, or the
Custodian, shall deliver to the Depositor and the Master Servicer a Final
Certification substantially in the form annexed hereto as Exhibit B-3 (or in
the form annexed to the Custodial Agreement as Exhibit B-2, as applicable)
evidencing the completeness of the Mortgage Files in its possession or
control.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(e) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the applicable
certifications as provided in the Custodial Agreement.
Section 2.03. Representations and Warranties of the Depositor. (a)
The Depositor hereby represents and warrants to the Trustee, for the benefit
of Certificateholders, and to the Master Servicer, as of the Closing Date or
such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any
other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery
by the Trustee and the Master Servicer, constitutes a valid and
binding obligation of the Depositor enforceable against it in
accordance with its terms except as such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or,
to the knowledge of the Depositor, threatened or likely to be
asserted against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect
it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations
under this Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and sell
each Mortgage Loan to the Trustee free and clear, subject only to (1)
liens of current real property taxes and assessments not yet due and
payable and, if the related Mortgaged Property is a condominium unit,
any lien for common charges permitted by statute, (2) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the
related Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of title
and abstract of title delivered to the originator of such Mortgage
Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had
full right and authority, subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement.
(b) The representations and warranties of the Transferor with respect
to the Mortgage Loans in the applicable Transfer Agreement, which have been
assigned to the Trustee hereunder, were made as of the date of such Transfer
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of a representation or warranty made under
a Transfer Agreement, the Trustee or a Certificateholder shall have the right
to require that Xxxxxx Capital cure such breach or effect such other remedy as
is specified in subsection 1.04(b) of the Mortgage Loan Sale Agreement.
Section 2.04. Discovery of Breach. It is understood and agreed that
the representations and warranties (i) set forth in Section 2.03, (ii) of
Xxxxxx Capital set forth in the Mortgage Loan Sale Agreement and assigned to
the Trustee by the Depositor hereunder and (iii) of the Transferor and the
Servicer, assigned by Xxxxxx Capital to the Depositor pursuant to the Mortgage
Loan Sale Agreement and assigned to the Trustee by the Depositor hereunder,
shall each survive delivery of the Mortgage Files and the Assignment of
Mortgage of each Mortgage Loan to the Trustee and shall continue throughout
the term of this Agreement. Upon discovery by any of the Depositor, the Master
Servicer, or the Trustee of a breach of any of such representations and
warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of the discovery of a breach of
any representation or warranty given to the Trustee by the Depositor or given
by Xxxxxx Capital and assigned to the Trustee, the Depositor or Xxxxxx
Capital, as applicable, shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in
respect thereof from the Trustee at the Purchase Price or (c) within the two
year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a
breach of any representation and warranty of any Transferor assigned to the
Trustee, the Trustee shall enforce its rights under the applicable Transfer
Agreement for the benefit of Certificateholders.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement, by Xxxxxx Capital pursuant to the Mortgage Loan Sale Agreement
or by the Transferor pursuant to the applicable Transfer Agreement, the
principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Collection Account. The Trustee, upon receipt of the
full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt
of the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for
a Deleted Mortgage Loan (and any applicable Substitution Amount), shall
release or cause to be released and reassign to the Depositor, Xxxxxx Capital
or the Transferor, as applicable, the related Mortgage File for the Deleted
Mortgage Loan and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as
shall be necessary to vest in such party or its designee or assignee title to
any Deleted Mortgage Loan released pursuant hereto, free and clear of all
security interests, liens and other encumbrances created by this Agreement,
which instruments shall be prepared by the Trustee (or its custodian), and the
Trustee shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
Transferor or Xxxxxx Capital, as applicable, must deliver to the Trustee (or
its custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and
containing the granting language set forth in Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Trustee, at the expense of the Depositor and with the cooperation of the
Servicer, shall cause the Assignment of Mortgage to be recorded by the
Servicer if required pursuant to the first sentence of Section 2.01(c)(i).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates a
first priority security interest in all of the Depositor's right, title and
interest in, to and under, whether now owned or hereafter acquired, the Trust
Fund and all proceeds of any and all property constituting the Trust Fund to
secure payment of the Certificates; and (3) this Agreement shall constitute a
security agreement under applicable law. If such conveyance is deemed to be in
respect of a loan and the Trust created by this Agreement terminates prior to
the satisfaction of the claims of any Person holding any Certificate, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed as herein provided.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Amount, as applicable, or in the Percentage Interests, specified herein. Each
Class of Book-Entry Certificates will be issued in the minimum denominations
in Certificate Principal Amount (or Notional Amount) specified in the
Preliminary Statement hereto and in integral multiples of $1 in excess
thereof. The Class X Certificate, Class P Certificate and the Class R
Certificate shall each be issued as a single Certificate and maintained in
definitive, fully registered form in a denomination equal to 100% of the
Percentage Interest of such Class. The Certificates may be issued in the form
of typewritten certificates.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
The Certificate Registrar shall register the transfer of a Restricted
Certificate if the requested transfer is (x) to the Depositor or the Placement
Agent, an affiliate (as defined in Rule 144(a)(1) under the 0000 Xxx) of the
Depositor or the Placement Agent or (y) being made to a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Act") by a transferor who has provided the Trustee with a
certificate in the form of Exhibit F hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Depositor to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Trustee will not require such
certificate or opinion in the event that, as a result of a change of law or
otherwise, counsel satisfactory to the Trustee has rendered an opinion to the
effect that the purchase and holding of an ERISA-Restricted Certificate by a
Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee or the Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for the initial issuance of the
ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, (i) no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee"), and the proposed transferor
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-2. In addition, the Trustee may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Depositor and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-Permitted Foreign Holder. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-Permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-Permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Trustee shall have actual
knowledge at the time of such transfer or the time of such payment or other
action that the transferee is a Disqualified Organization, or an agent or
nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled to recover from any Holder of a Residual Certificate that was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such times (and all costs and expenses, including but not limited to
attorneys' fees, incurred in connection therewith). Any payment (not including
any such costs and expenses) so recovered by the Trustee shall be paid and
delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.03(f), for making any payment due
on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, by such Holder's acceptance thereof,
shall be deemed for all purposes to have consented to the provisions of this
section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered upon
the books of the Certificate Registrar as the owner of such Certificate for
the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and
for all other purposes whatsoever, and neither the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of any of them
shall be affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full
force and effect;
(ii) the Depositor, the Master Servicer, the Paying Agent,
the Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency shall be responsible for crediting the
amount of such distributions to the accounts of such Persons entitled
thereto, in accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants
and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of
principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the Master
Servicer shall open and shall thereafter maintain a segregated account held in
trust (the "Collection Account"), entitled "Norwest Bank Minnesota, National
Association, as Master Servicer, in trust for the benefit of the Holders of
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 1999-BC2". The Collection Account shall relate solely to the
Certificates issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer will give to the Trustee prior written notice
of the name and address of the depository institution at which the Collection
Account is maintained and the account number of such Collection Account. The
Master Servicer shall take such actions as are necessary to cause the
depository institution holding the Collection Account to hold such account in
the name of the Trustee (subject to such Master Servicer's right to direct
payments and investments and its rights of withdrawal) under this Agreement.
On each Deposit Date, the entire amount on deposit in the Collection Account
(subject to permitted withdrawals set forth in Section 4.02), other than
amounts not included in the Total Distribution Amount for such Distribution
Date shall be remitted to the Trustee for deposit into the Certificate Account
by wire transfer in immediately available funds. The Master Servicer, at its
option, may choose to make daily remittances from the Collection Account to
the Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including
Principal Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans (other than payments due prior to the Cut-off Date), including
Prepayment Premiums or penalties, net of the Servicing Fee and Master
Servicing Fee with respect to each such Mortgage Loan, but only to
the extent of the amount permitted to be withdrawn or withheld from
the Collection Account in accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect
to a Mortgage Loan not otherwise specified in this paragraph (d),
including all Liquidation Proceeds with respect to the Mortgage Loans
and REO Property, and all amounts received in connection with the
operation of any REO Property, net of (x) any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans (but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04
and 9.21) and (y) any amounts reimbursable to the Servicer under the
Servicing Agreement and retained by the Servicer;
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or the Servicer
pursuant to Section 5.04 or the Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan repurchased by the
Depositor, Xxxxxx Capital, the Master Servicer or any other Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments selected by and at the written direction of the Depositor, which
shall mature not later than the earlier of (a) the Deposit Date (except that
if such Eligible Investment is an obligation of the Trustee or the Paying
Agent, if other than the Trustee, and such Collection Account is maintained
with the Trustee or the Paying Agent, if other than the Trustee, then such
Eligible Investment shall mature not later than such applicable Distribution
Date) or (b) the day on which the funds in such Collection Account are
required to be remitted to the Trustee for deposit into the Certificate
Account, and any such Eligible Investment shall not be sold or disposed of
prior to its maturity. All such Eligible Investments shall be made in the name
of the Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be for the benefit of the Depositor
and shall be subject to its withdrawal or order from time to time, and shall
not be part of the Trust Fund. The amount of any losses incurred in respect of
any such investments shall be deposited in such Collection Account by the
Depositor out of its own funds, without any right of reimbursement therefor,
immediately as realized. The foregoing requirements for deposit in the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in the
Collection Account and payments in the nature of late payment charges,
assumption fees and other incidental fees and charges relating to the Mortgage
Loans (other than Prepayment Premiums) need not be deposited by the Master
Servicer in the Collection Account and may be retained by the Master Servicer
or the Servicer as additional servicing compensation. If the Master Servicer
deposits in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Collection Account.
In the event the Depositor does not provide written direction to the Master
Servicer pursuant to this Section, all funds on deposit in the Collection
Account shall be invested in a money market fund as described in paragraph
(viii) of the definition of "Eligible Investment" set forth in Article I.
Section 4.02. Application of Funds in the Collection Account. The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to reimburse itself or the Servicer for Advances made by
it or by the Servicer pursuant to Section 5.04 or the Servicing
Agreement; the Master Servicer's right to reimburse itself pursuant
to this subclause (i) is limited to amounts received on or in respect
of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds and amounts representing Insurance Proceeds with
respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee and
the Master Servicing Fee) of payments of principal or interest
respecting which any such Advance was made, it being understood, in
the case of any such reimbursement, that the Master Servicer's or
Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(ii) to reimburse itself or the Servicer, following a final
liquidation of a Mortgage Loan, for any amounts advanced by it or by
the Servicer that it determines in good faith will not be recoverable
from amounts representing late recoveries of payments of principal or
interest respecting the particular Mortgage Loan as to which such
Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan, it being understood, in the case
of any such reimbursement, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or the Servicer from Liquidation
Proceeds for Liquidation Expenses and for amounts expended by it
pursuant to Sections 9.20 and 9.22(a) or the Servicing Agreement in
good faith in connection with the restoration of damaged property
and, to the extent that Liquidation Proceeds after such reimbursement
exceed the unpaid principal balance of the related Mortgage Loan,
together with accrued and unpaid interest thereon at the applicable
Mortgage Rate less the applicable Servicing Fee and the Master
Servicing Fee for such Mortgage Loan to the Due Date next succeeding
the date of its receipt of such Liquidation Proceeds, to pay to
itself out of such excess the amount of any unpaid assumption fees,
late payment charges or other Mortgagor charges on the related
Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case
of any such reimbursement or payment, that such Master Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iv) in the event it has elected not to pay itself the
Master Servicing Fee out of any Mortgagor payment on account of
interest or other recovery with respect to a particular Mortgage Loan
prior to the deposit of such Mortgagor payment or recovery in the
Collection Account, to pay to itself the Master Servicing Fee for
each Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates, as reduced pursuant to Section 5.05, from any
Mortgagor payment as to interest or such other recovery with respect
to that Mortgage Loan, as is permitted by this Agreement;
(v) to reimburse itself for expenses incurred by and
recoverable by or reimbursable to it or the Servicer pursuant to
Sections 9.04, 9.06, 9.16, 9.22(a) or 9.30, or pursuant to the
Servicing Agreement, and to reimburse itself for any expenses
reimbursable to it pursuant to Section 10.01(c);
(vi) to pay to the Depositor, Xxxxxx Capital, the Transferor
or the Directing Holder, as applicable, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon
and not distributed on the date on which the related repurchase was
effected, and to pay to the applicable Person any Advances to the
extent specified in the definition of Purchase Price;
(vii) to pay to the Depositor income earned on the
investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(ix) to make payment to itself and others pursuant to any
provision of this Agreement;
(x) to withdraw funds deposited in error in the Collection
Account;
(xi) to clear and terminate any Collection Account pursuant
to Section 7.02;
(xii) to reimburse a successor Master Servicer (solely in
its capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee thereto
shall be prior to the rights of the Certificateholders; and
(xiii) to reimburse the Servicer for such amounts as are due
thereto under the Servicing Agreement and have not been retained by
or paid to the Servicer, to the extent provided in the Servicing
Agreement.
In connection with withdrawals pursuant to subclauses (i), (ii),
(iii), (iv) and (vi) above, the Master Servicer's or Servicer's entitlement
thereto is limited to collections or other recoveries on the related Mortgage
Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant to
such subclause (i), (ii), (iii), (iv) and (vi).
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Trustee shall deliver or cause to be delivered by first class mail
to each Certificateholder a written report setting forth the following
information, which information the Master Servicer will determine (on the
basis of information obtained from the Servicer) and deliver to the Trustee no
later than two Business Days prior to such Distribution Date:
(i) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
and in respect of each Component, to the extent applicable, allocable
to principal on the Mortgage Loans, including Liquidation Proceeds
and Insurance Proceeds, stating separately the amount attributable to
scheduled principal payments and unscheduled payments in the nature
of principal (with respect to each Mortgage Pool);
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
(other than any Class of Principal Only Certificates) and in respect
of each Component allocable to interest;
(iii) the amount, if any, of any distribution to the Holders
of the Class X Certificate and the Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or the Servicer (or the
Trustee) with respect to such Distribution Date, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any, by
which (A) above exceeds (B) above;
(v) the Aggregate Loan Balance and the Pool Balance of each
Mortgage Pool as of the close of business on the last day of the
related Collection Period, after giving effect to payments allocated
to principal reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount)
of each Class of Certificates, to the extent applicable, and the
Component Principal Amount (or Component Notional Amount) of each
Component, as of such Distribution Date after giving effect to
payments allocated to principal reported under clause (i) above,
separately identifying any reduction of any of the foregoing
Certificate Principal Amounts and Component Principal Amounts due to
Applied Loss Amounts;
(vii) the amount of all prepayment penalties or premiums
distributed to the Class P Certificates;
(viii) any Realized Losses realized with respect to the
Mortgage Loans in (x) in the applicable Prepayment Period and (y) in
the aggregate since the Cut-off Date;
(ix) the amount of the Master Servicing Fees, Servicing Fees
and Trustee Fee paid during the Collection Period to which such
distribution relates;
(x) the number and aggregate Scheduled Principal Balance of
Mortgage Loans in each Mortgage Pool, as reported to the Trustee by
the Master Servicer, (a) remaining outstanding (b) delinquent 30 to
59 days on a contractual basis, (c) delinquent 60 to 89 days on a
contractual basis, (d) delinquent 90 or more days on a contractual
basis, and (e) as to which foreclosure proceedings have been
commenced as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such
Distribution Date occurs;
(xi) the deemed principal balance of each REO Property as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xii) with respect to any Mortgage Loan in either Mortgage
Pool that became an REO Property during the preceding calendar month,
the principal balance of such Mortgage Loan and the number of such
Mortgage Loans as of the close of business on the Distribution Date
in such preceding month;
(xiii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage
Loan;
(xiv) the aggregate outstanding Carryforward Interest, Net
Prepayment Interest Shortfalls, Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls, if any, if any, for each Class of Certificates
and each Component, after giving effect to the distribution made on
such Distribution Date;
(xv) the Certificate Interest Rate and Component Interest
Rate applicable to such Distribution Date with respect to each Class
of Certificates and each Component;
(xvi) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were sufficient
available amounts in the Certificate Account and the amounts actually
distributed); and
(xvii) any other "loan-level" information for any Mortgage
Loans in each Mortgage Pool that are delinquent 90 or more days on a
contractual basis and any REO Property held by the Trust that is
reported by the Master Servicer to the Trustee.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
In preparing or furnishing the foregoing information to the Trustee,
the Master Servicer shall be entitled to rely conclusively on the accuracy of
the information or data regarding the Mortgage Loans and the related REO
Property that has been provided to the Master Servicer by the Servicer, and
the Master Servicer shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data.
On each Distribution Date, the Trustee shall also deliver or cause to
be delivered by first class mail to the Depositor a copy of the
above-described written report, to the following address: Mortgage Finance
Group, Xxxxxx Brothers Inc., Three World Financial Center, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx Xxxxxxxxxx, or to such other
address as the Depositor may designate.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, which
request, if received by the Trustee, will be promptly forwarded to the Master
Servicer, the Master Servicer shall provide, or cause to be provided, (or, to
the extent that such information or documentation is not required to be
provided by the Servicer under the Servicing Agreement, shall use reasonable
efforts to obtain such information and documentation from the Servicer, and
provide) to such Certificateholder such reports and access to information and
documentation regarding the Mortgage Loans as such Certificateholder may
reasonably deem necessary to comply with applicable regulations of the Office
of Thrift Supervision or its successor or other regulatory authorities with
respect to investment in the Certificates; provided, however, that the Master
Servicer shall be entitled to be reimbursed by such Certificateholder for such
Master Servicer's actual expenses incurred in providing such reports and
access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
send to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable
such Holders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. The
Master Servicer shall provide the Trustee with such information as is
necessary for the Trustee to prepare such reports.
Section 4.04. Certificate Account. (a) The Trustee shall establish
and maintain in its name, as trustee, a special deposit trust account (the
"Certificate Account"), to be held in trust for the benefit of the
Certificateholders until disbursed pursuant to the terms of this Agreement.
The Certificate Account shall be an Eligible Account. If the existing
Certificate Account ceases to be an Eligible Account, the Trustee shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds on deposit in such existing Certificate
Account into such new Certificate Account. The Certificate Account shall
relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted
by the Master Servicer to the Trustee, all such amounts. The Trustee shall
make withdrawals from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account
in error;
(ii) to pay the Depositor any investment income earned with
respect to funds in the Certificate Account invested in Eligible
Investments as set forth in subsection (c) below, and to make payment
to the Depositor and others pursuant to any provision of this
Agreement;
(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account
by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders
pursuant to Article V; and
(v) to clear and terminate the Certificate Account pursuant
to Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account at the direction of the Depositor, which funds, if
invested, shall be invested in Eligible Investments (which may be obligations
of the Trustee). All such investments must be payable on demand or mature no
later than the next Distribution Date, and shall not be sold or disposed of
prior to their maturity. All such Eligible Investments will be made in the
name of the Trustee (in its capacity as such) or its nominee. All income and
gain realized from any such investment shall be compensation for the Depositor
and shall be subject to its withdrawal on order from time to time. The amount
of any losses incurred in respect of any such investments shall be paid by the
Depositor for deposit in the Certificate Account out of its own funds, without
any right of reimbursement therefor, immediately as realized. In the event
that the Depositor does not provide written direction to the Trustee pursuant
to this Section, all funds on deposit in the Certificate Account shall be
invested in a money market or common trust fund as described in paragraph (ix)
of the definition of "Eligible Investment" set forth in Article I.
Section 4.05. Determination of LIBOR. (a) If the outstanding
Certificates include any LIBOR Certificates or consist of any LIBOR
Components, then on each LIBOR Determination Date the Master Servicer shall
determine LIBOR on the basis of the offered LIBOR quotations of the Reference
Banks as of 11:00 a.m. London time on such LIBOR Determination Date as
follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered quotations
(rounding such arithmetic mean if necessary to the nearest five
decimal places;
(ii) If on any LIBOR Determination Date only one or none of
the Reference Banks provides such offered quotations, LIBOR for the
next Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be either (A)
the rate per annum which the Master Servicer determines to be the
arithmetic mean (rounding such arithmetic mean if necessary to the
nearest five decimal places) of the one-month Eurodollar lending
rates that New York City banks selected by the Depositor are quoting,
on the relevant LIBOR Determination Date, to the principal London
offices of at least two leading banks in the London interbank market
or (B) in the event that the Master Servicer can determine no such
arithmetic mean, the lowest one-month Eurodollar lending rate that
the New York City banks selected by the Depositor are quoting on such
LIBOR Determination Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Master Servicer
is required but is unable to determine the Reserve Interest Rate in
the manner provided in paragraph (ii) above, LIBOR for the next
Accrual Period will be LIBOR as determined on the previous LIBOR
Determination Date or, in the case of the first LIBOR Determination
Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the Certificate Interest Rate or
Component Interest Rate (or Rates) applicable to the LIBOR Certificates and
LIBOR Components for the relevant Accrual Period, in the absence of manifest
error, will be final and binding. In all cases, the Master Servicer may
conclusively rely on quotations of LIBOR for the Reference Banks as such
quotations appear on the display designated "LIUS01M" on the Bloomberg
Financial Markets Commodities News.
(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
on each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be removed
from the Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Depositor shall select an alternative interest rate index over which the
Depositor has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an
independent third party, and such alternative interest rate index shall
constitute LIBOR for all purposes hereof.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least five Business Days prior to the related
Record Date by any Certificateholder owning an aggregate initial Certificate
Principal Amount of at least $2,500,000 (or an aggregate initial Notional
Amount of at least $25,000,000, in the case of a Class IO Certificate), or, in
the case of a Class X Certificate or Class P Certificate, a Percentage
Interest of 100%, by wire transfer in immediately available funds to an
account specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Corporate Trust Office. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificates and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office of the Trustee
or at the office of the New York Presenting Agent. If any payment required to
be made on the Certificates is to be made on a day that is not a Business Day,
then such payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Amounts (or initial
Class Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Total Distribution Amount with
respect to each Mortgage Pool for such date, shall allocate such amount to the
interests issued in respect of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5
and shall distribute such amount as specified in this Section.
(b) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for such date in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution
Date;
(ii) pro rata, on the basis of interest otherwise payable,
to the Class A1, Class A2 and Class A3 Certificates, Current Interest
for each such Class and such Distribution Date and any Carryforward
Interest for each such Class and such Distribution Date;
(iii) to the Class IO Certificate, Current Interest for such
Class and such Distribution Date;
(iv) to the Class M1 Certificates, Current Interest for such
Class and such Distribution Date;
(v) to the Class M2 Certificates, Current Interest for such
Class and such Distribution Date;
(vi) to the Class M3 Certificate, Current Interest for such
Class and such Distribution Date;
(vii) to the Class B Certificates, Current Interest for such
Class and such Distribution Date; and
(viii) for application as part of Monthly Excess Cashflow
for such Distribution Date, as provided in subsection (d) of this
Section, any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (vii) above.
(c) On each Distribution Date, the Trustee shall distribute the
Principal Distribution Amount with respect to each Mortgage Pool for such date
as follows:
(i) On each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event has occurred, the
Trustee will make the following distributions in the following order:
(1) until the aggregate Certificate Principal
Amount of all of the Certificates equals Target Amount 1 for
such Distribution Date, the Principal Distribution Amount
for Pool 1 will be distributed in the following order of
priority:
(A) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(B) to the Class A2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(C) to the Class A3 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(D) to the Class M1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(E) to the Class M2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(F) to the Class M3 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(G) to the Class B Certificates, until the
Class Principal Amount of such Class has been
reduced to zero; and
(H) for application as part of Monthly
Excess Cashflow for such Distribution Date, as
provided in subsection (d) of this Section, any
Principal Distribution Amount remaining after
application pursuant to clauses (A) through (G)
above.
(2) until the aggregate Certificate Principal
Amount of all of the Certificates equals Target Amount 2 for
such Distribution Date, the Principal Distribution Amount
for Pool 2 will be distributed in the following order of
priority:
(A) to the Class A2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(B) to the Class A3 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(C) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(D) to the Class M1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(E) to the Class M2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(F) to the Class B Certificates, until the
Class Principal Amount of such Class has been
reduced to zero;
(G) to the Class M3 Certificates, until
their Class Principal Amount has been reduced to
zero; and
(H) for application as part of Monthly
Excess Cashflow for such Distribution Date, as
provided in subsection (d) of this Section, any
Principal Distribution Amount remaining after
application pursuant to clauses (A) through (G)
above.
(ii) On each Distribution Date (a) on or after the Stepdown
Date and (b) with respect to which a Trigger Event has not occurred,
the Principal Distribution Amounts for both Mortgage Pools for such
date will be distributed in the following order of priority:
(1) to the Class A1 Certificates (in the case of
Pool 1), to the Class A2 Certificates and Class A3
Certificates, sequentially in that order (in the case of
Pool 2), an amount equal to the lesser of (x) the Principal
Distribution Amount for the related Mortgage Pool for such
Distribution Date and (y) the Senior Principal Distribution
Amount for such Mortgage Pool for such date, in each case
until the Class Principal Amount of such Class (or each such
Class) has been reduced to zero;
(2) concurrently, pro rata on the basis of their
Class Principal Amounts after giving effect to distributions
pursuant to clause (1) above, to the Class A1 Certificates
and to the Class A2 Certificates and to the Class A3
Certificates, as a group, the lesser of (x) the aggregate of
the Principal Distribution Amounts for such Distribution
Date remaining after distributions pursuant to clause (1)
above and (y) the aggregate of the Senior Principal
Distribution Amounts for such date remaining after
distributions pursuant to clause (1) above, as follows:
(A) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(B) to the Class A2 Certificates and Class
A3 Certificates, sequentially in that order, until
the Class Principal Amount of each such Class has
been reduced to zero.
(3) to the Class M1 Certificates, an amount equal
to the lesser of (x) the excess of (a) the aggregate
Principal Distribution Amounts for each of Pool 1 and Pool 2
for such Distribution Date over (b) the amount distributed
to the Senior Certificates on such date pursuant to clauses
(1) and (2) above, and (y) the M1 Principal Distribution
Amount for such date, until the Class Principal Amount of
such Class has been reduced to zero;
(4) to the Class M2 Certificates, an amount equal
to the lesser of (x) the excess of (a) the aggregate
Principal Distribution Amounts for each of Pool 1 and Pool 2
for such Distribution Date over (b) the amount distributed
to the Senior Certificates and the Class M1 Certificates on
such date pursuant to clauses (1) through (3) above, and (y)
the M2 Principal Distribution Amount for such date, until
the Class Principal Amount of such Class has been reduced to
zero;
(5) to the Class M3 Certificates, an amount equal
to the lesser of (x) the excess of (a) the aggregate
Principal Distribution Amounts for each of Pool 1 and Pool 2
for such Distribution Date over (b) the amount distributed
to the Senior Certificates and the Class M1 and Class M2
Certificates on such date pursuant to clauses (1) through
(4) above, and (y) the M3 Principal Distribution Amount for
such date, until their Class Principal Amount has been
reduced to zero;
(6) to the Class B Certificates, an amount equal to
the lesser of (x) the excess of (a) the aggregate Principal
Distribution Amounts for each of Pool 1 and Pool 2 for such
Distribution Date over (b) the amount distributed to the
Senior Certificates and the Class M1, Class M2 and Class M3
Certificates on such date pursuant to clauses (1) through
(5) above, and (y) the B Principal Distribution Amount for
such date, until the Class Principal Amount of such Class
has been reduced to zero; and
(7) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (d) of this Section, any Principal Distribution
Amount remaining after application pursuant to clauses (1)
through (6) above.
Notwithstanding the foregoing, on any Distribution Date on which the
Class Principal Amount of each Class of Certificates having a higher
priority of distribution has been reduced to zero, any remaining
Principal Distribution Amount will be distributed to the remaining
Certificates in the order of priority set forth above until the Class
Principal Amount of each such Class has been reduced to zero.
(d) On each Distribution Date, the Trustee shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
(i) until the aggregate Certificate Principal Amount of all
of the Certificates equals the Aggregate Loan Balance for such
Distribution Date minus the Targeted Overcollateralization Amount for
such date, on each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event has occurred, to the
extent of Monthly Excess Interest for such Distribution Date, to the
Certificates, in the following order of priority:
(1) up to an including the Distribution Date in
August 1999, to the Class X Certificateholders;
(2) concurrently, pro rata, in proportion to their
respective Class Principal Amounts after giving effect to
distributions on such Distribution Date, to the Class A1
Certificates and to the Class A2 Certificates and the Class
A3 Certificates, as a group, as follows:
(A) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(B) to the Class A2 Certificates and Class
A3 Certificates, sequentially in that order, until
the Class Principal Amount of such Class has been
reduced to zero;
(3) to the Class M1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(4) to the Class M2 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(5) to the Class M3 Certificates, until the Class
Principal Amount of such Class has been reduced to zero; and
(6) to the Class B Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(ii) to the Basis Risk Reserve Fund, and then, concurrently,
to the Senior Certificates, in proportion to any outstanding Basis
Risk Shortfall and Unpaid Basis Risk Shortfall with respect to each
such Senior Certificate, and then sequentially, to the Class M1,
Class M2, Class M3 and Class B Certificates, in that order, from the
Basis Risk Reserve Fund, in an amount equal to the unpaid amount of
any applicable Basis Risk Shortfall for such date and any applicable
Unpaid Basis Risk Shortfall for such date, as required by Section
5.07 of this Agreement;
(iii) to the Class M1 Certificates, any Carryforward
Interest for such Class and such date;
(iv) to the Class M1 Certificates, any Deferred Amount for
such Class and such date;
(v) to the Class M2 Certificates, any Carryforward Interest
for such Class and such date;
(vi) to the Class M2 Certificates, any Deferred Amount for
such Class and such date;
(vii) to the Class M3 Certificates, any Carryforward
Interest for such Class and such date;
(viii) to the Class M3 Certificates, any Deferred Amount for
such Class and such date;
(ix) to the Class B Certificates, any Carryforward Interest
for such Class and such date;
(x) to the Class B Certificates, any Deferred Amount for
such Class and such date;
(xi) to the Basis Risk Reserve Fund, an amount equal to the
Required Reserve Fund Deposit for such Distribution Date;
(xii) to the Class X Certificate, the Class X Distributable
Amount for such Distribution Date, together with any amounts
withdrawn from the Basis Risk Reserve Fund for distribution to such
Class X Certificate pursuant to Section 5.07(c) and (d) on such date;
and
(xiii) to the Class R Certificate, any amount remaining on
such date after application pursuant to clauses (i) through (xii)
above.
(e) On each Distribution Date, an amount equal to the aggregate of
all Prepayment Premiums collected during the preceding Prepayment Period shall
be distributed to the Class P Certificate.
Section 5.03. Allocation of Losses. On each Distribution Date, the
Class Principal Amounts of the Class M1, Class M2, Class M3 and Class B
Certificates will be reduced by the amount of any Applied Loss Amount for such
date, in the following order of priority:
(i) to the Class B Certificates, until the Class Principal
Amount thereof has been reduced to zero;
(ii) to the Class M3 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
(iii) to the Class M2 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
(iv) to the Class M1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances
shall be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Collection Period (other than Balloon Payments) have
not been received, the Master Servicer shall, or cause the Servicer to,
advance such amount, less an amount, if any, to be set forth in an Officer's
Certificate to be delivered to the Trustee on such Determination Date, which
if advanced the Master Servicer or the Servicer has determined would not be
recoverable from amounts received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds or
otherwise. If the Master Servicer determines that an Advance is required, it
shall on the Deposit Date immediately following such Determination Date either
(i) remit to the Trustee from its own funds (or funds advanced by the
Servicer) for deposit in the Certificate Account immediately available funds
in an amount equal to such Advance, (ii) cause to be made an appropriate entry
in the records of the Collection Account that funds in such account being held
for future distribution or withdrawal have been, as permitted by this Section
5.04, used by the Master Servicer to make such Advance, and remit such
immediately available funds to the Trustee for deposit in the Certificate
Account or (iii) make Advances in the form of any combination of clauses (i)
and (ii) aggregating the amount of such Advance. Any funds being held in the
Collection Account for future distribution to Certificateholders and so used
shall be replaced by the Master Servicer from its own funds by remittance to
the Trustee for deposit in the Certificate Account on or before any future
Deposit Date to the extent that funds in the Certificate Account on such
Deposit Date shall be less than payments to Certificateholders required to be
made on the related Distribution Date. The Master Servicer and the Servicer
shall be entitled to be reimbursed from the Collection Account for all
Advances made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to Section 5.04 on or before the
Deposit Date, the Trustee, as successor Master Servicer pursuant to Section
6.14, shall, on or before the related Distribution Date, deposit in the
Certificate Account an amount equal to the excess of (a) Advances required to
be made by the Master Servicer or the Servicer that would have been deposited
in such Certificate Account over (b) the amount of any Advance made by the
Master Servicer or the Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance
only if it is not prohibited by law from doing so and it has determined that
such Advance would be recoverable from amounts to be received with respect to
such Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Trustee shall be entitled to be reimbursed from
the Certificate Account for Advances made by it pursuant to this Section 5.04
as if it were the Master Servicer.
Section 5.05. Compensating Interest Payments. The amount of the
Aggregate Master Servicing Compensation payable to the Master Servicer in
respect of any Distribution Date shall be reduced by the amount of any
Compensating Interest Payment for such Distribution Date, but only to the
extent such Compensating Interest Payment is not actually made by the Servicer
on the applicable Remittance Date. Such amount shall not be treated as an
Advance and shall not be reimbursable to the Master Servicer.
Section 5.06. REMIC 1, REMIC 2, REMIC 3, REMIC 4, and REMIC 5
Allocations.
(a) With respect to REMIC 1 and on each Distribution Date, all
collections and other recoveries allocable to principal of the Mortgage Loans
shall be allocated first to the Class T1-2 Interest in an amount sufficient to
reduce its principal balance so that it corresponds to the Class IO Class
Notional Amount for such date; the balance will be allocated to the Class T1-1
Interest. Realized Losses and Net Prepayment Interest Shortfalls with respect
to the Mortgage Loans will be allocated first to the Class T1-1 Interest and
then to the Class T1-2 Interest.
(b) The initial principal balances of the Class T2-1, Class T2-2 and
Class T2-3 Interests shall equal 98%, 1% and 1%, respectively, of the Cut-off
Date Aggregate Loan Balance. With respect to each Distribution Date, 98% of
all collections and other recoveries allocable to principal of the Class T1-1
and Class T1-2 Interests will be allocated to the Class T2-1 Interest.
Remaining amounts allocable to principal of the Mortgage Loans on such
Distribution Date will be allocated first to the Class T2-3 Interest up to an
amount equal to 2% of any amount that represents an Adjusted
Overcollateralization Release Amount with respect to such Distribution Date
and then equally to the Class T2-2 and Class T2-3 Interests. Interest accruing
on the Class T2-3 Interest in respect of each Distribution Date in an amount
equal to 1% of the increase in the Adjusted Overcollateralization Amount from
the immediately preceding Distribution Date will be deferred and added to the
principal balance of the Class T2-3 Interest. The amount of interest accrued
and deferred on the Class T2-3 Interest in accordance with the preceding
sentence in respect of each Distribution Date shall be distributed as
principal on such date to the Class T2-2 Interest.
(c) On each Distribution Date, the Realized Losses attributable to
the Mortgage Loans for such date shall be allocated 98% to the Class T2-1
Interest. The remaining 2% of such Realized Losses shall be allocated to the
Class T2-3 Interest to the extent that the principal balance of the Class T2-3
Interest exceeds that of the Class T2-2 Interests and then equally between the
Class T2-2 Interest and the Class T2-3 Interest.
(d) On each Distribution Date, Net Prepayment Interest Shortfalls
with respect to the Mortgage Loans shall be allocated ratably among the Class
T2-1, Class T2-2 and Class T2-3 Interests in proportion to their rights to
receive interest on such Distribution Date.
(e) The Class T2-4 Interest does not have a principal balance but is
entitled to receive interest payments on each Distribution Date in an amount
equal to the Interest Payments at the Class IO Certificate Interest Rate on a
notional balance equal to the Class T1-2 Interest Balance on such date
(without regard to principal payments made on the Class T1-2 Interest on such
date).
(f) The initial principal balances of the Class T3-1 Interest, Class
T3-2 Interest and Class T3-3 Interest shall equal 98%, 1% and 1%,
respectively, of the Cut-off Date Aggregate Loan Balance. The Class T3-4 shall
not have a principal balance. On each Distribution Date, all collections and
other recoveries allocable to principal of the Mortgage Loans will be
allocated 98% to the Class T3-1 Interest. Remaining amounts allocable to
principal of the Mortgage Loans on such Distribution Date will be allocated
first to the Class T3-3 Interest up to an amount equal to 2% of any amount
that represents an Adjusted Overcollateralization Release Amount for such
Distribution Date and then equally to the Class T3-2 and Class T3-3 Interests.
Interest accruing on the Class T3-3 Interest in respect of such Distribution
Date in an amount equal to 1% of the increase in the Adjusted
Overcollateralization Amount from the immediately preceding Distribution Date
will be deferred and added to the principal balance of the Class T3-3
Interest. The amount of interest accrued and deferred on the Class T3-3
Interest in accordance with the preceding sentence in respect of each
Distribution Date shall be distributed as principal to the Class T3-2
Interest.
(g) On each Distribution Date, the Realized Losses on the Mortgage
Loans for such date shall be allocated 98% to the Class T3-1 Interest. The
remaining 2% of such Realized Losses shall be allocated to the Class T3-3
Interest to the extent that the principal balance of the Class T3-3 Interest
exceeds that of the Class T3-2 Interest and then equally between the Class
T3-2 Interest and the Class T3-3 Interests.
(h) On each Distribution Date, Net Prepayment Interest Shortfalls
with respect to the Pool 1 Mortgage Loans shall be allocated ratably among the
Class T3-1, Class T3-2, and the Class T3-3 Interests in proportion to their
rights to receive interest on such Distribution Date.
(i) The Class T3-5 Interest does not have a principal balance but is
entitled to receive interest payments on each Distribution Date in an amount
equal to the Interest Payments at the Class IO Certificate Interest Rate on a
notional balance equal to the Class T1-2 Interest balance on such date
(without regard to principal payments made on the Class T1-2 Interest on such
date).
(j) On each Distribution Date, the Class T4-1, Class T4-2, Class
T4-3, Class T4-4, Class T4-5, Class T4-6, and Class T4-7 Interests shall be
entitled to receive all collections and other recoveries allocable to
principal on the Mortgage Loans and such principal shall be distributed in a
manner that correspond to the distributions made with respect to the
corresponding class of Interests in REMIC 5 (the Class T5-1, Class T5-2, Class
T5-3, Class T5-4, Class T5-5, Class T5-6 and Class T5-7 Interests,
respectively).
(k) On each Distribution Date up to and including the Distribution
Date in August 1999, the interest that accrues on the Class T4-8, Class T4-9,
and Class T4-10 Interests shall be distributed with respect to those Interests
in proportion to their entitlements to current and accrued undistributed
interest. On each Distribution Date on and after the Distribution Date in
September 1999, interest that accrues with respect to the Class T4-8, Class
T4-9, and Class T4-10 Interests during the related Accrual Period shall be
distributed as principal on the Class T4-1, Class T4-2, Class T4-3, Class
T4-4, Class T4-5, Class T4-6 and Class T4-7 Interests to the extent needed to
achieve the Targeted Overcollateralization Amount for such Distribution Date,
and, to the extent not needed for this purpose, shall be distributed with
respect to the Class T4-8, Class T4-9, and Class T4-10 Interests in proportion
to their entitlements to current and accrued undistributed interest. Interest
that accrues on the Class T4-8, Class T4-9, and Class T4-10 Interests shall
not itself bear interest.
(l) On each Distribution Date, REMIC 4 shall allocate
Realized Losses with respect to the Mortgage Loans as follows:
first, to the Class T4-1 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-1
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
second, to the Class T4-2 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-2
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
third, to the Class T4-3 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-3
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
fourth, to the Class T4-4 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-4
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
fifth, to the Class T4-5 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-5
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
sixth, to the Class T4-6 Interest, to the extent that its
principal balance exceeds the principal balance of the Class T5-6
Interest as of such Distribution Date (after giving effect to any
distributions made on such date);
seventh, proportionately, to the accrued interest balances
of the Class T4-8, Class T4-9, and Class T4-10 Interests; and
eighth, in a manner that will cause any amount due on each
REMIC 4 Regular Interest to equal the amount due on the corresponding
Class of Regular interests in REMIC 5.
(m) The Class T4-11 Interest does not have a principal balance but is
entitled to receive interest payments on each Distribution Date in an amount
equal to the Interest Payments at the Class IO Certificate Interest Rate on a
notional balance equal to the Class T1-2 Interest balance on such date
(without regard to principal payments made on the Class T1-2 Interest on such
date).
(n) On each Distribution Date, Net Prepayment Interest Shortfalls
shall be allocated ratably among the REMIC 4 Regular Interests according to
their right to receive interest on such Distribution Date.
(o) On each Distribution Date, The Class T5-1, Class T5-2, Class
T5-3, Class T5-4, Class T5-6, and Class T5-7 Interests shall be entitled to
receive principal and interest payments that correspond to those to be made on
the Class A1, Class A2, Class A3, Class M1, Class M2, Class M3 and Class B
Certificates, respectively (determined without regard to any amounts due from
the Basis Risk Reserve Fund). On each Distribution Date up to and including
the Distribution Date in August 1999, the interest that accrues on the Class
T5-8, Class T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class
T5-14, and Class T5-15 Interests shall be distributed with respect to those
Interests in proportion to their entitlements to current and accrued
undistributed interest. On each Distribution Date on and after the
Distribution Date in September 1999, interest that accrues with respect to the
Class T5-8, Class T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13,
Class T5-14, and Class T5-15 Interests during the related Accrual Period shall
be distributed as principal on the Class T5-1, Class T5-2, Class T5-3, Class
T5-4, Class T5-5, Class T5-6, and Class T5-7 Interests to the extent needed to
fund the Excess Principal Distribution Amount, and, to the extent not needed
for this purpose, shall be distributed with respect to the Class T5-8, Class
T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class T5-14 and
Class T5-15 Interests in proportion to their entitlement to current and
accrued undistributed interest. Interest that accrues on the Class T5-8, Class
T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class T5-14, and
Class T5-15 Interests shall not itself bear interest.
(p) The Class T5-16 Interest does not have a principal balance but is
entitled to receive interest payments on each Distribution Date in an amount
equal to the Interest Payments at the Class IO Certificate Interest Rate on a
notional balance equal to the Class T1-2 Interest balance on such date
(without regard to principal payments made on the Class T1-2 Interest on such
date).
(q) With respect to each Distribution Date, the Applied Loss Amount
with respect to REMIC 5 and any Distribution Date shall be allocated among the
REMIC 5 Regular Interests in accordance with the allocations provided in
Section 5.03 hereof for the corresponding Classes of Components.
(r) With respect to each Mortgage Pool and on each Distribution Date,
Net Prepayment Interest Shortfalls shall be allocated ratably among the Class
T5-8, Class T5-9, Class T5-10, Class T5-11, Class T5-12, Class T5-13, Class
T5-14, and Class T5-15 Interests in proportion to the interest accruing on
those Interests with resect to such Distribution Date.
Section 5.07. Basis Risk Reserve Fund. (a) On the Closing Date, the
Trustee shall establish and maintain in its name, in trust for the benefit of
the holders of the Class A1, Class A2, Class A3, Class M1, Class M2, Class M3
and Class B Certificates, a Basis Risk Reserve Fund, into which the Depositor
shall deposit $1,000. The Basis Risk Reserve Fund shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee held pursuant to this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less
than 0.25%, the Trustee shall transfer the Required Reserve Fund Deposit from
the Certificate Account to the Basis Risk Reserve Fund pursuant to Section
5.02(d)(xi). The Trustee shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(d)(ii).
(c) Funds in the Basis Risk Reserve Fund shall be invested in
Permitted Investments. Any earnings on such amounts shall be distributed to
the related Class X Certificate pursuant to Section 5.02(d)(xii). The Class X
Certificate shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein. In the absence of
written instructions from the Class X Certificateholder as to investment of
funds on deposit in the Basis Risk Reserve Fund, such funds shall be invested
in the Trustee's Corporate Trust Short Term Investment Fund. Any amounts on
deposit in the Basis Risk Reserve Fund in excess of the Required Reserve Fund
Deposit on any Distribution Date shall be distributed to the Class X
Certificate on the following Distribution Date.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Basis Risk Reserve Fund shall be distributed to the Class X Certificateholder
pursuant to Section 5.02(d)(xii).
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during the
continuance of an Event of Default, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee provided for in this Agreement shall not be construed as
a duty of the Trustee. If an Event of Default has occurred and has not
otherwise been cured or waived, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs unless the Trustee
is acting as Master Servicer, in which case it shall use the same degree of
care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer, to the Trustee pursuant to
this Agreement, and shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits).
No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates as
provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default (other
than resulting from a failure by the Master Servicer (i) to remit
funds (or to make Advances) or (ii) to furnish information to the
Trustee when required to do so) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office, and such notice references the Holders of
the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; and
(iv) The Trustee shall not be responsible for any act or
omission of the Master Servicer.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability for the performance of any of its
duties hereunder or the exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of,
any of the obligations of the Master Servicer or the Servicer under this
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Master Servicer in accordance with the terms of this Agreement.
(g) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Collection Amount) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or
any agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to
the Trustee pursuant to this Agreement believed by the Trustee to be genuine
and to have been signed or presented by the proper party or parties.
Section 6.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel and any advice of
its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same
appears regular on its face), unless requested in writing to do so by
Holders of at least a majority in Class Principal Amount (or
Percentage Interest) of each Class of Certificates; provided,
however, that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable
expense thereof shall be paid by the Holders requesting such
investigation;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians or attorneys, which agents, custodians or
attorneys shall have any and all of the rights, powers, duties and
obligations of the Trustee conferred on them by such appointment,
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto, in each case at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence
or willful misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of
the Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally, and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans to the
Trust Fund by the Depositor or for the use or application of any funds
deposited into the Collection Account, the Certificate Account, any Escrow
Account or any other fund or account maintained with respect to the
Certificates. The Trustee shall not be responsible for the legality or
validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. Except as otherwise provided herein, the Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04. Trustee May Own Certificates. The Trustee and any
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust
business with the other parties hereto with the same rights it would have if
it were not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee may
at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor and the Master Servicer. Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee, one copy to the successor trustee and one
copy to the Master Servicer. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating, then the
Depositor shall remove the Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed, one copy to the successor trustee and one copy to the Master
Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee and to the Depositor remove the Trustee by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee so removed and one copy to the Master Servicer; the
Depositor shall thereupon use its best efforts to appoint a mutually
acceptable successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and
documents and statements related to each Mortgage Files held by it hereunder,
and shall duly assign, transfer, deliver and pay over to the successor trustee
the entire Trust Fund, together with all necessary instruments of transfer and
assignment or other documents properly executed necessary to effect such
transfer and such of the record or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the predecessor trustee shall execute and deliver such other instruments and
do such other things as may reasonably be required to more fully and certainly
vest and confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Master Servicer shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to the Rating Agencies. The expenses of
such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor to the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Percentage Interest) of each Class of
Certificates shall each have the power from time to time to appoint one or
more Persons to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside the state where the Trustee has its principal place of business where
such separate trustee or co-trustee is necessary or advisable (or the Trustee
has been advised by the Master Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust
Fund or any portion thereof in any such jurisdiction, shall be
exercised and performed by such separate trustee, co-trustee, or
custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more
than 50% of the Aggregate Voting Interests of the Certificates may at
any time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one
or more Authenticating Agents which shall be authorized to act on behalf of
the Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense incurred in connection
with any legal proceeding and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder, including the
costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder,
provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer and the Holders written
notice thereof promptly after the Trustee shall have knowledge
thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 6.11, the Trust Fund shall not be liable for settlement of
any such claim by the Trustee entered into without the prior consent
of the Depositor, which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Fees and Expenses of Trustee. The Trustee will receive
compensation and reimbursement or payment of its expenses hereunder and under
the Custodial Agreement from the Depositor as provided in the letter agreement
dated June 10, 1999 between the Depositor and the Trustee, which is attached
hereto as Exhibit M.
Section 6.13. Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Master Servicer, the Trustee shall request the Master Servicer to make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor. (a) The occurrence of any one or more of the following events shall
constitute an "Event of Default"):
(i) Any failure by the Master Servicer to furnish the
Trustee the Mortgage Loan data sufficient to prepare the reports
described in Section 4.03(a) which continues unremedied for a period
of one Business Day after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Trustee
or to such Master Servicer and the Trustee by the Holders of not less
than 25% of the Class Principal Amount (or Percentage Interest) of
each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days (or 15
days, in the case of a failure to maintain any Insurance Policy
required to be maintained pursuant to this Agreement) after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to such Master Servicer by the
Trustee, or to such Master Servicer and the Trustee by the Holders of
not less than 25% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby; 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,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or
any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial
condition or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to such
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall
dispose of all or substantially all of its assets, or consolidate
with or merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does not
meet the criteria for a successor servicer as specified in Section
9.27 hereof; or
(vii) If a representation or warranty set forth in Section
9.14 hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee, or to the
Master Servicer and the Trustee by the Holders of not less than 25%
of the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the
Master Servicer hereunder or an assignment of this Agreement by the
Master Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Percentage Interest) of each Class of
Certificates; or
(ix) The Servicer at any time is not either an FNMA- or
FHLMC- approved servicer, and the Master Servicer has not terminated
the rights and obligations of the Servicer under the Servicing
Agreement and replaced the Servicer with an FNMA- or FHLMC-approved
servicer within 45 days of the absence of such approval; or
(x) Any failure of the Master Servicer to remit to the
Trustee any payment required to be made to the Trustee for the
benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates affected thereby, terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. If an Event of Default
described in clause (x) of this Section 6.14 shall occur, then, in each and
every case, subject to applicable law, the Trustee, by notice in writing to
the Master Servicer, shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer, and only
in its capacity as Master Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it
to enable the Trustee or its designee to assume the defaulting Master
Servicer's functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated shall bear
all costs of a master servicing transfer, including but not limited to those
of the Trustee reasonably allocable to specific employees and overhead, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v) and (ix) to
the extent such reimbursement relates to the period prior to such Master
Servicer's termination.
If any Event of Default shall occur, the Trustee shall promptly
notify the Rating Agencies of the nature and extent of such Event of Default.
The Trustee shall immediately give written notice to the Master Servicer upon
such Master Servicer's failure to remit funds on the Deposit Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted to the Master Servicer hereunder. The Trustee and such
successor shall take such actions, consistent with this Agreement, as shall be
necessary to effectuate any such succession and may make other arrangements
with respect to the servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee
and any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the master servicing
functions and providing the Trustee and successor master servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer,
as applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering, cash, documents or records to it, (ii)
the failure of the Master Servicer to cooperate as required by this Agreement,
(iii) the failure of the Master Servicer to deliver the Mortgage Loan data to
the Trustee as required by this Agreement or (iv) restrictions imposed by any
regulatory authority having jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by
the Master Servicer in the performance of its obligations hereunder, except
that a default in the making of any required deposit to the Certificate
Account that would result in a failure of the Trustee to make any required
payment of principal of or interest on the Certificates may only be waived
with the consent of 100% of the affected Certificateholders. Upon any such
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 thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to Certificateholders, unless such Event of Default shall have been
cured or waived prior to the issuance of such notice and within such 45-day
period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement; provided, however, that the Trustee shall be under no
obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (i) the
conducting or defending of any administrative action or litigation hereunder
or in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal
liability or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default. In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans. (a) The respective
obligations and responsibilities of the Trustee and the Master Servicer
created hereby (other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02, the obligation of the Master
Servicer to make a final remittance to the Trustee for deposit into the
Certificate Account pursuant to Section 4.01 and the obligations of the Master
Servicer to the Trustee pursuant to Sections 9.10 and 9.14) shall terminate on
the earlier of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the sale of the property held by the Trust Fund in accordance with
Section 7.01(b) or (c); provided, however, that in no event shall the Trust
Fund created hereby continue beyond the earlier of (i) the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof, and (ii) the Latest Possible Maturity Date. Any
termination of the Trust Fund shall be carried out in such a manner so that
the termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring on after the date on which the
Aggregate Loan Balance is less than 10% of the Cut-off Date Aggregate Loan
Balance, the Class X Certificateholder has the option to cause the Trust Fund
to adopt a plan of complete liquidation pursuant to Section 7.03(a)(i) hereof
to sell all of its property. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Class X Certificateholder at a price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest
accrued thereon at the applicable Mortgage Rate with respect to any Mortgage
Loan to the Due Date in the Collection Period immediately preceding the
related Distribution Date to the date of such repurchase and (ii) the fair
market value of any REO Property and any other property held by any REMIC,
such fair market value to be determined by an appraiser or appraisers mutually
agreed upon by the Master Servicer and the Trustee. If the Class X
Certificateholder has not exercised such option by the close of business on
the third Distribution Date following the Distribution Date specified above,
the Depositor shall have the option to cause the Trust Fund to adopt a plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its
property to the Depositor at the Termination Price. If the Depositor elects to
exercise such right, then upon receipt of notice thereof the Trustee shall
promptly notify the Class X Certificateholder thereof, in writing, and shall
effect the transfer of the Mortgage Loans and related property to the
Depositor as provided herein only if the Trustee does not receive notification
from the Class X Certificateholder within ten Business Days of the sending of
such notice that such Certificateholder intends to promptly exercise its
option to purchase such Mortgage Loans and related property. The Master
Servicer or the Servicer (or the Trustee, if applicable) shall be reimbursed
from the Termination Price for any Mortgage Loan or related REO Property for
any Advances made or other amounts advanced with respect to the Mortgage Loans
that are reimbursable to the Master Servicer or the Servicer under this
Agreement or the Servicing Agreement (or to the Trustee hereunder), together
with any accrued and unpaid compensation due to the Master Servicer and
Servicer hereunder or thereunder.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
upon (x) the sale of all of the property of the Trust Fund by the Trustee
pursuant to Section 7.01(b) or (y) upon the final payment or other liquidation
of the last Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Master Servicer and the Certificate Registrar at the time such
notice is given to Holders of the Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Certificates shall
terminate and the Trustee shall terminate, or request the Master Servicer to
terminate, the Collection Account it maintains, the Certificate Account and
any other account or fund maintained with respect to the Certificates, subject
to the Trustee's obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
Section 7.03. Additional Trust Fund Termination Requirements. (a) Any
termination of the Trust Fund shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request of
the party exercising the option to purchase all of the Mortgage Loans pursuant
to Section 7.01(b)), and subsequently receives, an Opinion of Counsel (at the
expense of such requesting party), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (ii) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the Certificates, upon notification by the Directing
Holder or the Depositor that it intends to exercise its option to
cause the termination of the Trust Fund, the Trustee shall adopt a
plan of complete liquidation of the Trust Fund on behalf of each
REMIC, meeting the requirements of a qualified liquidation under the
REMIC Provisions;
(ii) Any sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after the
time of adoption of such a plan of complete liquidation and prior to
the time of making of the final payment on the Certificates;
(iii) On the date specified for final payment of the
Certificates, the Trustee shall make final distributions of principal
and interest on the Certificates in accordance with Section 5.02 and,
after payment of, or provision for any outstanding expenses,
distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such
final payment (other than cash retained to meet claims), and the
Trust Fund (and each REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Certificates
or the final distribution or credit to the Holders of the Residual
Certificates be made after the 89th day from the date on which the
plan of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the related REMIC and (ii) agrees to
take such other action as may be necessary to adopt a plan of complete
liquidation of the related REMIC, which authorization shall be binding upon
all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or the operation and management of the Trust Fund, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount (or Percentage Interest) of Certificates of each Class
affected thereby shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require
against the cost, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for sixty days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request has been given such Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Master Servicer. Such instrument or instruments (as
the action embodies therein and evidenced thereby) are herein sometimes
referred to as an "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agents shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee and Master Servicer, if made in the manner provided in
this Section. Each of the Trustee and Master Servicer shall promptly notify
the other of receipt of any such instrument by it, and shall promptly forward
a copy of such instrument to the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders,
by their purchase and acceptance of the Certificates, appoint Norwest Bank
Minnesota, National Association, as Master Servicer. For and on behalf of the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of the Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy. (a) The Master Servicer, at its
expense, shall maintain in effect a Master Servicer Fidelity Bond and a Master
Servicer Errors and Omissions Insurance Policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer's behalf, and covering errors and omissions in the performance
of the Master Servicer's obligations hereunder. The Master Servicer Errors and
Omissions Insurance Policy and the Master Servicer Fidelity Bond shall be in
such form and amount that would be consistent with coverage customarily
maintained by master servicers of mortgage loans similar to the Mortgage
Loans. The Master Servicer shall (i) require the Servicer to maintain an
Errors and Omissions Insurance Policy and the Servicer Fidelity Bond in
accordance with the provisions of the Servicing Agreement, (ii) cause the
Servicer to provide to the Master Servicer certificates evidencing that such
policy and bond is in effect and to furnish to the Master Servicer any notice
of cancellation, non-renewal or modification of the policy or bond received by
it, as and to the extent provided in the Servicing Agreement, and (iii)
furnish copies of the certificates and notices referred to in clause (ii) to
the Trustee upon its request.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve
funds relating to the Mortgage Loans. The total losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
such reports together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such bonding companies
or insurers, the Master Servicer shall promptly furnish a copy of such report
to the Trustee. Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly remitted by
the Master Servicer to the Trustee for deposit into the Certificate Account.
Any amounts relating to the Mortgage Loans collected by the Servicer under any
such bond or policy shall be remitted to the Master Servicer to the extent
provided in the Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of
its annual unaudited financial statements on or prior to May 31 of each year,
beginning May 31, 2000. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of
additional paid-in capital, statement of changes in financial position and all
related notes and schedules and shall be in comparative form, certified by a
nationally recognized firm of Independent Accountants to the effect that such
statements were examined and prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
year.
Section 9.04. Power to Act; Procedures. (a) The Master Servicer shall
master service the Mortgage Loans and shall have full power and authority,
subject to the REMIC Provisions and the provisions of Article X hereof, and
the Servicer shall have full power and authority (to the extent provided in
the Servicing Agreement) to do any and all things that it may deem necessary
or desirable in connection with the servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable; provided that the Master Servicer shall not take, or
knowingly permit the Servicer to take, any action that is inconsistent with or
prejudices the interests of the Trust Fund or the Certificateholders in any
Mortgage Loan or the rights and interests of the Depositor, the Trustee and
the Certificateholders under this Agreement. The Master Servicer shall
represent and protect the interests of the Trust Fund in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any
claim, proceeding or litigation regarding a Mortgage Loan and shall not make
or permit the Servicer to make any modification, waiver or amendment of any
term of any Mortgage Loan that would cause the Trust Fund to fail to qualify
as a REMIC or result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code. Without limiting the generality of the foregoing,
the Master Servicer in its own name or in the name of the Servicer, and the
Servicer, to the extent such authority is delegated to the Servicer by the
Master Servicer under the Servicing Agreement, is hereby authorized and
empowered by the Trustee when the Master Servicer or the Servicer, as the case
may be, believes it appropriate in its best judgment and in accordance with
Accepted Servicing Practices and the Servicing Agreement, to execute and
deliver, on behalf of itself and the Certificateholders, the Trustee or any of
them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
The Trustee shall furnish the Master Servicer, upon request, with any powers
of attorney empowering the Master Servicer or the Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the Mortgage Loans or the Mortgaged Property, in accordance with the Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, necessary or appropriate
to enable the Master Servicer to master service and administer the Mortgage
Loans and carry out its duties hereunder, in each case in accordance with
Accepted Servicing Practices (and the Trustee shall have no liability for
misuse of any such powers of attorney by the Master Servicer or the Servicer).
If the Master Servicer or the Trustee has been advised that it is likely that
the laws of the state in which action is to be taken prohibit such action if
taken in the name of the Trustee or that the Trustee would be adversely
affected under the "doing business" or tax laws of such state if such action
is taken in its name, then upon request of the Trustee, the Master Servicer
shall join with the Trustee in the appointment of a co-trustee pursuant to
Section 6.09 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee, be deemed to
be the agent of the Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause the Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the Servicing Agreement. Consistent with the foregoing, the
Master Servicer may, and may permit the Servicer to, in its discretion (i)
waive any late payment charge (but not any Prepayment Premium) and (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater
than 120 days; provided, however, that the maturity of any Mortgage Loan shall
not be extended past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any extension
described in clause (ii) above, the Master Servicer shall make or cause the
Servicer to make Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master
Servicer shall not, unless default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer, imminent, permit any modification,
waiver or amendment of any material term of any Mortgage Loan (including but
not limited to the interest rate, the principal balance, the amortization
schedule, or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Master Servicer shall
have provided or caused to be provided to the Trustee an Opinion of Counsel in
writing to the effect that such modification, waiver or amendment would not be
treated as giving rise to a new debt instrument for federal income tax
purposes and would not adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
the Servicer; Enforcement of Servicer's Obligations. (a) The Servicing
Agreement requires the Servicer to service the Mortgage Loans in accordance
with the provisions thereof. References in this Agreement to actions taken or
to be taken by the Master Servicer include actions taken or to be taken by the
Servicer on behalf of the Master Servicer. Any fees and other amounts payable
to the Servicer shall be deducted from amounts remitted to the Master Servicer
by the Servicer and shall not be an obligation of the Trust.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer under the
Servicing Agreement, and shall, in the event that the Servicer fails to
perform its obligations in accordance with the Servicing Agreement, terminate
the rights and obligations of the Servicer thereunder and either act as
servicer of the related Mortgage Loans or cause Xxxxxx Capital to enter into a
Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the
related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor initially (i)
from a general recovery resulting from such enforcement only to the extent, if
any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loans, (ii) from a specific recovery of costs, expenses or attorneys'
fees against the party against whom such enforcement is directed, and then,
(iii) to the extent that such amounts are insufficient to reimburse the Master
Servicer for the costs of such enforcement, from the Collection Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. (a)
To the extent provided in the Servicing Agreement, the Master Servicer shall
cause the Servicer to establish and maintain one or more custodial accounts at
a depository institution (which may be a depository institution with which the
Master Servicer or the Servicer establishes accounts in the ordinary course of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an "Escrow Account") and to deposit
therein any collections of amounts received with respect to amounts due for
taxes, assessments, water rates, Standard Hazard Insurance Policy premiums or
any comparable items for the account of the Mortgagors. Withdrawals from any
Escrow Account may be made (to the extent amounts have been escrowed for such
purpose) only in accordance with the Servicing Agreement. The Servicer shall
be entitled to all investment income not required to be paid to Mortgagors on
any Escrow Account maintained by the Servicer. The Master Servicer shall make
(or cause to be made) to the extent provided in the Servicing Agreement
advances to the extent necessary in order to effect timely payment of taxes,
water rates, assessments, Standard Hazard Insurance Policy premiums or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it has determined that the funds so advanced are recoverable from escrow
payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by the Servicer in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable by
the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
Servicer. (a) The Master Servicer shall be entitled to terminate the rights
and obligations of the Servicer under the Servicing Agreement in accordance
with the terms and conditions of the Servicing Agreement and without any
limitation by virtue of this Agreement; provided, however, that in the event
of termination of the Servicing Agreement by the Master Servicer or the
Servicer, the Master Servicer shall provide for the servicing of the Mortgage
Loans by a successor Servicer to be appointed as provided in the Servicing
Agreement.
The Master Servicer agrees that it will use its best efforts to
effect the transfer of servicing to a successor Servicer within the first one
to two weeks after the termination of the Servicer. The parties acknowledge
that notwithstanding the preceding sentence, there may be a transition period,
not to exceed 60 days from the above-mentioned two-week period, in order to
effect the transfer of servicing to a successor Servicer.
Notwithstanding the foregoing provisions to the extent applicable to
termination of the rights and obligations of the Servicer, the Directing
Holder, if any, shall have the rights accorded to it under the Servicing
Agreement.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties
made by the terminated Servicer in respect of the related Mortgage Loans, and
in the event of any such assumption by the successor Servicer, the Trustee or
the Master Servicer, as applicable, may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement. Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of the Servicing Agreement or
arrangements. The Master Servicer shall ensure that the Mortgage Loans are
serviced in accordance with the provisions of this Agreement and shall enforce
the provisions of the Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section 9.09. No Contractual Relationship Between the Servicer and
Trustee or Depositor. Any Servicing Agreement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving the
Servicer in its capacity as such and not as an originator shall be deemed to
be between the Servicer, Xxxxxx Capital and the Master Servicer, and the
Trustee and the Depositor shall not be deemed parties thereto and shall have
no claims, rights, obligations, duties or liabilities with respect to the
Servicer except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. (a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee shall be deemed to have assumed all
of the Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. To the
extent provided in the Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicer to enforce such clauses in accordance with the Servicing Agreement.
If applicable law prohibits the enforcement of a due-on-sale clause or such
clause is otherwise not enforced in accordance with the Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may
be released from liability in accordance with the Servicing Agreement.
Section 9.12. Release of Mortgage Files. (a) Upon becoming aware of
the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes for payment to Certificateholders on the next
Distribution Date, the Master Servicer will, or will cause the Servicer to,
promptly notify the Trustee (or the Custodian) by a certification (which
certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited in
the Collection Account maintained by the Master Servicer pursuant to Section
4.01 have been or will be so deposited) of a Servicing Officer and shall
request the Trustee or the Custodian, to deliver to the Servicer the related
Mortgage File. Upon receipt of such certification and request, the Trustee or
the Custodian (with the consent, and at the direction of the Trustee), shall
promptly release the related Mortgage File to the Servicer and the Trustee
shall have no further responsibility with regard to such Mortgage File. Upon
any such payment in full, the Master Servicer is authorized, and the Servicer,
to the extent such authority is delegated to the Servicer by the Master
Servicer under the Servicing Agreement, is authorized, to give, as agent for
the Trustee, as the mortgagee under the Mortgage that secured the Mortgage
Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case may
be, shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with Accepted Servicing
Practices and the Servicing Agreement, the Trustee shall execute such
documents as shall be prepared and furnished to the Trustee by the Master
Servicer, or by the Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
or Custodian, shall, upon request of the Master Servicer, or of the Servicer,
and delivery to the Trustee or the Custodian, of a trust receipt signed by a
Servicing Officer substantially in the form of Exhibit C, release the related
Mortgage File held in its possession or control to the Master Servicer (or the
Servicer). Such trust receipt shall obligate the Master Servicer or Servicer
to return the Mortgage File to the Trustee or Custodian, as applicable, when
the need therefor by the Master Servicer or Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
trust receipt shall be released by the Trustee or the Custodian, as
applicable, to the Master Servicer (or the Servicer).
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The Master Servicer shall transmit, or
cause the Servicer to transmit, to the Trustee such documents and instruments
coming into the possession of the Master Servicer or the Servicer from time to
time as are required by the terms hereof to be delivered to the Trustee. Any
funds received by the Master Servicer or by the Servicer in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer or by
the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of the Servicer to retain
its Servicing Fee as provided in the Servicing Agreement. The Master Servicer
shall, and shall (to the extent provided in the Servicing Agreement) cause the
Servicer to, provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the
Office of Thrift Supervision, the FDIC and the supervisory agents and
examiners of such Office and Corporation or examiners of any other federal or
state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or the Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by the Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and the Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or the
Servicer under this Agreement or the Servicing Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from Xxxxxx Capital to the Depositor not to constitute a sale, the
Trustee shall have a security interest in the Mortgage Loans and in all
Mortgage Files representing such Mortgage Loans and in all funds now or
hereafter held by, or under the control of, the Servicer or the Master
Servicer that are collected by the Servicer or the Master Servicer in
connection with the Mortgage Loans, whether as scheduled installments of
principal and interest or as full or partial prepayments of principal or
interest or as Liquidation Proceeds or Insurance Proceeds or otherwise, and in
all proceeds of the foregoing and proceeds of proceeds (but excluding any fee
or other amounts to which the Servicer is entitled under the Servicing
Agreement, or the Master Servicer or the Depositor is entitled to hereunder);
and the Master Servicer agrees that so long as the Mortgage Loans are assigned
to and held by the Trustee, all documents or instruments constituting part of
the Mortgage Files, and such funds relating to the Mortgage Loans which come
into the possession or custody of, or which are subject to the control of, the
Master Servicer or the Servicer shall be held by the Master Servicer or the
Servicer for and on behalf of the Trustee as the Trustee's agent and bailee
for purposes of perfecting the Trustee's security interest therein as provided
by the applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize the Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or
payable to the Trustee, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Mortgage Loan or any funds
collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor and
the Trustee, for the benefit of the Certificateholders, as of the Closing Date
that:
(i) it is validly existing and in good standing under the
laws of the United States of America as a national banking
association, and as Master Servicer has full power and authority to
transact any and all business contemplated by this Agreement and to
execute, deliver and comply with its obligations under the terms of
this Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the part of
the Master Servicer;
(ii) the execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Master Servicer
is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and
adversely affect the Master Servicer's ability to perform its
obligations under this Agreement;
(iii) this Agreement constitutes, assuming due
authorization, execution and delivery hereof by the other respective
parties hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law);
(iv) the Master Servicer is not in default with respect to
any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance by
the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the
primary business of which is the servicing of conventional
residential mortgage loans, is an FNMA- and FHLMC-approved
seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Master
Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02
each of which is in full force and effect, and each of which provides
at least such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, 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 Master Servicer's
representations and warranties contained in Section 9.14(a). It is understood
and agreed that the enforcement of the obligation of the Master Servicer set
forth in this Section to indemnify the Depositor and the Trustee as provided
in this Section constitutes the sole remedy (other than as set forth in
Section 6.14) of the Depositor and the Trustee, respecting a breach of the
foregoing representations and warranties. Such indemnification shall survive
any termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer or the Trustee or notice thereof by any one of such
parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, 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
Depositor's representations and warranties contained in Sections 2.03(a)
through (f) hereof. It is understood and agreed that the enforcement of the
obligation of the Depositor set forth in this Section to indemnify the Master
Servicer as provided in this Section constitutes the sole remedy of the Master
Servicer respecting a breach by the Depositor of the representations and
warranties in Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out
of the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. On or before the
Closing Date, the Master Servicer shall cause to be delivered to the
Depositor, Xxxxxx Brothers Inc. and the Trustee an Opinion of Counsel, dated
the Closing Date, in form and substance reasonably satisfactory to the
Depositor and Xxxxxx Brothers Inc., as to the due authorization, execution and
delivery of this Agreement by the Master Servicer and the enforceability
thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan, the Master Servicer shall maintain, or cause to be maintained
by the Servicer, standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of this Agreement and
the Servicing Agreement, as applicable. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set
forth in the Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master
Servicer, or by the Servicer, under any insurance policies maintained pursuant
to this Section 9.16 (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the Servicing Agreement) shall be deposited into
the Collection Account, subject to withdrawal pursuant to Section 4.02. Any
cost incurred by the Master Servicer or the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to the amount owing under the Mortgage Loan where the terms of the Mortgage
Loan so permit; provided, however, that the addition of any such cost shall
not be taken into account for purposes of calculating the distributions to be
made to Certificateholders and shall be recoverable by the Master Servicer or
the Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. The
Master Servicer shall, or shall cause the Servicer (to the extent provided in
the Servicing Agreement) to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies with respect to
the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured's claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed to
the Master Servicer (or disbursed to the Servicer and remitted to the Master
Servicer) in respect of such policies or bonds shall be promptly deposited in
the Collection Account upon receipt, except that any amounts realized that are
to be applied to the repair or restoration of the related Mortgaged Property
as a condition requisite to the presentation of claims on the related Mortgage
Loan to the insurer under any applicable Insurance Policy need not be so
deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit the Servicer (consistent
with the Servicing Agreement) to take, any action that would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of such Master Servicer or Servicer, would have
been covered thereunder. The Master Servicer shall use its best reasonable
efforts to keep in force and effect, or to cause the Servicer to keep in force
and effect (to the extent that the Mortgage Loan requires the Mortgagor to
maintain such insurance), primary mortgage insurance applicable to each
Mortgage Loan in accordance with the provisions of this Agreement and the
Servicing Agreement, as applicable. The Master Servicer shall not, and shall
not permit the Servicer to, cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or the
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents. The Trustee (or its custodian, if any, as directed by
the Trustee), shall retain possession and custody of the originals of the
Primary Mortgage Insurance Policies or certificate of insurance if applicable
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its custodian, if any, as directed by the Trustee) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall promptly deliver or cause to be delivered to the Trustee (or its
custodian, if any, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. [RESERVED]
Section 9.21. Compensation to the Master Servicer. The Master
Servicer shall (i) be entitled, at its election, either (a) to pay itself the
Master Servicing Fee, as reduced pursuant to Section 5.05, in respect of the
Mortgage Loans out of any Mortgagor payment on account of interest prior to
the deposit of such payment in the Collection Account it maintains or (b) to
withdraw from the Collection Account, subject to Section 5.05, the Master
Servicing Fee to the extent permitted by Section 4.02(iv). The Master Servicer
shall also be entitled, at its election, either (a) to pay itself the Master
Servicing Fee in respect of each delinquent Mortgage Loan master serviced by
it out of Liquidation Proceeds in respect of such Mortgage Loan or other
recoveries with respect thereto to the extent permitted in Section 4.02 or (b)
to withdraw from the Collection Account it maintains the Master Servicing Fee
in respect of each Liquidated Mortgage Loan to the extent of such Liquidation
Proceeds or other recoveries, to the extent permitted by Section 4.02.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any Prepayment
Premium) shall be retained by the Master Servicer (or the Servicer) and shall
not be deposited in the Collection Account. If the Master Servicer does not
retain or withdraw the Master Servicing Fee from the Collection Account as
provided herein, the Master Servicer shall be entitled to direct the Trustee
to pay the Master Servicing Fee to such Master Servicer by withdrawal from the
Certificate Account to the extent that payments have been received with
respect to the applicable Mortgage Loan. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder
and shall not be entitled to reimbursement therefor except as provided in this
Agreement. The provisions of this Section 9.21 are subject to the provisions
of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Servicer shall use its reasonable best
efforts to sell, or, to the extent provided in the Servicing Agreement any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the Servicing Agreement, as applicable, but in all events
within the time period, and subject to the conditions set forth in Article X
hereof. Pursuant to its efforts to sell such REO Property, the Servicer shall
protect and conserve such REO Property in the manner and to such extent
required by Section 4.13 of the Servicing Agreement, subject to Article X
hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from the Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the Servicer, upon the final disposition
of any REO Property, shall be entitled to reimbursement for any related
unreimbursed Advances and other unreimbursed advances as well as any unpaid
Master Servicing Fees or Servicing Fees from Liquidation Proceeds received in
connection with the final disposition of such REO Property; provided, that any
such unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees may be reimbursed or paid, as the case may be, prior to final
disposition, out of any net rental income or other net amounts derived from
such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the Servicer as
provided above, shall be deposited in the Collection Account on or prior to
the Determination Date in the month following receipt thereof (and the Master
Servicer shall provide prompt written notice to the Trustee upon such deposit)
and be remitted by wire transfer in immediately available funds to the Trustee
for deposit into the Certificate Account on the next succeeding Deposit Date.
Section 9.23. Preparation of Tax Returns and Other Reports. (a) The
Master Servicer shall prepare or cause to be prepared on behalf of the Trust
Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Trustee shall file,
federal tax returns and appropriate state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and
the Trustee shall forward copies to the Depositor of all such returns and Form
1099 information and such other information within the control of the Trustee
as the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Trustee as are required by the Code and the REMIC Provisions to be
furnished to them, and the Master Servicer or the Trustee will prepare, to the
extent that they are familiar with applicable state requirements, and the
Trustee will file, annual reports (other than tax returns), if any, required
by applicable state authorities, will file copies of this Agreement with the
appropriate state authorities as may be required by applicable law, and will
prepare and disseminate to Certificateholders Form 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Master Servicer will indemnify the Trustee for any
liability of or assessment against the Trustee resulting from any error in any
of such tax or information returns resulting from errors in the information
provided by such Master Servicer (other than any such information that is
derived solely from information provided by the Servicer).
(b) The Master Servicer shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund, an application for an
employer identification number on IRS Form SS-4 or by any other acceptable
method. The Master Servicer, upon receipt from the IRS of the Notice of
Taxpayer Identification Number Assigned, shall promptly forward a copy of such
notice to the Trustee and the Depositor.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K and thereafter the Master Servicer shall prepare or
cause to be prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly
current reports on Form 8-K, on behalf of the Trust Fund, as may be required
by applicable law, for filing with the Securities and Exchange Commission (the
"SEC"). The Trustee will sign each such report on behalf of the Trust Fund.
The Master Servicer will forward a copy of each such report to the Depositor
promptly after such report has been filed with the SEC. The Master Servicer
agrees to use its best efforts to seek to terminate such filing obligation
promptly after the period during which such filings are required under the
Securities Exchange Act of 1934. Promptly after filing a Form 15 or other
applicable form with the SEC in connection with such termination, the Master
Servicer shall deliver to the Depositor a copy of such form together with
copies of confirmations of receipt by the SEC of each report filed therewith
on behalf of the Trust Fund.
Section 9.24. Reports to the Trustee. (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall forward to the Trustee
a statement, deemed to have been certified by a Servicing Officer, setting
forth the status of the Collection Account maintained by the Master Servicer
as of the close of business on the related Distribution Date, indicating that
all distributions required by this Agreement to be made by the Master Servicer
have been made (or if any required distribution has not been made by the
Master Servicer, specifying the nature and status thereof) and showing, for
the period covered by such statement, the aggregate of deposits into and
withdrawals from the Collection Account maintained by the Master Servicer.
Copies of such statement shall be provided by the Master Servicer to the
Depositor, Attention: Contract Finance, and, upon request, to any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail to provide such copies to the Certificateholders
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicer or by the Depositor.
(c) The Master Servicer shall prepare a monthly statement to
Certificateholders which will set forth certain information regarding the
Certificates and the Mortgage Pools as provided in Section 4.03.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee and the Rating Agencies on or
before May 31 of each year, commencing on May 31, 2000, an Officer's
Certificate, certifying that with respect to the period ending on the
immediately preceding December 31: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or
portion thereof and its performance under this Agreement, (ii) to the best of
such Servicing Officer's knowledge, based on such review, such Master Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof, (iii) nothing has come to the attention of such
Servicing Officer to lead such Servicing Officer to believe that the Servicer
has failed to perform any of its duties, responsibilities and obligations
under its Servicing Agreement in all material respects throughout such year,
or, if there has been a material default in the performance or fulfillment of
any such duties, responsibilities or obligations, specifying each such default
known to such Servicing Officer and the nature and status thereof, and (iv)
the Master Servicer has received from the Servicer the Servicer's annual
certificate of compliance and a copy of the Servicer's annual audit report, in
each case to the extent required under the Servicing Agreement, or, if any
such certificate or report has not been received by the Master Servicer, the
Master Servicer is using its best reasonable efforts to obtain such
certificate or report .
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. If
the Master Servicer (or any of its Affiliates) has, during the course of any
fiscal year, directly serviced any of the Mortgage Loans, then the Master
Servicer at its expense shall cause a nationally recognized firm of
independent certified public accountants to furnish a statement to the
Trustee, the Rating Agencies and the Depositor on or before May 31 of each
year, commencing on May 31, 2000 to the effect that, with respect to the most
recently ended fiscal year, such firm has examined certain records and
documents relating to the Master Servicer's performance of its servicing
obligations under this Agreement and pooling and servicing and trust
agreements in material respects similar to this Agreement and to each other
and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for FHLMC or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in
compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages Serviced by
FHLMC requires it to report. Copies of such statements shall be provided to
any Certificateholder upon request by the Master Servicer, or by the Trustee
at the expense of the Master Servicer if the Master Servicer shall fail to
provide such copies. If such report discloses exceptions that are material,
the Master Servicer shall advise the Trustee whether such exceptions have been
or are susceptible of cure, and will take prompt action to do so.
Section 9.27. Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor to the Master 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;
provided, however, that the successor or resulting Person to the Master
Servicer shall be a Person that shall be qualified and approved to service
mortgage loans for FNMA or FHLMC and shall have a net worth of not less than
$15,000,000.
Section 9.28. Resignation of Master Servicer. Except as otherwise
provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall not
resign from the obligations and duties hereby imposed on it unless it or the
Trustee determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the
Master Servicer's responsibilities and obligations under this Agreement.
Notice of such resignation shall be given promptly by the Master Servicer to
the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the Master
Servicer shall have the right without the prior written consent of the
Trustee, the Depositor or the Rating Agencies to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Master Servicer hereunder. In no case, however, shall
any such delegation, subcontracting or assignment to an Affiliate of the
Master Servicer relieve the Master Servicer of any liability hereunder. Notice
of such permitted assignment shall be given promptly by the Master Servicer to
the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Master Servicer are transferred to a successor master servicer,
the entire amount of the Master Servicing Fees and other compensation payable
to the Master Servicer pursuant hereto, including amounts payable to or
permitted to be retained or withdrawn by the Master Servicer pursuant to
Section 9.21 hereof, shall thereafter be payable to such successor master
servicer.
Section 9.30. Limitation on Liability of the Master Servicer and
Others. Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Master Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the Mortgage
Loans in accordance with this Agreement and that in its opinion may involve it
in any expenses or liability; provided, however, that the Master Servicer may
in its sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 4.02.
The Master Servicer shall not be liable for any acts or omissions of
the Servicer. In particular, the Master Servicer shall not be liable for any
servicing errors or interruptions resulting from any failure of the Servicer
to maintain computer and other information systems that are year-2000
compliant.
Section 9.31. Indemnification; Third-Party Claims. The Master
Servicer agrees to indemnify the Depositor and the Trustee, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses that the Depositor and the Trustee may sustain as a result of the
failure of the Master Servicer to perform its duties and master service the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor
and the Trustee shall immediately notify the Master Servicer if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Depositor or the Trustee to indemnification hereunder, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
Section 9.32. Alternative Index. In the event that the Index for any
Mortgage Loan, as specified in the related Mortgage Note, becomes unavailable
for any reason, the Master Servicer shall select an alternative index, which
in all cases shall be an index that constitutes a qualified rate on a regular
interest under the REMIC Provisions, in accordance with the terms of such
Mortgage Note or, if such Mortgage Note does not make provision for the
selection of an alternative index in such event, the Master Servicer shall,
subject to applicable law, select an alternative index based on information
comparable to that used in connection with the original Index and, in either
case, such alternative index shall thereafter be the Index for such Mortgage
Loan.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) REMIC elections as set forth
in the Preliminary Statement shall be made by the Trustee on Forms 1066 or
other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be as
designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Master Servicer shall pay any and all tax related expenses
(not including taxes) of each REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Master Servicer in fulfilling
its duties hereunder (including its duties as tax return preparer). The Master
Servicer shall be entitled to reimbursement of expenses to the extent provided
in clause (i) above from the Collection Account.
(d) The Master Servicer shall prepare, and the Trustee shall sign and
file, all of each REMIC's federal and state tax and information returns as
such REMIC's direct representative. The expenses of preparing and filing such
returns shall be borne by the Master Servicer.
(e) The Master Servicer or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Master Servicer shall provide
(i) to the Treasury or other governmental authority such information as is
necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates
shall take any action or cause any REMIC to take any action necessary to
create or maintain the status of any REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Master Servicer nor the Holder of any
Residual Certificate shall take any action, cause any REMIC to take any action
or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any REMIC as a REMIC or (ii) result in the imposition
of a tax upon any REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee and the Master Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to any REMIC or the assets therein, or causing any
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, any Holder of a Residual Certificate will consult with the
Trustee and the Master Servicer, or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to
occur with respect to any REMIC, and no such Person shall take any such action
or cause any REMIC to take any such action as to which the Trustee or the
Master Servicer has advised it in writing that an Adverse REMIC Event could
occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available,
out of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the
case may be.
(h) The Master Servicer shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) On or before April 15 of each calendar year beginning in 2000,
the Master Servicer shall deliver to the Trustee and each Rating Agency an
Officer's Certificate stating, without regard to any actions taken by any
party other than the Master Servicer, the Master Servicer's compliance with
the provisions of this Section 10.01.
(l) The Trustee shall treat the Basis Risk Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation Section 1.860G-2(h)
that is owned by the Holder of the Class X Certificate and that is not an
asset of the REMIC. The Trustee shall treat the rights of the Class A1, Class
A2, Class A3, Class M1, Class M2, Class M3 and Class B Certificateholders to
receive payments from any Basis Risk Reserve Fund in the event of a Basis Risk
Shortfall as rights in an interest rate cap contract written by the Class X
Certificateholder in favor of the Class A1, Class A2, Class A3, Class M1,
Class M2, Class M3 and Class B Certificateholders. Thus, each Class A1, Class
A2, Class A3, Class IO, Class M1, Class M2, Class M3 and Class B Certificate
shall be treated as representing not only ownership of regular interests in
REMIC 4, but also ownership of an interest in two discrete interest rate cap
contracts. For purposes of determining the issue prices of the REMIC 4 regular
interests, the Trustee shall assume that the interest rate cap contracts have
only a nominal value of $1,000 each.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to any REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of any such REMIC as a REMIC or of the interests therein
other than the Residual Certificates as the regular interests therein, (b)
affect the distribution of interest or principal on the Certificates, (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement) or (d) cause any
such REMIC to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. (a) In the event that any REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Master Servicer of its
duties and obligations set forth herein, the Master Servicer shall indemnify
the Holder of the related Residual Certificate against any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Master Servicer shall not be liable
for any such Losses attributable to the action or inaction of the Trustee, the
Depositor, the Class X Certificateholder or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the Master Servicer has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of such Residual Certificate
now or hereafter existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Master Servicer have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Master Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the Certificates).
(b) If the Internal Revenue Service determines that one of the REMICs
established hereunder recognized income from a prohibited transaction within
the meaning of Section 860F(a)(2) of the Code as a result of the lapse of the
Class X Certificateholder's right to effect a Special Termination of the Trust
Fund by purchasing the assets of the Trust Fund, then Xxxxxx Capital shall
indemnify the Trust Fund for any such tax and any tax imposed upon such
indemnification.
Section 10.04. REO Property. (a) Notwithstanding any other provision
of this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not, and shall, to the extent provided in the Servicing
Agreement, not permit the Servicer to, rent, lease, or otherwise earn income
on behalf of any REMIC with respect to any REO Property which might cause such
REO Property to fail to qualify as "foreclosure" property within the meaning
of section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
"income from non-permitted assets" within the meaning of section 860F(a)(2) of
the Code or any "net income from foreclosure property" which is subject to tax
under the REMIC Provisions unless the Master Servicer has advised, or has
caused the Servicer to advise, the Trustee in writing to the effect that,
under the REMIC Provisions, such action would not adversely affect the status
of any REMIC as a REMIC and any income generated for any REMIC by the REO
Property would not result in the imposition of a tax upon such REMIC.
(b) The Master Servicer shall make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Master Servicer
shall dispose of any REO Property within three years of its acquisition by the
Trust Fund unless the Trustee has received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC Provisions and
any relevant proposed legislation and under applicable state law, the REMIC
may hold REO Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a Federal or state tax
upon such REMIC. If the Trustee has received such an extension, then the
Trustee, or the Master Servicer, acting on its behalf hereunder, shall
continue to attempt to sell the REO Property for its fair market value for
such period longer than three years as such extension permits (the "Extended
Period"). If the Trustee has not received such an extension and the Trustee,
or the Master Servicer acting on behalf of the Trustee hereunder is unable to
sell the REO Property within 33 months after its acquisition by the Trust Fund
or if the Trustee has received such an extension, and the Trustee, or the
Master Servicer acting on behalf of the Trustee hereunder, is unable to sell
the REO Property within the period ending three months before the close of the
Extended Period, the Master Servicer shall before the end of the three year
period or the Extended Period, as applicable, (i) purchase such REO Property
at a price equal to the REO Property's fair market value or (ii) auction the
REO Property to the highest bidder (which may be the Master Servicer) in an
auction reasonably designed to produce a fair price prior to the expiration of
the three-year period or the Extended Period, as the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time
to time by the Depositor, the Master Servicer and the Trustee, without notice
to or the consent of any of the Holders, (i) to cure any ambiguity, (ii) to
cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document, or to correct or supplement
any provision herein which may be inconsistent with any other provisions
herein, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, adversely affect the status of any REMIC created pursuant to this
Agreement, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant
to this paragraph, the Trustee may require an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be
deemed not to adversely affect in any material respect any Holder, if the
Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce the then current rating
assigned to the Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby 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 be made unless the
Trustee receives an Opinion of Counsel, at the expense of the party requesting
the change, that such change will not adversely affect the status of any REMIC
as a REMIC or cause a tax to be imposed on such REMIC; and provided further,
that no such amendment may (i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Principal Amount
(or Percentage Interest) of Certificates of each Class, the Holders of which
are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount (or Percentage Interest) of each
Class of Certificates affected thereby. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
any Class of Book-Entry Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to any amendment of the Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Percentage Interest), Certificates owned by
the Depositor, the Master Servicer, the Trustee or the Servicer or Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Trustee or the Servicer or any Affiliate
thereof.
Section 11.05. Provision of Information. (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor, Master
Servicer and the Trustee agree to cooperate with each other to provide to any
Certificateholders and to any prospective purchaser of Certificates designated
by such Certificateholder, upon the request of such Certificateholder or
prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in providing such information shall be reimbursed by the Depositor.
(b) The Master Servicer will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 9.23(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Master Servicer in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to the Depositor, Attention: Contract
Finance, a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law. 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 REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Structured Asset Securities
Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxx, (b) in the case of the Trustee, The First National Bank
of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Global Trust Services and (c) in the case of the Master
Servicer, Norwest Bank Minnesota, National Association, 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000; Attention: Master Servicing, or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Section
11.14.
Section 11.12. Special Notices to the Rating Agencies. (a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14;
(vi) the making of a final payment pursuant to Section 7.02;
and
(vii) any termination of the rights and obligations of the
Servicer under the Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier,
as follows:
If to DCR, to:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
If to S&P, to:
Standard & Poor's Rating Services
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agencies reports prepared
pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Directing Holder agrees, by
its acceptance of the Class X Certificate, that it shall provide written
notice to the Trustee and the Master Servicer thirty days prior to any
transfer or assignment by the Directing Holder of its rights under the
Servicing Agreement or of the servicing thereunder or delegation of its rights
or duties thereunder or any portion thereof to any Person other than the
Servicer under such Servicing Agreement. In addition, the ability of the
Directing Holder to transfer or assign its rights and delegate its duties
under the Servicing Agreement or to transfer the servicing thereunder to a
successor servicer shall be subject to the following conditions:
(i) Such successor servicer must be qualified to service
loans for FNMA or FHLMC, and must be a member in good standing of
MERS;
(ii) Such successor servicer must satisfy the
seller/servicer eligibility standards in the Servicing Agreement,
exclusive of any experience in mortgage loan origination, and must be
reasonably acceptable to the Master Servicer, whose approval shall
not be unreasonably withheld;
(iii) Such successor servicer must execute and deliver to
the Trustee and the Master Servicer an agreement, in form and
substance reasonably satisfactory to the Trustee and the Master
Servicer, that contains an assumption by such successor servicer of
the due and punctual performance and observance of each covenant and
condition to be performed and observed by the Servicer under the
Servicing Agreement;
(iv) There must be delivered to the Trustee a letter from
each Rating Agency to the effect that such transfer of servicing will
not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates;
(v) The Directing Holder shall, at its cost and expense,
take such steps, or cause the terminated Servicer to take such steps,
as may be necessary or appropriate to effectuate and evidence the
transfer of the servicing of the Mortgage Loans to such successor
servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Directing Holder shall
cause the prior Servicer to timely mail to each obligor under a
Mortgage Loan any required notices or disclosures describing the
transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of
servicing, the Directing Holder shall cause the prior Servicer to
transmit to any related insurer notification of such transfer of
servicing; (C) on or prior to the effective date of such transfer of
servicing, the Directing Holder shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and any
related records or materials; (D) on or prior to the effective date
of such transfer of servicing, the Directing Holder shall cause the
prior Servicer to transfer to the successor servicer, or, if such
transfer occurs after a Remittance Date but before the next
succeeding Deposit Date, to the Master Servicer, all funds held by
the Servicer in respect of the Mortgage Loans; (E) on or prior to the
effective date of such transfer of servicing, the Directing Holder
shall cause the prior Servicer to, after the effective date of the
transfer of servicing to the successor servicer, continue to forward
to such successor servicer, within one Business Day of receipt, the
amount of any payments or other recoveries received by the prior
Servicer, and to notify the successor servicer of the source and
proper application of each such payment or recovery; and (F) the
Directing Holder shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such
transfer in such manner and to such extent as the successor servicer
may reasonably request.
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master
Servicer have caused their names to be signed hereto by their respective
officers hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Assistant Secretary
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trust Officer
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of June 1,
1999 among Structured Asset Securities Corporation, as
Depositor, The First National Bank of Chicago, as Trustee,
and Norwest Bank Minnesota, National Association, as Master
Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
1999-BC2
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as [Custodian on behalf of
the] Trustee, hereby certifies that it (or its custodian) has received the
documents listed in Section 2.01(b) of the Trust Agreement for each Mortgage
File pertaining to each Mortgage Loan listed on Schedule A, to the Trust
Agreement, subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
[[Custodian], on behalf of]
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:______________________________
Name:
Title:
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of June 1,
1999 among Structured Asset Securities Corporation, as
Depositor, The First National Bank of Chicago, as Trustee,
and Norwest Bank Minnesota, National Association, as Master
Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
1999-BC2
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as [Custodian on behalf of the] Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents identified above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[[Custodian], on behalf of]
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:_______________________________
Name:
Title:
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of June 1,
1999 among Structured Asset Securities Corporation, as
Depositor, The First National Bank of Chicago, as Trustee,
and Norwest Bank Minnesota, National Association, as Master
Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
1999-BC2
Ladies and Gentlemen:
In accordance with Section 2.02(c) of the Trust Agreement, the
undersigned, as [Custodian on behalf of the] Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[[Custodian], on behalf of]
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:________________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of The First National Bank of Chicago, as trustee
(the "Trustee") under the Trust Agreement dated as of June 1, 1999, among
Structured Asset Securities Corporation, as Depositor, the Trustee and the
Master Servicer relating to Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 1999-BC2, without recourse.
----------------------------------
[current signatory on note]
By:_______________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of June 1, 1999 among
Structured Asset Securities Corporation, as Depositor, Norwest Bank Minnesota,
National Association, as Master Servicer, and you, as Trustee (the "Trust
Agreement"), the undersigned Master Servicer hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full. (The Master Servicer hereby certifies
that all amounts received in connection with the loan have been or will be
credited to the Collection Account or the Certificate Account (whichever is
applicable) pursuant to the Trust Agreement.)
____ 2. The Mortgage Loan is being foreclosed.
____ 3. Mortgage Loan substituted. (The Master Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Mortgage File pursuant to the Trust Agreement.)
____ 4. Mortgage Loan purchased. (The Master Servicer hereby certifies
that the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
____ 5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed (in which case the Mortgage File will be
returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
----------------------------------
[Name of Master Servicer]
By:_______________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser]
_________________________________________ (the "Purchaser"),
a _______________________ [description of type of entity]
duly organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she]
makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization"
within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code") and will not
be a "disqualified organization" as of [date of transfer],
and that the Purchaser is not acquiring a Residual
Certificate (as defined in the Agreement) for the account
of, or as agent (including a broker, nominee, or other
middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision
thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its
activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as
described in Code Section 1381(a)(2)(C), any "electing large
partnership" within the meaning of Section 775 of the Code,
or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511.
4. That the Purchaser is not, and on __________ [insert date of
transfer of Residual Certificate to Purchaser] will not be,
and is not and on such date will not be investing the assets
of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Code Section 4975 or a
person or entity that is using the assets of any employee
benefit plan or other plan to acquire a Residual
Certificate.
5. That the Purchaser hereby acknowledges that under the terms
of the Trust Agreement (the "Agreement") among Structured
Asset Securities Corporation, The First National Bank of
Chicago, as Trustee and Norwest Bank Minnesota, National
Association, as Master Servicer, dated as of June 1, 1999,
no transfer of the Residual Certificates shall be permitted
to be made to any person unless the Trustee has received a
certificate from such transferee to the effect that such
transferee is not an employee benefit plan subject to ERISA
or a plan subject to Section 4975 of the Code and is not
using the assets of any employee benefit plan or other plan
to acquire Residual Certificates.
6. That the Purchaser does not hold REMIC residual securities
as nominee to facilitate the clearance and settlement of
such securities through electronic book-entry changes in
accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local
taxes legally required to be paid with respect to such
Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate
to any person or entity (i) as to which the Purchaser has
actual knowledge that the requirements set forth in
paragraph 3, paragraph 6 or paragraph 10 hereof are not
satisfied or that the Purchaser has reason to believe does
not satisfy the requirements set forth in paragraph 7
hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax
liabilities in excess of any cash flows generated by the
interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within
the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form 4224
or successor form at the time and in the manner required by
the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the
transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax
purposes. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than a
citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under
the laws of the United States or any state thereof,
including for this purpose, the District of Columbia, or an
estate that is subject to U.S. federal income tax regardless
of the source of its income, or a trust if a court within
the United States is able to exercise primary supervision
over the administration of the trust and one or more United
States trustees have authority to control all substantial
decisions of the trust.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such
a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Master
Servicer as its agent to act as "tax matters person" of the
Trust Fund pursuant to the Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 19__.
---------------------------------
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 19__.
NOTARY PUBLIC
------------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 19__.
EXHIBIT D-2
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 1999-BC2
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENT
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 1999-BC2
Reference is hereby made to the Trust Agreement dated as of June 1,
1999 (the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, Norwest Bank Minnesota, National Association, as Master Servicer
and The First National Bank of Chicago, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Trust
Agreement.
This letter relates to $__________ initial Certificate Balance of
Class Certificates which are held in the form of Definitive Certificates
registered in the name of (the "Transferor"). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of such
Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: ___________, ____
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 1999-BC2 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within three years of the later of the date of original issuance of
the Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we
will do so only (A) to the Depositor, (B) to "qualified institutional
buyers" (within the meaning of Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (D) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of June 1,
1999 among the Depositor, Norwest Bank Minnesota, National
Association, as Master Servicer and The First National Bank of
Chicago, as Trustee (the "Trustee"), a signed letter in the form of
this letter; and we further agree, in the capacities stated above, to
provide to any person purchasing any of the Privately Offered
Certificates from us a notice advising such purchaser that resales of
the Privately Offered Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Trustee and the
Depositor a certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Privately Offered Certificates, and we and any account for which
we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By: ________________________________
Name:
Title:
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the
"Investor"), a [corporation duly organized] and existing under the laws
of __________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), the Trustee of
any such plan or a person acting on behalf of any such plan nor a person
using the assets of any such plan or (2) if the Investor is an insurance
company, such Investor is purchasing such Certificates with funds
contained in an "Insurance Company General Account" (as such term is
defined in Section v(e) of the Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the
Trustee and the Depositor an opinion of counsel (a "Benefit Plan
Opinion") satisfactory to the Trustee and the Depositor, and upon which
the Trustee and the Depositor shall be entitled to rely, to the effect
that the purchase or holding of such Certificate by the Investor will not
result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and
will not subject the Trustee, the Master Servicer or the Depositor to any
obligation in addition to those undertaken by such entities in the Trust
Agreement, which opinion of counsel shall not be an expense of the
Trustee, the Master Servicer or the Depositor.
3. The Investor hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, as Depositor, Norwest Bank Minnesota, National Association,
as Master Servicer, and The First National Bank of Chicago, as Trustee,
dated as of June 1, 1999, no transfer of the ERISA-Restricted
Certificates shall be permitted to be made to any person unless the
Depositor and Trustee have received a certificate from such transferee in
the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 199 .
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
-----------------------------
STATE OF )
) ss:
COUNTY OF )
Personally appeared before me the above-named
________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the ____________________
of the Investor, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of _________
199_.
------------------------------
NOTARY PUBLIC
My commission expires the _____
day of __________, 19__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENT
EXHIBIT L
Form of Letter Agreement between
Depositor and Trustee
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx Brothers, Inc.
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Fee Proposal for SASCO Mortgage
Pass-Through Certificates Series 1999-BC2
Dear Xx. Xxxxxxxxxx:
Thank you for the opportunity to submit our enclosed proposal to act as
trustee, registrar, and paying agent for your upcoming transaction.
First Chicago conditions its bid on satisfactory closing transaction
documents. Also our in-house counsel will render necessary enforceability
opinions limited to the laws of the State of Illinois and Federal law, an
outside firm may be necessary.
I have added a straightforward acknowledgement block to the schedule, which
you can execute if you wish to accept our proposal. This will serve to clearly
identify the specific proposed fees, which were considered by you during the
selection process.
First Chicago NBD again thank you for this opportunity, if you have any
further comments or questions, please call me.
Sincerely,
Xxxxxxx X. Xxxxxx
SCHEDULE OF FEES
FOR TRUSTEE, REGISTRAR, AND PAYING AGENT SERVICES
SASCO Mortgage Pass-Through Certificates Series 1999-BC2
I. ACCOUNT ACCEPTANCE $4,000
This fee covers review of governing documentation by in-house counsel
and liaison with underwriters, attorneys, and where applicable bond
insurers. This fee is payable following closing.
Legal Fees Included
II. ANNUAL ADMINISTRATION $4,000
This fee is for the ordinary administration of the account including
the fiduciary functions associated with the acting as trustee for a
mortgage-backed issue. This fee is payable annually in advance.
This fee does not include custody of the files. We assume the
Custodian of the files will remain the same.
III. OPERATING SERVICES
A. Wire Transfers: $10.00 each
B. Purchase/Sale of Securities $100.00 each*
o Use of our Short-Term Investment Fund will eliminate any
transaction fees for investments. An investment management fee may be
applicable.
IV. MISCELLANEOUS
All fees are subject to our review and acceptance of the governing
documentation, and to reasonable adjustment as changes in laws,
procedures and cost of doing business demand. The fees and our
ability to act hereunder are subject to modification or withdrawal
should subsequent review disclose unanticipated duties, conflicts of
interest, or credit standard deficiencies. Fees for services not
specifically covered in this schedule will be assessed in amounts
commensurate with the services rendered. If the transaction fails to
close for any reasons beyond First Chicago NBD's control, we reserve
the right to charge a fee not to exceed the amount of the acceptance
fee.
Out-of-pocket expenses are billed at cost for direct expenses such as
transportation and lodging for our lawyer or administrator to attend
the closing from Chicago, if necessary. The charge for any outside
legal opinion, if required, will be passed on directly as
out-of-pocket expenses at cost.
ACKNOWLEDGEMENT
Should the above fee schedule represent your understanding of the fee
arrangement with First Chicago NBD kindly execute the acknowledgement below
and return an original executed counterpart to First Chicago NBD.
June 10, 1999 Xxxxxx Brothers, Inc.
By____________________________________
Title:__________________________________
Date:__________________________________
SCHEDULE A
MORTGAGE LOAN SCHEDULE
