Exhibit 4.2
EXECUTION COPY
MBIA INSURANCE CORPORATION,
as Insurer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Master Servicer
XXXXXX CAPITAL,
as Seller
STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
INSURANCE AGREEMENT
$1,220,747,000
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 1999-BC1
Class A2 Certificates
Dated as of January 1, 1999
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. General Definitions...........................................1
Section 1.02. Generic Terms.................................................3
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of the
Seller and the Depositor...........................3
Section 2.02. Representations, Warranties and Covenants of Trustee..........7
Section 2.03. Representations, Warranties and Covenants of
Master Servicer........................................9
ARTICLE III
THE POLICY; REIMBURSEMENT; SECURITY
Section 3.01. Agreement To Issue the Policy................................11
Section 3.02. Conditions Precedent to Issuance of the Policy...............11
Section 3.03. Payment of Fees and Premium..................................11
Section 3.04. Payment Procedure............................................12
Section 3.05. Reimbursement and Additional Payment Obligation of
the Seller, the Master Servicer and the Depositor...........12
Section 3.06. Indemnification by the Seller, the Master Servicer
and the Depositor..........................................13
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of Agreement............................14
Section 4.02. Waiver of Rights.............................................14
Section 4.03. Obligations Absolute.........................................15
Section 4.04. Assignments; Reinsurance; Third-Party Rights.15
Section 4.05. Liability of Insurer.........................................16
Section 4.06. Subrogation..................................................16
Section 4.07. Liability of Master Servicer.................................16
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. Defaults.....................................................16
Section 5.02. Remedies; No Remedy Exclusive................................17
Section 5.03. Waivers......................................................17
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendments, Changes and Modifications........................18
Section 6.02. Notices......................................................18
Section 6.03. Severability.................................................19
Section 6.04. Governing Law................................................19
Section 6.05. Consent to Jurisdiction and Venue, Etc.......................19
Section 6.06. Consent of Insurer...........................................19
Section 6.07. Counterparts.................................................20
Section 6.08. Headings.....................................................20
Section 6.09. WAIVER OF TRIAL BY JURY......................................20
Section 6.10. Entire Agreement.............................................20
Section 6.11. Third Party Beneficiary......................................20
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT is made as of January 1, 1999 by and among
MBIA INSURANCE CORPORATION (the "Insurer"), NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Master Servicer (the "Master Servicer"), xxXXXX CAPITAL, as
Seller (the "Seller"), STRUCTURED ASSET SECURITIES CORPORATION, as Depositor
(the "Depositor"), and THE FIRST NATIONAL BANK OF CHICAGO, in its capacity as
Trustee under the Trust Agreement (the "Trustee").
RECITALS:
WHEREAS, the Trust Agreement dated as of January 1, 1999 by and
between the Master Servicer, the Depositor and the Trustee (the "Trust
Agreement") relating to the $1,220,747,000 Structured Asset Securities
Corporation Mortgage Pass-Through Certificates Series 1999-BC1 Class A2
Certificates (the "Insured Certificates") provides for, among other things,
the issuance of mortgage backed certificates, representing fractional
ownership interests in the trust estate (the "Trust") established thereby;
WHEREAS, the Depositor has requested that the Insurer issue, with
respect to each class of Insured Certificates, its certificate guaranty
insurance policy (the "Policy") to guarantee payment of Insured Payments (as
defined in the Policy) to the Trustee for the benefit of the Owners of the
Insured Certificates upon such terms and conditions as were mutually agreed
upon by the parties and subject to the terms and the conditions of the Policy;
WHEREAS, the parties hereto desire to specify the conditions
precedent to the issuance of the Policy by the Insurer and to provide for
certain other matters;
NOW, THEREFORE, in consideration of the premises and of the
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. General Definitions. The terms defined in this Article
I shall have the meanings provided herein for all purposes of this Agreement,
unless the context clearly requires otherwise, in both singular and plural
form, as appropriate. Capitalized terms used in this Agreement but not
otherwise defined herein will have the meanings assigned to such terms in the
Trust Agreement.
"Agreement" means this Insurance Agreement dated as of January 1,
1999, including any amendments or any supplements hereto as herein permitted.
"Commitment" means the Commitment, dated January 27, 1999 between the
Underwriter and the Insurer, relating to the Insured Certificates.
"Date of Issuance" means the date on which the Policy is issued as
specified therein.
"Event of Default" means any event of default set forth in Section
5.01 hereof.
"Financial Statements" means, with respect to the Seller and the
Depositor the balance sheets and the statements of income and retained
earnings and the notes thereto.
"Late Payment Rate" means the rate of interest publicly announced by
Citibank, N.A. at its principal office in New York, New York as its prime rate
(any change in such prime rate of interest to be effective on the date such
change is announced by Citibank, N.A.) plus 3%. The Late Payment Rate shall be
computed on the basis of a year of 365 days calculating the actual number of
days elapsed. In no event shall the Late Payment Rate exceed the maximum rate
permissible under law applicable to this Agreement limiting interest rates.
"Material Adverse Change" means, in respect of any Person, a material
adverse change in the ability of such Person to perform its obligations under
any of the Transaction Documents.
"MBIA Premium Rate" means the Premium Percentage specified in
paragraph 1 of the Commitment.
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, and any successor thereto, and, if such corporation shall for any
reason no longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally recognized rating
agency designated by the Insurer.
"Offering Document" means the Prospectus dated January 15, 1999 and
the Prospectus Supplement thereto dated January 26, 1999, of the Depositor in
respect of the Insured Certificates (and any amendment or supplement thereto)
and any other offering document in respect of the Insured Certificates
prepared by the Depositor that makes reference to the Policy.
"Owner" means each Holder (as defined in the Trust Agreement) of an
Insured Certificate who, on the applicable Distribution Date, is entitled
under the terms of the Insured Certificates to payment thereunder.
"Person" means an individual, joint stock company, trust,
unincorporated association, joint venture, corporation, business or owner
trust, limited liability company, partnership or other organization or entity
(whether governmental or private).
"Premium " means the premium payable in accordance with Section 3.03
hereof.
"Registration Statement" means the Registration Statement on Form S-3
of the Depositor relating to the Certificates.
"Securities Act" means the Securities Act of 1933, including, unless
the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto, and, if such
corporation shall for any reason no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any other
nationally recognized rating agency designated by the Insurer.
"Term of the Agreement" shall be determined as provided in Section
4.01 hereof.
"Transaction" means the transactions contemplated by the Transaction
Documents, including the transaction described in the Prospectus Supplement.
"Transaction Documents" means this Agreement, the Trust Agreement,
the Custodial Agreements, the Indemnification Agreements, the Servicing
Agreements, the Purchase Agreement, the Offering Document, the Certificates,
the Underwriting Agreement and the Mortgage Loan Sale and Assignment
Agreement.
"Trust Agreement" means the Trust Agreement as of January 1, 1999
between the Master Servicer, the Depositor and the Trustee, including any
amendments and supplements thereto as therein and herein permitted.
"Underwriters" means Xxxxxx Brothers Inc.
Section 1.02. Generic Terms. All words used herein shall be construed
to be of such gender or number as the circumstances require. This "Agreement"
shall mean this Agreement as a whole and as the same may, from time to time
hereafter, be amended, supplemented or modified. The words "herein," "hereby,"
"hereof," "hereto," "hereinabove" and "hereinbelow," and words of similar
import, refer to this Agreement as a whole and not to any particular
paragraph, clause or other subdivision hereof, unless otherwise specifically
noted.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of the Seller
and the Depositor. Each of the Seller and the Depositor, represents and
warrants to and covenants with, as of the Date of Issuance, each as to those
matters relating to itself, the Insurer as follows:
(a) Due Organization and Qualification. Each of the Seller and
the Depositor are a federal savings bank, a national banking association, or a
corporation, duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation. Each of the Seller and
the Depositor is duly qualified to do business, is in good standing and has
obtained all licenses, permits, charters, registrations and approvals
(together, "approvals") necessary for the conduct of its business as currently
conducted and as described in the Offering Document and the performance of its
obligations under the Transaction Documents, in each jurisdiction in which the
failure to be so qualified or to obtain such approvals would render any
Transaction Document unenforceable in any respect or would have a material
adverse effect upon the Transaction, the Owners or the Insurer.
(b) Power and Authority. Each of the Seller and the Depositor
have all necessary corporate power and authority to conduct its business as
currently conducted and, as described in the Offering Document, to execute,
deliver and perform its obligations under the Transaction Documents and to
consummate the Transaction.
(c) Due Authorization. The execution, delivery and performance
of the Transaction Documents by the Seller and the Depositor have been duly
authorized by all necessary corporate action and do not require any additional
approvals or consents or other action by or any notice to or filing with any
Person, including, without limitation, any governmental entity or the Seller's
or the Depositor's stockholders, which have not previously been obtained or
given by the Seller or the Depositor.
(d) Noncontravention. Neither the execution and delivery of the
Transaction Documents by the Seller or the Depositor, the consummation of the
transactions contemplated thereby nor the satisfaction of the terms and
conditions of the Transaction Documents:
(e) conflicts with or results in any breach or violation of any
provision of the certificate of incorporation or bylaws of the Seller or the
Depositor or any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award currently in effect having applicability to the
Seller or the Depositor or any of its material properties, including
regulations issued by an administrative agency or other governmental authority
having supervisory powers over the Seller and the Depositor;
(i) constitutes a default by the Seller or the Depositor under
or a breach of any provision of any material loan agreement,
mortgage, indenture or other agreement or instrument to which the
Seller or the Depositor is a party or by which any of its or their
respective properties, which are individually or in the aggregate
material to the Seller or the Depositor, is or may be bound or
affected; or
(ii) results in or requires the creation of any lien upon or in
respect of any assets of the Seller or the Depositor, except as
contemplated by the Transaction Documents.
(f) Legal Proceedings. There is no action, proceeding or
investigation by or before any court, governmental or administrative agency or
arbitrator against or affecting the Seller or the Depositor or any of its or
their subsidiaries, or any properties or rights of the Seller or the Depositor
or any of its or their subsidiaries, pending or, to the Seller's and the
Depositor's knowledge, threatened, which, in any case, could reasonably be
expected to result in a Material Adverse Change with respect to the Seller or
the Depositor.
(g) Valid and Binding Obligation. The Transaction Documents to which
the Seller or the Depositor is a party constitute, and when executed by the
Seller or the Depositor (if not previously) will constitute, the legal, valid
and binding obligations of the Seller or the Depositor, as applicable,
enforceable against the Seller and the Depositor in accordance with their
respective terms, except as the enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
limiting creditors' rights generally or general equitable principles, as such
relate to the Seller or the Depositor.
(h) Financial Statements. The Financial Statements supplied, or
publicly available, to the Insurer prior to the Date of Issuance (i) present
fairly the financial condition and results of operations of the Seller and the
Depositor as of the dates and for the periods indicated and (ii) have been
prepared in accordance with generally accepted accounting principles
consistently applied, except as noted therein and subject to year-end
adjustments with respect to interim statements. Since the date of such
Financial Statements, there has been no Material Adverse Change in such
condition or operations of the Seller or the Depositor.
(i) Compliance With Law, Regulations, Etc. Except as disclosed in
writing to the Insurer or in the Offering Document, neither of the Seller nor
the Depositor has notice or any reason to believe that any practice, procedure
or policy employed by the Seller or the Depositor in the conduct of its
business violates, any law, regulation, judgment or agreement applicable to
the Seller or the Depositor which, if enforced, would have a material adverse
effect on the ability of the Seller or the Depositor to perform its
obligations under the Transaction Documents. Except as disclosed in writing to
the Insurer or in the Offering Document, neither the Seller nor the Depositor
is in breach of or in default under any applicable law or administrative
regulation of any department, division, agency or instrumentality which has
jurisdiction over it or any applicable judgment or decree or any loan
agreement, note, resolution, certificate, agreement or other instrument to
which the Seller or the Depositor is a party or is otherwise subject which
would have a material adverse affect on its or their ability to perform under
the Transaction Documents.
(j) Delivery of Information. None of the Transaction Documents nor
any other documents, reports, notices, operating agreements, schedules,
certificates, statements or other writings (collectively, the "Documents"),
furnished to the Insurer by the Seller or the Depositor on or before the Date
of Issuance contain any statement of a material fact by the Seller or the
Depositor which was untrue or misleading in any material respect when made.
Since the furnishing of the Documents but prior to the offering of the Insured
Certificates, there has been no change nor any development or event involving
a prospective change which would render any of the Transaction Documents
untrue or misleading in a material respect.
(k) Continuing Information. The Seller or the Depositor shall deliver
to the Insurer concurrently with the delivery thereof to the Trustee the
statements, notices, reports or other information required by the Trust
Agreement to be delivered to the Insurer or the Certificateholders. Upon the
request of the Insurer, the Depositor shall furnish, with reasonable
promptness, any Financial Statements or data regarding the Trust.
(l) Access to Records; Discussions With Officers and Accountants. The
Depositor shall, upon the request of the Insurer, permit the Insurer, or its
authorized agent, at reasonable times and upon reasonable notice, to inspect
the Depositor's books and records as they may relate to the Certificates, the
Mortgage Loans and the Depositor's obligations under the Transaction Documents
and to discuss the Depositor's affairs, finances and accounts with an
appropriate authorized officer of the Depositor.
(m) Notice of Material Events. The Seller and the Depositor shall be
obligated (which obligation shall be satisfied as to each if performed by the
Seller or the Depositor) promptly to inform the Insurer in writing of the
occurrence of any of the following to the extent any of the following relate
to it:
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation or rule making or disciplinary proceeding in any
federal, state or local court or before any arbitration board, or
any such proceeding threatened by any government agency, which, if
adversely determined, would have a material adverse effect on the
Depositor, the Owners or the Insurer or would result in a Material
Adverse Change with respect to the Seller or the Depositor;
(ii) the occurrence of any Default or Event of Default or of any
Material Adverse Change;
(iii) the commencement of any proceedings by or against the
Seller or the Depositor under any applicable bankruptcy,
reorganization, liquidation, rehabilitation, insolvency or other
similar law now or hereafter in effect or of any proceeding in which
a receiver, liquidator, conservator, trustee or similar official
shall have been, or may be, appointed or requested for the Seller or
the Depositor or any of its or their assets; or
(iv) the receipt of notice that (A) the Seller or the Depositor
is being placed under regulatory supervision, (B) any license,
permit, charter, registration or approval necessary for the conduct
of the Seller, or the Depositor business is to be or may be
suspended or revoked, or (C) the Seller or the Depositor is to cease
and desist any practice, procedure or policy employed by the
Servicer, the Seller or the Depositor in the conduct of its business
and such cessation may result in a Material Adverse Change with
respect to the Seller or the Depositor.
(n) Impairment of Rights. The Seller and the Depositor shall not take
any action, if such action will have a material adverse effect on the
Insurer's ability to enforce its rights under the Trust Agreement or this
Agreement; provided, however, that this Section 2.01 (m) shall not prohibit
the Seller or the Depositor from taking any action it is required to take
pursuant to the Transaction Documents, any applicable law or order of any
court or regulatory authority with jurisdiction over the Seller, the
Depositor, the Transaction Documents or the Certificates.
(o) Securities Law Compliance. The Seller and the Depositor each
represent and warrant that neither the offer nor the sale of the Certificates
to the Underwriters has been or will be in violation of the Securities Act or
any federal or state securities laws. The Seller and the Depositor each
further represents and warrants that it is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as amended.
(p) Transcripts. The Seller and the Depositor shall, within 90 days
following the closing of the Transaction, provide each of the Insurer and its
counsel a final transcript containing the documents and opinions executed in
connection with the Transaction.
(q) Transaction Documents. Each of the representations and warranties
of the Seller and the Depositor contained in the Transaction Documents is true
and correct in all material respects and the Seller and the Depositor hereby
make each such representation and warranty to and for the benefit of, the
Insurer as if the same were set forth in full herein.
(r) Solvency; Fraudulent Conveyance. The Seller and the Depositor are
solvent and will not be rendered insolvent by the Transaction and, after
giving effect to the Transaction, neither the Seller nor the Depositor will be
left with an unreasonably small amount of capital with which to engage in its
business, nor does the Seller or the Depositor intend to incur, or believe
that it has incurred, debts beyond its ability to pay as they mature. Neither
the Seller nor the Depositor contemplates the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the appointment of a
receiver, liquidator, conservator, trustee or similar official in respect of
the Seller or the Depositor or any of its or their assets. The amount of
consideration being received by the Seller and the Depositor upon the sale of
the Certificates to the Underwriters constitutes reasonably equivalent value
and fair consideration for the interest in the Mortgage Loans evidenced by the
Certificates. The Seller is not transferring the Mortgage Loans to the
Depositor, the Depositor is not transferring the Mortgage Loans to the Trust
and the Depositor is not selling the Certificates to the Underwriters, as
provided in the Transaction Documents, with any intent to hinder, delay or
defraud any of the Seller's or the Depositor's creditors.
(s) Compliance With Agreements and Applicable Laws. The Seller and
the Depositor shall comply in all material respects with the terms and
conditions of the Transaction Documents to which it is a party and shall
comply with all material requirements of any law, rule or regulation
applicable to it.
(t) Maintenance of Existence. The Seller and the Depositor, or their
successors and assigns, shall maintain their corporate existence and shall at
all times continue to be duly organized under the laws of their respective
jurisdictions of organization and duly qualified and duly authorized (as
described in section 2.01(a), (b) and (c) hereof) and shall conduct its
business in accordance with the terms of its charter, certificate or articles
of incorporation and bylaws.
Section 2.02. Representations, Warranties and Covenants of Trustee.
The Trustee represents and warrants to, aTs of the Date of Issuance and
covenants with the other parties hereto as follows:
(a) Due Organization and Qualification. The Trustee is a national
banking association, duly organized, validly existing and in good standing
under the laws of the United States. The Trustee is duly qualified to do
business, is in good standing and has obtained all licenses, permits,
charters, registrations and approvals (together, "approvals") necessary for
the conduct of its business as currently conducted and as described in the
Offering Document and the performance of its obligations under the Transaction
Documents, in each jurisdiction in which the failure to be so qualified or to
obtain such approvals would render any Transaction Document unenforceable in
any respect or would have a material adverse effect upon the Transaction, the
Owners or the Insurer.
(b) Due Authorization. The execution, delivery and performance of the
Transaction Documents by the Trustee have been duly authorized by all
necessary association action and do not require any additional approvals or
consents, or other action by or any notice to or filing with any Person,
including, without limitation, any governmental entity or the Trustee's
stockholders, which have not previously been obtained or given by the Trustee.
(c) Noncontravention. Neither the execution and delivery of the
Transaction Documents by the Trustee, the consummation of the transactions
contemplated thereby nor the satisfaction of the terms and conditions of the
Transaction Documents:
(i) conflicts with or results in any breach or violation
of any provision of the certificate or articles of incorporation or
bylaws of the Trustee or any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award currently in
effect having applicability to the Trustee or any of its material
properties, including regulations issued by an administrative agency
or other governmental authority having supervisory powers over the
Trustee;
(ii) constitutes a default by the Trustee under or a
breach of any provision of any loan agreement, mortgage, indenture or
other agreement or instrument to which the Trustee is a party or by
which any of its or their respective properties, which are
individually or in the aggregate material to the Trustee, is or may
be bound or affected; or
(iii) results in or requires the creation of any lien
upon or in respect of any assets of the Trustee, except as
contemplated by the Transaction Documents.
(d) Legal Proceedings. There is no action, proceeding or
investigation by or before any court, governmental or administrative agency or
arbitrator against or affecting the Trustee, or any of its subsidiaries, or
any properties or rights of the Trustee, or any of its subsidiaries, pending
or, to the Trustee's knowledge after reasonable inquiry, threatened, which, in
any case, could reasonably be expected to result in a Material Adverse Change
with respect to the Trustee.
(e) Valid and Binding Obligations. The Insured Certificates, when
executed, authenticated and issued in accordance with the Trust Agreement and
the Transaction Documents (other than the Insured Certificates) to which it is
a party, when executed and delivered by the Trustee, will constitute the
legal, valid and binding obligations of the Trustee, as applicable,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles. The Trustee will not at any time in the future
deny that the Transaction Documents constitute the legal, valid and binding
obligations of the Trustee.
(f) Compliance With Law, Etc. No practice, procedure or policy
employed, or proposed to be employed, by the Trustee in the conduct of its
business violates any law, regulation, judgment, agreement, order or decree
applicable to any of them that, if enforced, could reasonably be expected to
result in a Material Adverse Change with respect to the Trustee. The Trustee
is not in breach of or in default under any applicable law or administrative
regulation of its respective jurisdiction of incorporation, or any department,
division, agency or instrumentality thereof or of the United States or any
applicable judgment or decree or any loan agreement, note, resolution,
certificate, agreement or other instrument to which the Trustee is a party or
is otherwise subject which, if enforced, would have a material adverse effect
on the ability of the Trustee to perform its obligations under the Transaction
Documents.
(g) Transaction Documents. Each of the representations and warranties
of the Trustee contained in the Transaction Documents is true and correct in
all material respects and the Trustee hereby makes each such representation
and warranty to and for the benefit of, the Insurer as if the same were set
forth in full herein.
(h) Compliance. The Trustee shall comply in all material respects
with the terms and conditions of the Transaction Documents to which it is a
party.
Section 2.03. Representations, Warranties and Covenants of Master
Servicer. The Master Servicer represents and warrants to, as of the Date of
Issuance, and covenant with the other parties hereto as follows:
(a) Due Organization and Qualification. The Master Servicer is a
national banking association, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The Master
Servicer is duly qualified to do business, is in good standing and has
obtained all licenses, permits, charters, registrations and approvals
(collectively referred to in this Section 2.03 as "approvals") necessary for
the conduct of its business as currently conducted and the performance of its
obligations under the Transaction Documents.
(b) Due Authorization. The execution, delivery and performance of the
Transaction Documents by the Master Servicer have been duly authorized by all
necessary corporate action and does not require any additional approvals or
consents, or other action by or any notice to or filing with any Person,
including, without limitation, any governmental entity, which have not
previously been obtained or given by the Master Servicer.
(c) Noncontravention. Neither the execution and delivery of the
Transaction Documents by the Master Servicer, the consummation of the
transactions contemplated thereby nor the satisfaction of the terms and
conditions of the Transaction Documents:
(i) conflicts with or results in any breach or violation
of any provision of the certificate or articles of association or
bylaws of the Master Servicer or any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award currently
in effect having applicability to the Master Servicer or any of its
material properties, including regulations issued by an
administrative agency or other governmental authority having
supervisory powers over the Master Servicer;
(ii) constitutes a default by the Master Servicer under
or a breach of any provision of any loan agreement, mortgage,
indenture or other agreement or instrument to which the Master
Servicer is a party or by which any of its respective properties,
which are individually or in the aggregate material to the Master
Servicer, is or may be bound or affected; or
(iii) results in or requires the creation of any lien
upon or in respect of any material assets of the Master Servicer,
except as contemplated by the Transaction Documents.
(d) Legal Proceedings. There is no action, proceeding or
investigation by or before any court, governmental or administrative agency or
arbitrator against or affecting the Master Servicer or any of its respective
subsidiaries, or any properties or rights of the Master Servicer or any of its
respective subsidiaries, pending or, to the Master Servicer's knowledge after
reasonable inquiry, threatened, which, in any case, could reasonably be
expected to result in a Material Adverse Change with respect to the Master
Servicer.
(e) Valid and Binding Obligations. The Transaction Documents to which
it is a party, when executed and delivered by the Master Servicer, will
constitute the legal, valid and binding obligations of the Master Servicer,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles.
(f) Compliance With Law, Etc. No practice, procedure or policy
employed, or proposed to be employed, by the Master Servicer in the conduct of
its business violates any law, regulation, judgment, agreement, order or
decree applicable to the Master Servicer that, if enforced, could reasonably
be expected to result in a Material Adverse Change with respect to the Master
Servicer. The Master Servicer is not in breach of or in default under any
applicable law or administrative regulation of its respective jurisdiction of
incorporation, or any department, division, agency or instrumentality thereof
or of the United States or any applicable judgment or decree or any loan
agreement, note, resolution, certificate, agreement or other instrument to
which the Master Servicer is a party or is otherwise subject which, if
enforced, would have a material adverse effect on the ability of the Master
Servicer to perform its obligations under the Transaction Documents.
(g) Transaction Documents. Each of the representations and warranties
of the Master Servicer contained in the Transaction Documents is true and
correct in all material respects, and the Master Servicer hereby makes each
such representation and warranty to, and for the benefit of, the Insurer as if
the same were set forth in full herein.
(h) Compliance and Amendments. The Master Servicer shall comply in
all material respects with the terms and conditions of the Transaction
Documents to which it is a party and the Master Servicer shall not agree to
any amendment to or modification of the terms of any of the Transaction
Documents to which it is a party unless the Insurer shall otherwise give its
prior written consent.
ARTICLE III
THE POLICY; REIMBURSEMENT; SECURITY
Section 3.01. Agreement To Issue the Policy. The Insurer agrees,
subject to the conditions set forth in Section 3.02 hereof, to issue the
Policy on the Date of Issuance.
Section 3.02. Conditions Precedent to Issuance of the Policy. The
Seller, the Depositor and the Underwriter shall have complied with the terms
and satisfied the conditions precedent set forth below:
(a) the Underwriter shall have paid or caused to be paid that portion
of a non-refundable Premium payable on the Date of Issuance in accordance with
Section 3.03 hereof;
(b) the Seller and the Depositor shall have complied with all
requirements of the Commitment;
(c) the Insurer shall have received true and correct copies of any
governmental approvals necessary for the transactions contemplated by this
Agreement and the Trust Agreement or a certificate to the effect that no such
approvals are necessary;
(d) the Insurer shall have received a certificate of an authorized
officer of the Seller, the Master Servicer and the Depositor certifying the
name and true signatures of the officers of the Seller, the Master Servicer
and the Depositor executing the Transaction Documents; and
(e) the Insurer shall have received confirmation that the risk
secured by the Policy constitutes a "AAA" risk by S&P and at least "Aaa" by
Xxxxx'x and that the Insured Certificates, when issued, will be rated "AAA" by
S&P without regard to the Policy.
Issuance of the Policy will be conclusive evidence of satisfaction or waiver
of any of the conditions set forth in this Section 3.02.
Section 3.03. Payment of Fees and Premium.
(a) In consideration of the issuance by the Insurer of the Policy,
the Insurer shall be entitled to receive a premium (the "Premium") in
accordance with the terms of the Commitment on the Date of Issuance. The MBIA
Premium Rate shall be calculated according to paragraph 1 of the Commitment.
The Premium paid hereunder shall be nonrefundable without regard to whether
the Insurer makes any payment under the Policy or any other circumstances
relating to the Insured Certificates or provision being made for payment of
the Insured Certificates prior to maturity. The Trustee shall make all
payments of Premium in accordance with the Master Servicer's instruction
pursuant to Section 4.03 of the Trust Agreement by wire transfer to an account
designated by the Insurer by written notice to the Trustee.
(b) The Underwriter shall pay the fees of the Insurer's counsel in
connection with the Transaction, Xxxxx'x fees for the shadow rating, S&P's
fees and the cost of obtaining the Insurer's accountant's consent letter.
Section 3.04. Payment Procedure. All payments to be made to the
Insurer under this Agreement shall be made to the Insurer in lawful currency
of the United States of America in immediately available funds at the notice
address for the Insurer as specified in the Trust Agreement on the date when
due. Payments to be made to the Insurer under this Agreement shall bear
interest at the Late Payment Rate from the date when due to the date paid,
provided that reimbursement to the Insurer of Insured Payments shall be made
from the assets of the Trust in accordance with the terms of the Trust
Agreement at the Late Payment Rate. If the Trustee is required to pay any
amounts to the Insurer from moneys available therefor under the Trust
Agreement and the Trustee fails timely to pay any such amount at a time when
such moneys are available, the Trustee shall, from the Trustee's own funds,
reimburse the Seller, the Master Servicer or the Depositor, as applicable, for
any resulting penalty interest if the Trustee's failure was due to negligence,
bad faith or willful misconduct.
Section 3.05. Reimbursement and Additional Payment Obligation of the
Seller, the Master Servicer and the Depositor.
(a) In accordance with the priorities established in Section 5.02 of
the Trust Agreement, the Insurer shall be entitled to reimbursement for any
payment made by the Insurer under the Policy, which reimbursement shall be due
and payable on the date that any amount is to be paid pursuant to a Notice (as
defined in the Policy), in an amount equal to the amount to be so paid and all
amounts previously paid that remain unreimbursed, together with interest on
any and all amounts remaining unreimbursed (to the extent permitted by law, if
in respect of any unreimbursed amounts representing interest) from the date
such amounts became due until paid in full (after as well as before judgment),
at a rate of interest equal to the Late Payment Rate.
(b) Notwithstanding anything in Section 3.03(a) to the contrary, the
Seller, the Master Servicer and the Depositor agree to reimburse the Insurer
as follows: (i) from the Seller, for payments made under the Policy arising as
a result of the Transferor's or the Seller's failure to repurchase any
Mortgage Loan required to be repurchased pursuant to the Purchase Agreement or
the Mortgage Loan Sale and Assignment Agreement , together with interest on
any and all amounts remaining unreimbursed (to the extent permitted by law, if
in respect of any unreimbursed amounts representing interest) from the date
such amounts became due until paid in full (after as well as before judgment),
at a rate of interest equal to the Late Payment Rate and (ii) from the Master
Servicer, for payments made under the Policy, arising as a result of the
Master Servicer's failure to deposit into the Collection Account any amount
required to be so deposited pursuant to the Trust Agreement, together with
interest on any and all amounts remaining unreimbursed (to the extent
permitted by law, if in respect to any unreimbursed amounts representing
interest) from the date such amounts became due until paid in full (after as
well as before judgment), at a rate of interest equal to the Late Payment
Rate.
(c) The Seller and the Depositor each agree to reimburse the Insurer,
immediately upon receipt of two Business Days' prior written notice, for any
and all charges, fees, costs and expenses that the Insurer may reasonably pay
or incur including, but not limited to, reasonable attorneys' and accountants'
fees and reasonable expenses, in connection with (a) the enforcement, defense
or preservation of any rights in respect of any of the Transaction Documents,
including defending or participating in any litigation or proceeding
(including any insolvency or bankruptcy proceeding in respect of any
Transaction participant or any affiliate thereof) relating to any of the
Transaction Documents, any party to any of the Transaction Documents, in its
capacity as such a party, or the Transaction, provided that the foregoing
arises out of the Seller's or the Depositor's breach or alleged breach of its
or their obligations under the applicable Transaction Document or (b) any
amendment of any Transaction Document, whether or not executed or completed.
(d) The Seller, the Master Servicer and the Depositor agree to pay to
the Insurer as follows: any payments made by the Insurer on behalf of, or
advanced to the Seller, the Master Servicer or the Depositor, respectively,
including, without limitation, any amounts payable by the Seller, the Master
Servicer or the Depositor pursuant to the Certificates or any other
Transaction Documents.
All such amounts are to be immediately due and payable without demand.
Section 3.06. Indemnification by the Seller, the Master Servicer and
the Depositor.
(a) In addition to any and all rights of indemnification or any other
rights of the Insurer pursuant hereto or under law or equity, the Seller and
the Depositor and any successors thereto agree to pay and to protect,
indemnify and save harmless, the Insurer and its officers, directors,
shareholders, employees, agents and each person, if any, who controls the
Insurer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act from and against any and all claims,
losses, liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or reasonable expenses (including, without limitation,
reasonable fees and expenses of attorneys, consultants and auditors and
reasonable costs of investigations) or obligations whatsoever paid by the
Insurer (herein collectively referred to as "Liabilities") of any nature
arising out of or relating to the transactions contemplated by the Transaction
Documents by reason of:
(i) any act or omission of the Seller or the Depositor,
or the allegation thereof, in connection with the offering, issuance,
sale or delivery of the Certificates other than by reason of false or
misleading information provided by the Insurer in writing for
inclusion in the Offering Document, which is contained in the caption
"The Certificate Policy and the Certificate Insurer" of the Offering
Document;
(ii) the misfeasance or malfeasance of, or negligence or
theft committed by, any director, officer, employee or agent of the
Seller or the Depositor;
(iii) the violation by the Seller or the Depositor of any
federal or state securities, banking or antitrust laws, rules or
regulations in connection with the issuance, offer and sale of the
Certificates or the transactions contemplated by the Transaction
Documents;
(iv) the violation by the Seller or the Depositor of any
federal or state laws, rules or regulations relating to the
Transaction, including without limitation the maximum amount of
interest permitted to be received on account of any loan of money or
with respect to the Mortgage Loans;
(v) the breach by the Seller or the Depositor of any of
its obligations under this Insurance Agreement or any of the other
Transaction Documents; and
(vi) the breach by the Seller or the Depositor of any
representation or warranty on the part of the Seller or the Depositor
contained in the Transaction Documents or in any certificate or
report furnished or delivered to the Insurer thereunder.
This indemnity provision and the provisions in Section 3.05 shall
survive the termination of this Insurance Agreement and shall survive until
the statute of limitations has run on any causes of action which arise from
one of these reasons and until all suits filed as a result thereof have been
finally concluded.
(b) Each of the Seller, the Master Servicer and the Depositor agree
to pay to the Insurer interest on any and all amounts required to be paid by
the Seller, the Master Servicer or the Depositor, respectively, including but
not limited to those amounts described in Section 3.05 and this Section 3.06,
from the date payable until payment thereof is made in full. Such interest
shall be payable at the Late Payment Rate per annum.
(c) In addition to any and all rights of indemnification or any other
rights of the Insurer pursuant hereto or under law or equity, the Master
Servicer agrees to pay, and to protect, indemnify and save harmless, the
Insurer and its officers, directors, shareholders, employees, agents,
including each person, if any, who controls the Insurer within the meaning of
either Section 15 of the Securities Act of 1933, as amended, or Section 20 of
the Securities and Exchange Act of 1934, as amended, from and against any and
all claims, losses, liabilities (including penalties), actions, suits,
judgments, demands, damages, costs or reasonable expenses and reasonable costs
of investigations or obligations whatsoever of any nature arising out of the
breach by the Master Servicer of any of its obligations under this Insurance
Agreement or the Trust Agreement. This indemnity provision shall survive the
termination of this Insurance Agreement and shall survive until the statute of
limitations has run on any causes of action which arise from one of these
reasons and until all suits filed as a result thereof have been fully
concluded.
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of Agreement. This Agreement shall
take effect on the date on which the Policy is issued and shall remain in
effect until such time as the Insurer is no longer subject to a claim under
the Policy and all amounts payable by the Seller, the Master Servicer or the
Depositor hereunder or under the Trust Agreement and under the Certificates
have been paid in full; provided, however, that the provisions of Sections
3.05 and 3.06 shall survive any termination of this Agreement.
Section 4.02. Waiver of Rights. Excepting at such times as a
Certificate Insurer Default shall exist, neither the Seller, the Master
Servicer, the Depositor nor the Trustee shall grant any waiver of rights under
any of the Transaction Documents to which any of them is a party which would
adversely affect in any material respect the interests of the Insurer, without
the prior written consent of the Insurer (unless such waiver is expressly
permitted by the applicable Transaction Document) and any amendment or
supplement to the Transaction Documents which would adversely affect in any
material respect the interests of the Insurer without the written consent of
the Insurer shall be null and void and of no force or effect (unless such
amendment is expressly permitted by the applicable Transaction Document).
Section 4.03. Obligations Absolute. The obligations of the Seller,
the Master Servicer, the Depositor and the Trustee hereunder shall be absolute
and unconditional and shall not be subject to and the Seller, the Master
Servicer, the Depositor and the Trustee hereby waive (a) presentment and
demand for payment, (b) notices in connection with delivery and acceptance
hereof or notices in connection with performance, default or enforcement of
payment hereunder and (c) its rights of, abatement, diminution, postponement
or deduction, or to any defense other than payment, or to any right of setoff
or recoupment arising out of any breach under any of the Transaction
Documents, by any party thereto or any beneficiary thereof, or out of any
obligation at any time owing to the Seller, the Master Servicer, the Depositor
or the Trustee. Nothing herein shall be construed as prohibiting the Seller,
the Master Servicer, the Depositor or the Trustee from pursuing any rights or
remedies it may have against any other person or entity in a separate legal
proceeding. The obligations of the Seller, the Master Servicer, the Depositor
and the Trustee hereunder are absolute and unconditional and will be paid or
performed strictly in accordance with this Agreement.
Section 4.04. Assignments; Reinsurance; Third-Party Rights.
(a) This Agreement shall be a continuing obligation of the Seller,
the Master Servicer and the Depositor and shall (i) be binding upon the
Seller, the Master Servicer and the Depositor, its or their successors and
assigns and (ii) inure to the benefit of and be enforceable by the Insurer and
its successors, transferees and assigns. Neither the Seller, the Master
Servicer nor the Depositor may assign this Agreement, or delegate any of its
rights or obligations hereunder, without the prior written consent of the
Insurer.
(b) The Insurer shall have the right to give participations in its
rights under this Agreement and to enter into contracts of reinsurance with
respect to the Policy and each such participant or reinsurer shall be entitled
to the benefit of any representation, warranty, covenant and obligation of the
Seller, the Master Servicer or the Depositor hereunder as if such participant
or reinsurer was a party hereto; provided that no such grant of participation
shall operate to relieve the Insurer of any of its obligations hereunder or
under the Policy.
(c) In addition, the Insurer shall be entitled to assign or pledge to
any bank or other lender providing liquidity or credit with respect to the
Transaction or the obligations of the Insurer in connection therewith any
rights of the Insurer under the Transaction Documents or with respect to any
real or personal property or other interests pledged to the Insurer, or in
which the Insurer has a security interest, in connection with the Transaction.
(d) Except as provided herein with respect to participants and
reinsurers, nothing in this Agreement shall confer any right, remedy or claim,
express or implied, upon any person, including, particularly, any Holder of a
Certificate, other than the Insurer, against the Seller, the Master Servicer
and the Depositor and all the terms, covenants, conditions, promises and
agreements contained herein shall be for the sole and exclusive benefit of the
parties hereto and their successors. Neither the Trustee nor any Holder of a
Certificate shall have any right to payment from the premium paid pursuant to
Section 3.03 hereof.
Section 4.05. Liability of Insurer. The Insurer shall not be
responsible for any act or omission of the Trustee with respect to its use of
the Policy. Neither the Insurer nor any of its officers, directors or
employees shall be liable or responsible for: (a) the use which may be made of
the Policy by or for any acts or omissions of the Trustee in connection
therewith; or (b) the validity, sufficiency, accuracy or genuineness of
documents, or of any endorsement(s) thereon, submitted by any person in
connection with a claim under the Policy, even if such documents should in
fact prove to be in any or all respects invalid, insufficient, fraudulent or
forged, unless the Insurer has actual knowledge thereof. In furtherance and
not in limitation of the foregoing, the Insurer may accept documents that
appear on their face to be in order, without responsibility for further
investigation.
Section 4.06. Subrogation. To the extent of any payments under a
Policy, the Insurer shall be fully subrogated to any remedies against the
Seller, the Master Servicer or the Depositor or in respect of the Mortgage
Loans available to the Trustee under the Trust Agreement. The Trustee
acknowledges such subrogation and, further, agrees to execute such instruments
prepared by the Insurer and to take such reasonable actions as, in the sole
judgment of the Insurer, are necessary to evidence such subrogation and to
perfect the rights of the Insurer to receive any moneys paid or payable under
the Trust Agreement.
Section 4.07. Liability of Master Servicer. Notwithstanding anything
herein to the contrary, the Master Servicer shall not be liable for any acts
or omissions of any Servicer, unless it is acting as a successor Servicer,
provided, that, nothing herein shall modify, diminish or otherwise affect the
obligations of the Master Servicer under the Transaction Documents, to which
it is a party. In particular, the Master Servicer shall not be liable for any
servicing errors or interruptions resulting from any failure of the Servicer
(unless it is acting as a successor Servicer) to maintain computer and other
information systems that are Year-2000 compliant.
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. Defaults. The occurrence of either of the following
events shall constitute an Event of Default hereunder:
(a) any representation or warranty made by the Seller, the Master
Servicer or the Depositor under this Agreement shall prove to be untrue or
incomplete in any material respect; provided, however, that if the Seller, the
Master Servicer or the Depositor effectively cures any such defect in any
representation or warranty under such agreement within the time period
specified in such agreement as the cure period therefor, such defect shall not
in and of itself constitute an Event of Default hereunder; or
(b) either the Seller, the Master Servicer or the Depositor shall
fail to pay to the Insurer when due any amount payable by the Seller, the
Master Servicer or the Depositor under this Agreement, or the Trust Agreement,
unless such amounts are paid in full within the applicable cure period
explicitly provided for under such agreement; or
(c) the occurrence of an Event of Default under the Trust Agreement
(as defined therein).
Section 5.02. Remedies; No Remedy Exclusive.
(a) Upon the occurrence of an Event of Default, the Insurer may
exercise any one or both of the rights and remedies set forth below:
(i) exercise any rights and remedies under this
Agreement or the Trust Agreement, as applicable, in accordance with
their terms; or
(ii) take whatever action at law or in equity as may
appear necessary or desirable in its judgment to collect the amounts
then due and thereafter to become due under this Agreement, or to
enforce performance and observance of any obligation, agreement or
covenant of the Seller, the Master Servicer or the Depositor under
this Agreement or the Trust Agreement, as applicable.
(b) Unless otherwise expressly provided, no remedy herein conferred
upon or reserved is intended to be exclusive of any other available remedy,
but each remedy shall be cumulative and shall be in addition to other remedies
given under the Transaction Documents or existing at law or in equity. No
delay or omission to exercise any right or power accruing under the
Transaction Documents upon the happening of any event set forth in Section
5.01 hereof shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Insurer
to exercise any remedy reserved to the Insurer in this Article, it shall not
be necessary to give any notice, other than such notice as may be expressly
required in this Article.
Section 5.03. Waivers.
(a) No failure by any of the parties to exercise and no delay by any
of the parties in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by any of the parties of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein to
each of the parties are declared in every case to be cumulative and not
exclusive of any remedies provided by law or equity.
(b) The Insurer shall have the right, to be exercised in its complete
discretion, to waive any Event of Default hereunder, by a writing setting
forth the terms, conditions and extent of such waiver signed by the Insurer
and delivered to the Seller, the Master Servicer and the Depositor. Unless
such writing expressly provides to the contrary, any waiver so granted shall
extend only to the specific event or occurrence which gave rise to the Event
of Default so waived and not to any other similar event or occurrence which
occurs subsequent to the date of such waiver.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendments, Changes and Modifications. This Agreement
may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by the Insurer, the Trustee, the
Seller, the Master Servicer and the Depositor. The Seller, the Master
Servicer, the Depositor and the Insurer also agree to provide prior written
notification to Xxxxx'x and S&P of any amendment to this Agreement.
Section 6.02. Notices. All demands, notices and other communications
to be given hereunder shall be in writing (except as otherwise specifically
provided herein) and shall be mailed by registered mail or personally
delivered or telecopied to the recipient as follows:
(a) To the Insurer:
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Insured Portfolio Management-Structured
Finance (IPM-SF) Structured Asset Securities
Corporation Mortgage Pass-Through Certificates,
Series 1999-BC1 Class A2 Certificates.
Telecopy No.: (000) 000-0000
Confirmation: (000) 000-0000
(in each case in which notice or other communication to the Insurer
refers to an Event of Default, a claim on the Policy or with respect to which
failure on the part of the Insurer to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or other communication
should also be sent to the attention of each of the general counsel and the
Insurer and shall be marked to indicate "URGENT MATERIAL ENCLOSED.")
(b) To the Depositor:
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx, 00xx Floor
3 World Financial Center
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
(c) To the Master Servicer:
Norwest Bank Minnesota, National Association.
00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, XX 00000
Attention: SASCO 1999-BC1
Telecopy No.: (000)000-0000
Confirmation: (000)000-0000
(d) To the Trustee:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX, 00000-0000
Attention: Global Corporate Trust Services
(e) To the Seller:
Xxxxxx Capital
000 Xxxxx Xxxxxx, 00xx Xxxxx
3 World Financial Center
Xxx Xxxx, XX 00000
Section 6.03. Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, the parties hereto agree that such holding shall not invalidate
or render unenforceable any other provision hereof. The parties hereto further
agree that the holding by any court of competent jurisdiction that any remedy
pursued by any party hereunder is unavailable or unenforceable shall not
affect in any way the ability of any party to pursue any other remedy
available to it.
Section 6.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6.05. Consent to Jurisdiction and Venue, Etc. The parties
hereto irrevocably (i) agree that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in a court of
record in the Borough of Manhattan, City of New York, State of New York or in
the Courts of the United States of America located in such state, (ii) consent
to the jurisdiction of each such court in any such suit, action or proceeding
and (iii) waive any objection which it may have to the laying of venue of any
such suit, action or proceeding in any of such courts and any claim that any
such suit, action or proceeding has been brought in an inconvenient forum.
Nothing in this Section 6.05 shall limit or affect the right of the
Insurer to serve legal process in any manner permitted by law or to start
legal proceedings relating to any Transaction Document against any party
hereto or its or their respective property in the courts of any jurisdiction.
Section 6.06. Consent of Insurer. In the event that the Insurer's
consent is required under the terms hereof or any term of the Trust Agreement,
it is understood and agreed that, except as otherwise provided expressly
herein or therein, the determination whether to grant or withhold such consent
shall be made by the Insurer in its sole discretion without any implied duty
towards any other Person.
Section 6.07. Counterparts. This Agreement may be executed in
counterparts by the parties hereto and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 6.08. Headings. The headings of sections contained in this
Agreement are provided for convenience only. They form no part of this
Agreement and shall not affect its construction or interpretation. All
references to sections or subsections of this Agreement refer to the
corresponding sections or subsections of this Agreement.
Section 6.09. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT, AMONG OTHER THINGS, THIS WAIVER.
Section 6.10. Entire Agreement. This Agreement and the Policy set
forth the entire agreement between the parties with respect to the subject
matter thereof and this Agreement supersedes and replaces any agreement or
understanding that may have existed between the parties prior to the date
hereof in respect of such subject matter.
Section 6.11. Third Party Beneficiary. Each of the parties hereto
acknowledges that the Insurer shall be an express third party beneficiary of
the Trust Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all as of the day and year first above mentioned.
MBIA INSURANCE CORPORATION
By: ____________________________________________
Title: _________________________________________
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: ____________________________________________
Title: _________________________________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Master Servicer
By: ____________________________________________
Title: _________________________________________
XXXXXX CAPITAL, as Seller
By: ____________________________________________
Title: _________________________________________
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By: ____________________________________________
Title: _________________________________________
