EXHIBIT 4.2
SAMCO MORTGAGE SECURITIES CORP.,
SELLER,
,
MASTER SERVICER,
and
,
TRUSTEE
---------------------------------,
POOLING AND SERVICING AGREEMENT
Dated as of , 2000
--------------------------------
SAMCO Mortgage Securities Corp. Trust 2000-1
Mortgage Pass-Through Certificates
Series 2000-1
TABLE OF CONTENTS
Page
ARTICLE I
Definitions.................................................. 2
ARTICLE II
Conveyance of XXXx; Original Issuance of Certificates........34
Section 2.01 Conveyance of XXXx to Trustee.......................34
Section 2.02 Acceptance of XXXx by Trustee.......................36
Section 2.03 Representations, Warranties and Covenants
of the Master Servicer............................38
Section 2.03A. Representations, Warranties and Covenants
of the Seller.....................................40
Section 2.04 Substitution of XXXx................................41
Section 2.05 Representations and Warranties of the Trustee.......42
Section 2.06 Issuance of Certificates............................44
Section 2.07 Representations and Warranties Concerning
the Seller........................................44
ARTICLE III
Administration and Servicing of XXXx.........................47
Section 3.01 Master Servicer to Assure Servicing.................47
Section 3.02 Sub-Servicing Agreements Between Master
Servicer and Sub-Servicers........................48
Section 3.03 Successor Sub-Servicers.............................49
Section 3.04 Liability of the Master Servicer....................49
Section 3.05 Assumption or Termination of Sub-Servicing
Agreements by Trustee.............................50
Section 3.06 Collection of XXX Payments..........................51
Section 3.07 Collection of Taxes, Assessments and
Similar Items; Servicing Accounts.................52
Section 3.08 Access to Certain Documentation and
Information Regarding the XXXx....................53
Section 3.09 Maintenance of Primary Mortgage Insurance
Policies; Collection Thereunder...................54
Section 3.10 Maintenance of Hazard Insurance and Fidelity
Coverage..........................................54
Section 3.11 Due-on-Sale Clauses; Assumption Agreements..........57
Section 3.12 Realization Upon Defaulted XXXx.....................58
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.....59
Section 3.14 Servicing and Master Servicing Compensation.........61
Section 3.15 Annual Statement of Compliance......................61
Section 3.16 Annual Independent Public Accountants'
Servicing Report..................................62
Section 3.17 REMIC-Related Covenants.............................63
Section 3.18 Additional Information..............................63
Section 3.19 Optional Purchase of Defaulted XXXx.................63
Section 3.20 Periodic Filings with the Securities and
Exchange Commission; Additional Information.......63
ARTICLE IV
Accounts.....................................................64
Section 4.01 Collection Accounts.................................64
Section 4.02 Distribution Account................................66
Section 4.03 Permitted Withdrawals and Transfers from
the Distribution Account..........................68
ARTICLE V
Certificates.................................................72
Section 5.01 Certificates........................................72
Section 5.02 Registration of Transfer and Exchange of
Certificates......................................76
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...82
Section 5.04 Persons Deemed Owners...............................82
Section 5.05 Transfer Restrictions on Residual Certificates......82
Section 5.06 Restrictions on Transferability of Private
Certificates......................................84
Section 5.07 ERISA Restrictions..................................85
Section 5.08 Rule 144A Information...............................86
ARTICLE VI
Payments to Certificateholders...............................87
Section 6.01 Distributions on the Certificates...................87
Section 6.02 [Reserved]..........................................89
Section 6.03 Allocation of Losses................................89
Section 6.04 [Reserved]..........................................92
Section 6.05 Payments............................................92
Section 6.06 Statements to Certificateholders....................92
Section 6.07 Reports to the Trustee and the Master Servicer......95
Section 6.08 Monthly Advances....................................98
Section 6.09 Compensating Interest Payments......................98
Section 6.10 Reports of Foreclosures and Abandonment
of Mortgaged Property.............................99
ARTICLE VII
The Master Servicer.........................................100
Section 7.01 Liabilities of the Master Servicer.................100
Section 7.02 Merger or Consolidation of the Master Servicer.....100
Section 7.03 Indemnification of the Trustee.....................100
Section 7.04 Limitation on Liability of the Master Servicer
and Others.......................................101
Section 7.05 Master Servicer Not to Resign......................102
Section 7.06 [Reserved].........................................102
Section 7.07 Sale and Assignment of Master Servicing............102
ARTICLE VIII
Default.....................................................104
Section 8.01 Events of Default..................................104
Section 8.02 Trustee to Act; Appointment of Successor...........106
Section 8.03 Notification to Certificateholders.................107
Section 8.04 Waiver of Defaults.................................107
Section 8.05 List of Certificateholders.........................107
ARTICLE IX
Concerning the Trustee......................................108
Section 9.01 Duties of Trustee..................................108
Section 9.02 Certain Matters Affecting the Trustee..............110
Section 9.03 Trustee Not Liable for Certificates or XXXx........112
Section 9.04 Trustee May Own Certificates.......................113
Section 9.05 Trustee's Fees and Expenses........................113
Section 9.06 Eligibility Requirements for Trustee...............113
Section 9.07 Insurance..........................................114
Section 9.08 Resignation and Removal of the Trustee.............114
Section 9.09 Successor Trustee..................................115
Section 9.10 Merger or Consolidation of Trustee.................116
Section 9.11 Appointment of Co-Trustee or Separate Trustee......116
Section 9.12 Master Servicer Shall Provide Information as
Reasonably Required..............................117
Section 9.13 Federal Information Returns and Reports to
Certificateholders...............................118
ARTICLE X
Termination.................................................120
Xxxxxxx 00.00 Xxxxxxxxxxx Xxxx Xxxxxxxxxx by the Seller
or its Designee or Liquidation of All XXXx.......120
Section 10.02 Additional Termination Requirements................123
ARTICLE XI
Miscellaneous Provisions....................................125
Section 11.01 Intent of Parties..................................125
Section 11.02 Amendment..........................................125
Section 11.03 Recordation of Agreement...........................126
Section 11.04 Limitation on Rights of Certificateholders.........126
Section 11.05 Acts of Certificateholders.........................127
Section 11.06 [Reserved].........................................128
Section 11.07 Governing Law......................................128
Section 11.08 Notices............................................129
Section 11.09 Severability of Provisions.........................129
Section 11.10 Successors and Assigns.............................129
Section 11.11 Article and Section Headings.......................129
Section 11.12 Counterparts.......................................130
Section 11.13 Notice to Rating Agencies..........................130
EXHIBITS
Exhibit A-1 - Form of Face of Certificates
Exhibit A-2 - Form of Reverse of Certificates
Exhibit B- XXX Schedule
Exhibit C- Representations and Warranties of the Seller
Concerning the XXXx
Exhibit D- Form of Request for Release
Exhibit E- Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1 - Form of Investment Letter
Exhibit F-2 - Form of Rule 144A and Related Matters Certificate
Exhibit G- Form of Trustee's Initial Certification
Exhibit H- Form of Trustee's Final Certification
Exhibit I- Form of ERISA Letter for Class X Certificates
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of ,
2000, among , as the depositor (the "Depositor"), , as
master servicer (the "Master Servicer"), and, a banking association, as
trustee (the "Trustee").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Seller has acquired
the XXXx from , in its individual capacity and in its capacity as
trustee (" "). On the Closing Date, the Seller will sell the XXXx and
certain other property to the Trust Fund and receive in consideration therefor
Certificates evidencing the entire beneficial ownership interest in the
Trust Fund. will be the Master Servicer for the XXXx.
The Trustee shall make an election for the assets
included in the Trust Fund to be treated for federal income tax purposes as
a REMIC. On , 2000 (the "Startup Day"), all the Classes of Certificates
except for the Class R Certificate will be designated "regular interests"
in such REMIC. The Class R Certificates will be designated the "residual
interest" in such REMIC.
The XXXx will have an Outstanding Principal Balance as of
the Cut-off Date, after deducting all Scheduled Principal due on or before
the Cut-off Date, of $ . The initial principal amount of the Certificates
will not exceed such Outstanding Principal Balance.
In consideration of the mutual agreements herein
contained, the Seller, the Master Servicer and the Trustee agree as
follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and
phrases, unless otherwise expressly provided or unless the context
otherwise requires, shall have the meanings specified in this Article.
Account: The Distribution Account, the Collection
Accounts or the Servicing Accounts as the context may require.
Accrued Certificate Interest: For any Certificate (other
than a Class PO Certificate) for any Distribution Date, the interest
accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the Current Principal Amount (or, in the case of a
Class X Certificate, the Notional Amount) of such Certificate immediately
prior to such Distribution Date, calculated on the basis of a 360-day year
consisting of twelve 30-day months, less (i) in the case of an
interest-bearing Senior Certificate, such Certificate's share of any Net
Interest Shortfall and, after the Cross-Over Date, the interest portion of
any Realized Losses and (ii) in the case of a Subordinate Certificate, such
Certificate's share of any Net Interest Shortfall and the interest portion
of any Realized Losses.
Additional Interest: With respect to any XXX, the amount
of, or manner in which, as the context requires, Additional Interest in
calculated in the applicable Mortgage Note.
Advancing Date: The Business Day preceding the related
Distribution Date.
Affiliate: As to any Person, any other Person
controlling, controlled by or under common control with such Person.
"Control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise. "Controlled" and "Controlling" have
meanings correlative to the foregoing. The Trustee may conclusively presume
that a Person is not an Affiliate of another Person unless a Responsible
Officer of the Trustee has actual knowledge to the contrary.
Agreement: This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
Allocable Share: With respect to each Class of
Subordinate Certificates:
(a) as to any Distribution Date and amounts distributable pursuant
to clauses (i) and (iii) of the Subordinate Optimal Principal
Amount, the fraction, expressed as a percentage, the numerator
of which is the Current Principal Amount of such Class and the
denominator of which is the aggregate Current Principal Amount
of all Classes of Subordinate Certificates; and
(b) as to any Distribution Date and amounts distributable pursuant
to clause (ii), (iv) and (v) of the Subordinate Optimal
Principal Amount, and as to each Class of Subordinate
Certificates (other than the Class of Subordinate Certificates
having the lowest numerical designation as to which the Class
Prepayment Distribution Trigger shall not be applicable) for
which (x) the related Class Prepayment Distribution Trigger has
been satisfied on such Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the
Current Principal Amount of such Class and the denominator of
which is the aggregate Current Principal Amount of all Classes
of Subordinate Certificates and (y) the related Prepayment
Distribution Trigger has not been satisfied on such
Distribution Date, 0%; provided that if on a Distribution Date,
the Current Principal Amount of any Class of Subordinate
Certificates for which the related Class Prepayment
Distribution Trigger was satisfied on such Distribution Date is
reduced to zero, any amounts distributed pursuant to this
clause (b), to the extent of such Class's remaining Allocable
Share, shall be distributed to the remaining Classes of
Subordinate Certificates which satisfy the Class Prepayment
Distribution Trigger and to the Subordinate Class having the
lowest numerical designation in reduction of their respective
Current Principal Amounts in the order of their numerical Class
designations.
Applicable Credit Rating: A credit rating of Aaa, in the
case of S&P or a credit rating of AAA, in the case of Fitch, for any
long-term deposit or security or a rating of A- 1+, in the case of S&P, or
F-1 in the case of Fitch, for any short-term deposit or security.
Applicable State Law: For purposes of Section 9.13(d),
the Applicable State Law shall be (a) the law of the State of New York; and
(b) the law of the State of , and (c) such other state law whose
applicability shall have been brought to the attention of the Trustee by
either (i) an Opinion of Counsel delivered to it, or (ii) written notice
from the appropriate taxing authority as to the applicability of such state
law.
Appraised Value: Means the Initial Appraised Value of a
XXX or the appraised value of any appraisal required pursuant to any XXX.
Appreciation Share: With respect to any Mortgage Note,
the percentage of appreciation in the value of the Mortgaged Property from
the date of origination of such XXX to the earlier of (i) the date on which
any Mortgage Termination Event occurs and (ii) the maturity date thereof
with respect to the related XXX that the Mortgagor must pay to the
Mortgagee.
Assumed Final Distribution Date: With respect to the
Certificates, , 20 .
Available Funds: With respect to any Distribution Date,
an amount equal to the aggregate of the following amounts with respect to
the XXXx: (a) all previously undistributed payments on account of principal
(including the principal portion of Scheduled Payments, Principal
Prepayments and the principal portion of Insurance Proceeds and Net
Liquidation Proceeds) and all previously undistributed payments on account
of interest and Additional Interest received on or after the Cut-off Date
and on or prior to the related Determination Date, (b) any Monthly Advances
(including Distribution Account Advances) and Compensating Interest
Payments by the Master Servicer with respect to such Distribution Date and
(c) any amount reimbursed by the Trustee pursuant to Subsection 4.02(d) in
connection with losses on Permitted Investments, except:
(i) all payments that were due on or before the
Cut-off Date;
(ii) all Principal Prepayments and Liquidation
Proceeds received after the applicable Prepayment Period;
(iii) all payments, other than Principal
Prepayments, that represent early receipt of Scheduled
Payments due on a date or dates subsequent to the related
Due Date;
(iv) amounts received on particular XXXx as late
payments of principal or interest and respecting which,
and to the extent that, there are any unreimbursed
Monthly Advances (including Distribution Account
Advances);
(v) amounts of Monthly Advances (including
Distribution Account Advances) determined to be
Nonrecoverable Advances;
(vi) amounts permitted to be withdrawn from the
Distribution Account pursuant to Subsection 4.03(a); and
(vii) amounts withdrawn by the Trustee pursuant to
Subsection 4.03(b) to pay the Trustee's Fee and expenses.
Balloon XXX: A XXX that provided on the Cut-off Date for
amortization on the basis of an amortization schedule extending beyond its
stated maturity by more than twelve months with a disproportionate
Scheduled Payment due on its stated maturity date equal to the remaining
principal balance of such XXX.
Balloon Payments: With respect to a Balloon XXX, the
principal portion of the Scheduled Payment due on its stated maturity equal
to the remaining principal balance of the Balloon XXX.
Bankruptcy Code: The United States Bankruptcy Code, as
amended as codified in 11 U.S.C. ss.101-1330.
Book-Entry Certificates: Initially, all Classes of
Certificates other than the Class X, Class R, Class ______, Class _____ and
Class _____ Certificates.
BSMCC: Bear Xxxxxxx Mortgage Capital Corporation.
Business Day: Any day other than (i) a Saturday or a
Sunday, or (ii) a day on which the New York Stock Exchange is closed or on
which banking institutions in New York City, ________, _________ or any
other jurisdiction in which the Corporate Trust Office or the principal
place of business of the Master Servicer is located are authorized or
obligated by law or executive order to be closed.
Certificate: Any mortgage pass-through certificate
evidencing a beneficial ownership interest in the Trust Fund signed and
countersigned by the Trustee in substantially the forms annexed hereto as
Exhibit A-1 and A-2, with the blanks therein appropriately completed.
Certificate Owner: Any Person who is the beneficial owner
of a Certificate registered in the name of the Depository or its nominee.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, X, XX, X, X, X,
X, X, X, X and R.
Class PO Cash Shortfall: As defined in Section 6.01
(a)(C).
Class PO Deferred Amount: With respect to each
Distribution Date through the Cross-Over Date, the aggregate of all amounts
allocable on such Distribution Date to the Class PO Certificates in respect
of the principal portion of any Realized Losses on Discount XXXx and Class
PO Cash Shortfall, and all amounts previously allocated in respect of such
losses and such shortfall to the Class PO Certificates and not distributed
on prior Distribution Dates. No interest shall accrue on any Class PO
Deferred Amount.
Class PO Deferred Payment Writedown Amount: With respect
to any Distribution Date, the amount if any, distributed on such date in
respect of the Class PO Deferred Amount pursuant to Section 6.01(a)(A)
fourth.
Class PO Principal Distribution Amount: On each
Distribution Date, an amount, without duplication, equal to the sum of:
(i) the PO Percentage of all scheduled payments of
principal due on each Discount XXX on the related Due
Date as specified in the amortization schedule at the
time applicable thereto (after adjustments for previous
principal prepayments, but before any adjustment to such
amortization schedule by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or
grace period);
(ii) the PO Percentage of the Scheduled Principal
Balance of each Discount XXX which was the subject of a
Voluntary Principal Prepayment in full received by the
Master Servicer during the applicable Prepayment Period;
(iii) the PO Percentage of all Voluntary Principal
Prepayments in part for each Discount XXX received during
the applicable Prepayment Period;
(iv) the lesser of (a) the PO Percentage of the sum
of (A) all Net Liquidation Proceeds allocable to
principal on each Discount XXX which became a Liquidated
XXX during the related Prepayment Period (other than a
Discount XXX described in the immediately following
clause (B)) and (B) the Scheduled Principal Balance of
each Discount XXX purchased by an Insurer from the
Trustee during the related Prepayment Period pursuant to
the related Primary Mortgage Insurance Policy, if any, or
otherwise; and (b) the PO Percentage of the sum of (A)
the Scheduled Principal Balance of each Discount XXX
which became a Liquidated XXX during the related
Prepayment Period (other than a Discount XXX described in
the immediately following clause (B)) and (B) the
Scheduled Principal Balance of each such XXX that was
purchased by an Insurer from the Trustee during the
related Prepayment Period pursuant to the related Primary
Mortgage Insurance Policy, if any, or otherwise; and
(v) the PO Percentage of the sum of (a) the
Scheduled Principal Balance of each Discount XXX or REO
Property which was repurchased by the Seller or a prior
transferor of such XXX on such Distribution Date
pursuant to Section 2.02 or 2.03(A)(b) or which was
purchased pursuant to Section 3.19 and (b) the excess, if
any, of the Scheduled Principal Balance of a Discount XXX
that has been replaced by the Seller or a prior
transferor of such XXX with a Substitute XXX pursuant to
Section 2.04 on such Distribution Date over the Scheduled
Principal Balance of such Substitute XXX.
Class Prepayment Distribution Trigger: For each Class of
Subordinate Certificates for any Distribution Date, the Class Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a
percentage), the numerator of which is the aggregate Current Principal
Amount of such Class and each Class of Subordinate Certificates subordinate
thereto, if any, and the denominator of which is the Scheduled Principal
Balances of all of the XXXx as of the related Due Date, equals or exceeds
such percentage calculated as of the Closing Date.
Closing Date: ____________ __, 2000.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: A segregated account established and
maintained by the Master Servicer or any Sub-Servicer with respect to the
XXXx and with respect to REO Property in a Designated Depository
Institution for receipt of principal and interest and other amounts as
described in Section 4.01.
Compensating Interest Payments: As defined in Section 6.09.
Corporate Trust Office: The office of the Trustee at
which at any particular time its corporate trust business is administered,
which office, at the date of the execution of this Agreement, is located at
_____________________________, Attention:
Cross-Over Date: The first Distribution Date on which the
aggregate Current Principal Amount of the Subordinate Certificates has been
reduced to zero (giving effect to all distributions on such Distribution
Date).
Current Principal Amount: With respect to any Certificate
(other than a Class X Certificate) as of any Distribution Date, the initial
principal amount of such Certificate as reduced by (A) the sum of (i) all
amounts distributed on previous Distribution Dates on such Certificate with
respect to principal, (ii) the principal portion of all Realized Losses
allocated prior to such Distribution Date to such Certificate, and (iii) in
the case of a Subordinate Certificate, such Certificate's pro rata share,
if any, of the Subordinate Certificate Writedown Amount for previous
Distribution Dates. With respect to any Class of Certificates (other than
the Class X Certificates), the Current Principal Amount thereof will equal
the sum of the Current Principal Amounts of all Certificates in such Class.
Notwithstanding the foregoing, solely for purposes of giving consents,
directions, waivers, approvals, requests and notices, the Class R
Certificate after the Distribution Date on which it receives the
distribution of the last dollar of its original principal amount shall be
deemed to have a Current Principal Amount equal to its Current Principal
Amount on the day immediately preceding such Distribution Date.
Cut-off Date: ______________ __, 2000.
Cut-off Date Balance: $_______________
Debt Service Reduction: Any reduction of the Scheduled
Payments which a Mortgagor is obligated to pay with respect to a XXX as a
result of any proceeding under the Bankruptcy Code or any other similar
state law or other proceeding.
Debtor Relief Laws: Any applicable liquidation,
conservatorship, receivership, bankruptcy, insolvency, rearrangement,
moratorium, reorganization, or similar debtor relief laws affecting the
rights of creditors generally from time to time in effect.
Defaulted XXX: Any XXX as to which the Mortgagor has
failed to make unexcused payment in full of three or more consecutive
Scheduled Payments.
Deficient Valuation: With respect to any XXX, a valuation
of the Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding indebtedness under the XXX, which valuation
results from a proceeding initiated under the Bankruptcy Code or any other
similar state law or other proceeding.
Depository: The Depository Trust Company, the nominee of
which is Cede & Co., or any successor thereto.
Depository Agreement: The meaning specified in Subsection
5.01(a) hereof.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
Designated Depository Institution: A depository
institution (commercial bank, mutual savings bank or savings and loan
association) or trust company (which may include the Trustee), the deposits
of which are insured by the FDIC or Bank Insurance Fund to the extent
provided by law or the Federal Home Loan Bank of Cincinnati.
Determination Date: The 10th day of the month preceeding
the Distribution Date, or if such day is not a Business Day, the preceding
Business Day.
Discount Mortgage Loan: Any XXX with a Remittance Rate
less than _____ per annum.
Distribution Account: The account or accounts created and
maintained pursuant to Section 4.02, which shall be denominated
"__________________ as Trustee f/b/o holders of Structured Asset Mortgage
Investments Trust 2000-1, Mortgage Pass-Through Certificates, Series 2000-1
- Distribution Account."
Distribution Account Advance: As of any Determination
Date, the amount on deposit in a Collection Account which is not required
to be transferred to the Distribution Account for distribution during the
calendar month in which such Determination Date occurs but which is
deposited in the Distribution Account and used to make a distribution to
Certificateholders during such calendar month on account of Scheduled
Payments on the XXXx due on the Due Date for such month not being paid on
or before such Determination Date except insofar as such unpaid amounts are
the result of application of the Relief Act.
Distribution Date: The 25th day of any month, beginning
in the month immediately following the month of the Closing Date, or, if
such 25th day is not a Business Day, the Business Day immediately
following.
DTC Custodian: _________________________, or its
successors in interest as custodian for the Depository.
Due Date: With respect to each XXX, the date in each
month on which its Scheduled Payment is due if such due date is the first
day of a month and otherwise is deemed to be the first day of the following
month.
Due Period: With respect to any Distribution Date, the
period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on
the first day of the month in which the Distribution Date occurs.
Eligible Account:
(i) maintained with a depository institution the
debt obligations of which (or in the case of a depository
institution that is the principal subsidiary of a holding
company, the obligations of such holding company) are
rated in one of the two highest rating categories by
either Rating Agency,
(ii) an account or accounts the deposits in which
are fully insured by the Federal Deposit Insurance
Corporation (the "FDIC"),
(iii) an account or accounts the deposits in which
are insured by the FDIC (to the limits established by the
FDIC), and the uninsured deposits in which are invested
in Eligible Investments held in the name of the Trustee,
or
(iv) an account or accounts otherwise acceptable to
each Rating Agency.
ERISA: The Employee Retirement Income Security Act of
1974, as amended.
Event of Default: An event described in Section 8.01.
Excess Liquidation Proceeds: To the extent that such
amount is not required by law to be paid to the related Mortgagor, the
amount, if any, by which Liquidation Proceeds with respect to a Liquidated
XXX exceed the sum of (i) the Outstanding Principal Balance of such XXX and
accrued but unpaid interest at the related Stated Interest Rate through the
last day of the month in which the related Liquidation Date occurs, plus
(ii) related Liquidation Expenses.
Xxxxxx Xxx: Xxxxxx Xxx (formerly the Federal National
Mortgage Association) or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any
successor thereto.
Fitch: Fitch IBCA, Inc.
Fractional Undivided Interest: With respect to any Class
of Certificates (other than the Class X Certificates), the fractional
undivided interest evidenced by any Certificate of such Class, the
numerator of which is the Current Principal Amount of such Certificate and
the denominator of which is the Current Principal Amount of such Class.
With respect to the Class X Certificates, the fractional undivided interest
evidenced by any Certificate of such Class the numerator of which is the
Notional Amount applicable to such Certificate and the denominator of
which is the Notional Amount of the applicable Class. With respect to the
Certificates in the aggregate, the fractional undivided interest evidenced
by each of the Class X and Class R Certificates will be deemed to equal 1%
multiplied by a fraction the numerator of which is the Current Principal
Amount or Notional Amount of each such Certificate and the denominator of
which is the aggregate Current Principal Amount or Notional Amount of each
such Class and (ii) a Certificate of any other Class will be deemed to
equal 98% multiplied by a fraction, the numerator of which is the Current
Principal Amount of such Certificate and the denominator of which is the
Current Principal Amount of all the Certificates.
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan
Mortgage Corporation, or any successor thereto.
Funds Transfer Date: The Business Day prior to the
related Distribution Date in any month.
Global Certificate: Any Private Certificate registered in
the name of the Depository or its nominee, beneficial interests in which
are reflected on the books of the Depository or on the books of a Person
maintaining an account with such Depository (directly or as an indirect
participant in accordance with the rules of such Depository). As of the
Closing Date there will be no Global Certificates.
Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, subject to Subsections
11.02(b) and 11.05(e), solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Seller, the Master Servicer, a Sub-Servicer, if any, or the Trustee, or any
Affiliate thereof shall be deemed not to be outstanding and the Fractional
Undivided Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Fractional Undivided
Interests necessary to effect any such consent has been obtained.
Implied Market Rate: With respect to any XXX, a typical
market interest rate for a comparable single-family mortgage product having
the same principal terms (e.g., the same maturity and same LTV) but not
having a shared appreciation mortgage feature.
Indemnified Persons: The Trustee, its officers,
directors, agents and employees and any separate or co-trustee and its
officers, directors, agents and employees.
Independent: When used with respect to any specified
Person, this term means that such Person (a) is in fact independent of the
Seller or the Master Servicer and of any Affiliate of the Seller or the
Master Servicer, (b) does not have any direct financial interest or any
material indirect financial interest in the Seller or the Master Servicer,
or any Affiliate of the Seller or the Master Servicer, and (c) is not
connected with the Seller or the Master Servicer, or any Affiliate as an
officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Indexed Appreciation Payment: With respect to any
Portfolio, [to come].
Individual Certificate: Any Private Certificate
registered in the name of the Holder other than the Depository or its
nominee.
Initial Appraised Value: The amount set forth in an
appraisal made in connection with the origination of the related XXX as the
value of the Mortgaged Property.
Institutional Accredited Investor: Any Person meeting the
requirements of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the
Securities Act or any entity all the equity holders in which come within
such paragraphs.
Insurance Policy: With respect to any XXX, any Primary
Mortgage Insurance Policy, standard hazard insurance policy, flood
insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any
Insurance Policy covering any XXX or Mortgaged Property other than amounts
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note or Security Instrument and other than amounts used to repair
or restore the Mortgaged Property or to reimburse Insured Expenses.
Insured Expenses: Expenses covered by any Insurance
Policy.
Insurer: Any issuer of an Insurance Policy.
Interest Accrual Period: With respect to each
Distribution Date, for each Class of interest bearing Certificates, the
calendar month preceding the month in which the Distribution Date occurs,
commencing in ___________, 2000.
Interest Shortfall: With respect to any Distribution Date
and each XXX that during the related Prepayment Period was the subject of a
Voluntary Principal Prepayment, or constitutes a Relief Act XXX, an amount
determined as follows:
(a) partial principal prepayments: The difference between (i) one
month's interest at the applicable Remittance Rate on the
amount of such prepayment and (ii) the amount of interest for
the calendar month of such prepayment (adjusted to the
applicable Remittance Rate) received at the time of such
prepayment;
(b) principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one month's
interest at the applicable Remittance Rate on the Scheduled
Principal Balance of such XXX immediately prior to such
prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Remittance
Rate) received at the time of such prepayment; and
(c) Relief Act XXXx: As to any Relief Act XXX, the excess of (i) 30
days' interest (or, in the case of a principal prepayment in
full, interest to the date of prepayment) on the Scheduled
Principal Balance thereof (or, in the case of a principal
prepayment in part, on the amount so prepaid) at the related
Remittance Rate over (ii) 30 days' interest (or, in the case of
a principal prepayment in full, interest to the date of
prepayment) on such Scheduled Principal Balance (or, in the
case of a Principal Prepayment in part, on the amount so
prepaid) at the Remittance Rate required to be paid by the
Mortgagor as limited by application of the Relief Act.
Investment Letter: The letter to be furnished by each
Institutional Accredited Investor which purchases any Class of Private
Certificates in connection with such purchase, substantially in the form
set forth as Exhibit F-1 hereto.
Liquidated XXX: Any defaulted XXX as to which the Master
Servicer has determined that all amounts it expects to recover from or on
account of such XXX have been recovered.
Liquidation Date: With respect to any Liquidated XXX, the
date on which the Master Servicer has certified that such XXX has become a
Liquidated XXX.
Liquidation Expenses: With respect to a XXX in
liquidation, unreimbursed expenses paid or incurred by or for the account
of the Master Servicer and not recovered by the Master Servicer under any
Primary Mortgage Insurance Policy for reasons other than the Master
Servicer's failure to ensure the maintenance of or compliance with a
Primary Mortgage Insurance Policy, such expenses including (a) property
protection expenses, (b) property sales expenses, (c) foreclosure and sale
costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
Liquidation Proceeds: Cash received in connection with
the liquidation of a defaulted XXX, whether through trustee's sale,
foreclosure sale, Insurance Proceeds, condemnation proceeds or otherwise.
Loan Summary and Remittance Report: The report to be
submitted by the Master Servicer to the Trustee pursuant to Subsection
6.07(b).
Loan-to-Value Ratio: The fraction, expressed as a
percentage, the numerator of which is the original principal balance of the
related XXX and the denominator of which is the Original Value of the
related Mortgaged Property.
Loss Allocation Limitation: The meaning specified in
Section 6.03(b)(B) hereof.
Master Servicer: With respect to the XXXx, _______, or
its successor in interest, or any successor master servicer with respect to
the XXXx appointed as herein provided.
Master Servicing Fee: As to any XXX and Distribution
Date, an amount equal to the product of (i) the Scheduled Principal Balance
of such XXX as of the Due Date in the preceding calendar month and (ii) the
Master Servicing Fee Rate. Any Master Servicing Fee in excess of [ ]% per
annum will be set aside by the Master Servicer to pay for lender funded
mortgage insurance and will not be treated as servicing compensation to the
Master Servicer and will not be available to make Compensating Interest
Payments.
Master Servicing Fee Rate: With respect to each XXX, the
per annum rate set forth on the XXX Schedule which shall be between [ ]%
and [ ]% per annum.
Monthly Advance: The advance (including a Distribution
Account Advance) required to be made by the Master Servicer on the related
Advancing Date pursuant to Section 6.08.
Moody's: Xxxxx'x Investors Service, Inc., and its
successors and assigns.
Mortgage File: The mortgage documents listed in Section
2.01(b) pertaining to a particular XXX and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Note: The originally executed note or other
evidence of the indebtedness of a Mortgagor under the related XXX.
Mortgage Termination Event: With respect to any XXX, the
events specified in the related Mortgage Note (which shall substantially
conform with the events shown on Schedule __ hereto as provided herein) as
to which the Mortgagor is required to fully repay its liability thereunder.
Mortgaged Property: Land and improvements securing the
indebtedness of a Mortgagor under the related XXX or, in the case of REO
Property, such REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Interest Shortfall: With respect to any Distribution
Date, the Interest Shortfall, if any, for such Distribution Date net of
Compensating Interest Payments made with respect to such Distribution Date.
Net Liquidation Proceeds: As to any Liquidated XXX,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable
therefrom to the Master Servicer in accordance with this Agreement and (ii)
unreimbursed advances by the Master Servicer or a Sub-Servicer and Monthly
Advances including Distribution Account Advances.
Non-Discount XXX: Any XXX with a Remittance Rate equal to
or greater than [ ]% per annum.
Non-PO Percentage: With respect to any Discount XXX, the
Remittance Rate thereof divided by [ ]%.
Nonrecoverable Advance: Any advance (i) which was
previously made or is proposed to be made by the Master Servicer and (ii)
which, in the good faith judgment of the Master Servicer, as evidenced by
an Officer's Certificate, will not or, in the case of a proposed advance,
would not, be ultimately recoverable by the Master Servicer from
Liquidation Proceeds, Insurance Proceeds or future payments on the XXX for
which such advance was made.
Notional Amount: On any Distribution Date, with respect
to the Class X Certificates an amount equal to the aggregate of the
Scheduled Principal Balances of the Non- Discount XXXx as of the related
Due Date.
Offered Certificate: Any Class A, Class PO, Class X,
Class B, Class C, Class D and Class R Certificate.
Offered Subordinate Certificates: The Class B, Class C
and Class D Certificates.
Officer's Certificate: A certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President or a
Vice President or Assistant Vice President or other authorized officer of
the Master Servicer and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel who is
or are acceptable to the Trustee and who, unless required to be Independent
(an "Opinion of Independent Counsel"), may be internal counsel for the
Master Servicer.
Original Subordinate Principal Balance: The sum of the
aggregate Current Principal Amounts of each Class of Subordinate
Certificates as of the Cut-off Date.
Original Value: The lesser of (i) the Appraised Value or
(ii) sales price of a Mortgaged Property at the time of origination of a
XXX, except that in instances where either (i) or (ii) is unavailable, the
other may be used to determine Original Value, or if both (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Trustee.
Outstanding XXX: With respect to any Due Date, a XXX
which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated XXX and was not purchased
pursuant to Sections 2.02, 2.03A or 3.19 or replaced pursuant to Section
2.04.
Outstanding Principal Balance: As of the time of any
determination, the principal balance of a XXX remaining to be paid by the
Mortgagor, or, in the case of an REO Property, the principal balance of the
related XXX remaining to be paid by the Mortgagor at the time such property
was acquired by the Trust Fund less any Net Insurance Proceeds with respect
thereto to the extent applied to principal.
Pass-Through Rate: As to each Class of Certificates,
other than the Class PO Certificates, the rate of interest set forth, or
determined as provided with respect thereto, in Section 5.01. Any monthly
calculation of interest at a stated rate shall be based upon annual
interest at such rate divided by twelve.
Permitted Investments: Any one or more of the following
obligations or securities held in the name of the Trustee for the benefit
of the Certificateholders:
(i) direct obligations of, and obligations the
timely payment of which are fully guaranteed 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;
(ii) (a) demand or time deposits, federal funds or
bankers' acceptances issued by any depository institution
or trust company incorporated under the laws of the
United States of America or any state thereof (including
the Trustee acting in its commercial banking capacity)
and subject to supervision and examination by federal
and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or
the long-term unsecured debt obligations or deposits of
such depository institution or trust company at the time
of such investment or contractual commitment providing
for such investment have the Applicable Credit Rating or
better from each Rating Agency and (b) any other demand
or time deposit or certificate of deposit that is fully
insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a)
any security described in clause (i) above or (b) any
other security issued or guaranteed by an 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, in either case
entered into with a depository institution or trust
company (acting as principal) described in clause (ii)(a)
above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a
discount issued by any corporation (including the
Trustee) incorporated under the laws of the United States
of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the
time of such investment or contractual commitment
providing for such investment; provided, however, that
securities issued by any particular corporation will not
be Permitted Investments to the extent that investments
therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part
of the Trust to exceed 10% of the aggregate Outstanding
Principal Balances and amounts of all the XXXx and
Permitted Investments held as part of the Trust;
(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 one year after the date of
issuance thereof) having the Applicable Credit Rating or
better from each Rating Agency at the time of such
investment;
(vi) a Reinvestment Agreement issued by any bank,
insurance company or other corporation or entity;
(vii) any other demand, money market or time
deposit, obligation, security or investment as may be
acceptable to each Rating Agency as evidenced in writing
by each Rating Agency to the Trustee; and
(viii) any money market funds (including, without
limitation, BT Institutional Treasury Money Fund) the
collateral of which consists of obligations fully
guaranteed 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 (which may include
repurchase obligations secured by collateral described in
clause (i) and having the Applicable Credit Rating or
better from each Rating Agency;
Securities Legend: "THIS CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF,
BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING
FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT
THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO
AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN
THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
AND ANY OTHER APPLICABLE JURISDICTION.
Person: Any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
Physical Certificates: Initially, the Class X
Certificates, the Private Certificates and the Residual Certificate.
Plan: As defined in Section 5.07(a).
PO Percentage: With respect to any Discount XXX, the
fraction, expressed as a percentage, equal to [ ]% minus the Remittance
Rate thereof divided by [ ]%; and with respect to any Non-Discount XXX, 0%.
Prepayment Period: With respect to any XXX and any
Distribution Date, the calendar month preceding the month of such
Distribution Date.
Primary Mortgage Insurance Policy: Any primary mortgage
guaranty insurance policy issued in connection with a XXX which provides
compensation to a Mortgage Note holder in the event of default by the
obligor under such Mortgage Note or the related Security Instrument, or any
replacement policy therefor.
Principal Prepayment: Any payment (whether partial or
full) or other recovery of principal on a XXX which is received in advance
of its scheduled Due Date to the extent that it is not accompanied by an
amount as to interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment,
including Insurance Proceeds and the purchase price in connection with any
purchase of a XXX, any cash deposit in connection with the substitution of
a XXX, and the principal portion of Net Liquidation Proceeds.
Private Certificate: Any Class B, Class C or Class D
Certificate.
QIB: A Qualified Institutional Buyer as defined in Rule
144A promulgated under the Securities Act.
Qualified Insurer: Any insurance company duly qualified
as such under the laws of the state or states in which the related
Mortgaged Property or Mortgaged Properties is or are located, duly
authorized and licensed in such state or states to transact the type of
insurance business in which it is engaged and approved as an insurer by the
Master Servicer, so long as the claims paying ability of which is
acceptable to the Rating Agencies for pass-through certificates having the
same rating as the Certificates rated by the Rating Agencies as of the
Closing Date.
Rating Agencies: S&P and Xxxxx'x.
Rating Agency Eligible Account: An account, including one
maintained with the Trustee, which either (i) is a trust account maintained
with the corporate trust department of a depository institution or trust
company (including, without limitation, the Trustee) organized under the
laws of the United States of America or any one of the states thereof or
the District of Columbia which is not affiliated with the Master Servicer,
any Sub-Servicer or any other master servicer other than the Trustee, (ii)
is maintained with an entity which is an institution whose deposits are
insured by the FDIC or the Bank Insurance Fund, the unsecured and
uncollateralized long-term debt obligations of which shall be rated "A" or
higher by S&P and "A" or higher by Fitch, or one of the two highest
short-term ratings by each Rating Agency, and which is either (a) a federal
savings association duly organized, validly existing and in good standing
under the federal banking laws, (b) an institution duly organized, validly
existing and in good standing under the applicable banking laws of any
state, (c) a national banking association under the federal banking laws,
(d) a principal subsidiary of a bank holding company, or (e) the Federal
Home Loan Bank of ___________ or (iii) otherwise meets the requirements of
each Rating Agency for the maintenance of the ratings on the Certificates.
Realized Loss: Any (i) Deficient Valuation or (ii) as to
any Liquidated XXX, the positive amount, if any, of (x) the Outstanding
Principal Balance of such Liquidated XXX plus accrued and unpaid interest
thereon at the Stated Interest Rate through the last day of the month of
such liquidation less (y) the related Net Liquidation Proceeds with respect
to such XXX.
Record Date: With respect to any Distribution Date, the
close of business on the last Business Day of the month immediately
preceding the month of such Distribution Date.
Reinvestment Agreements: One or more reinvestment
agreements, acceptable to the Rating Agencies, from a bank, insurance
company or other corporation or entity (including the Trustee).
Relief Act: The Soldiers' and Sailors' Civil Relief Act
of 1940, as amended.
Relief Act XXX: Any XXX as to which the Scheduled Payment
thereof has been reduced due to the application of the Relief Act.
REMIC: A real estate mortgage investment conduit, as
defined in the Code.
REMIC Assets: That group of assets contained in the Trust
Fund designated as a REMIC consisting of (i) the XXXx, (ii) the
Distribution Account, (iii) any REO Property and (iv) any proceeds of the
foregoing.
REMIC Opinion: An Opinion of Independent Counsel, to the
effect that the proposed action described therein would not, under the
REMIC Provisions, (i) cause the REMIC Assets to fail to qualify as a REMIC
while any regular interest in such REMIC is outstanding, (ii) result in a
tax on prohibited transactions or (iii) constitute a taxable contribution
after the Startup Day.
REMIC Provisions: The provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
the Code, and related provisions and regulations promulgated thereunder, as
the foregoing may be in effect from time to time.
Remittance Rate: With respect to each XXX, the annual
rate of interest remitted to the Master Servicer, equal to the Stated
Interest Rate minus the sum of (i) the Master Servicing Fee Rate and
Trustee Fee and (ii) any Retained Yield.
REO Property: A Mortgaged Property acquired in the name
of the Trustee, for the benefit of Certificateholders, by foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted XXX.
Repurchase Price: With respect to any XXX (or any
property acquired with respect thereto) required to be repurchased pursuant
to Section 2.02 or 2.03A an amount equal to the sum of (i) the Scheduled
Principal Balance of the XXX, plus (ii) interest on such Scheduled
Principal Balance at the Remittance Rate from the date on which interest
has last been paid up to, and not including, the date of repurchase, less
amounts received from or on behalf of the Mortgagor in respect of such
repurchased XXX which are being held in the Distribution Account for
distribution in the month of repurchase, plus (iii) the greater of (a) the
Indexed Appreciation Payment or (b) the Implied Market Rate times the
accrued interest on the Outstanding Principal Balance on the related XXX
since the most recent interest payment on such XXX Principal Prepayment,
plus (iv) expenses reasonably incurred or to be incurred by the Master
Servicer in respect of the breach or defect giving rise to the repurchase
obligation, including any expenses arising out of the repurchase obligation
and any negative cost of carrying the XXX incurred by the Master Servicer
during the period prior to it being repurchased by the Seller.
Request for Release: A request for release in the form
attached hereto as Exhibit D.
Required Insurance Policy: With respect to any XXX, any
insurance policy which is required to be maintained from time to time under
this Agreement with respect to such XXX.
Residual Certificate: The Class R Certificate.
Responsible Officer: Any officer assigned to the
corporate trust department or similar department of the Trustee (or any
successor division or department thereto), and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
Retained Yield: Any additional fees or payments made by a
Mortgagor that the Master Servicer is entitled to and is not part of the
Master Servicing Fee.
Rule 144A Certificate: The certificate to be furnished by
each purchaser of a Private Certificate which is a Qualified Institutional
Buyer as defined under Rule 144A promulgated under the Securities Act,
substantially in the form set forth as Exhibit F-2 hereto.
XXX: A share appreciation XXX transferred and assigned to
the Trustee pursuant to Section 2.01 or Section 2.04 and held as a part of
the Trust Fund, as identified in the XXX Schedule, including a Mortgage
Loan the property securing which has become an REO Property.
SAMCO: SAMCO Mortgage Securities Corp.
XXX Schedule: The schedule, attached hereto as Exhibit B
with respect to the XXXx and as amended from time to time to reflect the
repurchase or substitution of XXXx pursuant to this Agreement.
"S&P": Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successors in interest.
"Sale and Servicing Agreement": Those certain sale and
servicing agreements between BSMCC and each seller named thereto a list of
which is attached as Schedule ___ hereto.
Scheduled Payment: With respect to any XXX and any month,
the scheduled payment or payments of principal and interest due during such
month on such XXX which either is payable by a Mortgagor in such month
under the related Mortgage Note or, in the case of REO Property, would
otherwise have been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any
Scheduled Payment.
Scheduled Principal Balance: With respect to any XXX on
any Distribution Date, (i) the unpaid principal balance of such XXX as of
the close of business on the related Due Date (i.e., taking account of the
principal payment to be made on such Due Date and irrespective of any
delinquency in its payment), as specified in the amortization schedule at
the time relating thereto (before any adjustment to such amortization
schedule by reason of any bankruptcy or similar proceeding occurring after
the Cut-off Date (other than a Deficient Valuation) or any moratorium or
similar waiver or grace period) less (ii) any Principal Prepayments
(including the principal portion of Net Liquidation Proceeds) received
during or prior to the related Prepayment Period; provided that the
Scheduled Principal Balance of a Liquidated XXX is zero.
Securities Act: The Securities Act of 1933, as amended.
Subordinate Certificates: The Class B, Class C, Class D,
Class _, Class _ and Class _ Certificates.
Security Instrument: A written instrument creating a
valid first lien on a Mortgaged Property securing a Mortgage Note, which
may be any applicable form of mortgage, deed of trust, deed to secure debt
or security deed, including any riders or addenda thereto.
Seller: SAMCO Mortgage Securities Corp., a Delaware
corporation, or its successors in interest.
Senior Certificates: The Class A, Class PO, Class X and
Class R Certificates.
Senior P&I Certificates: The Senior Certificates other
than the Class PO Certificates.
Senior P&I Optimal Principal Amount: As to any
Distribution Date, an amount equal to the sum, without duplication, of the
following (but in no event greater than the aggregate Current Principal
Amounts of the Senior P&I Certificates immediately prior to such
Distribution Date):
(i) the Senior Percentage of the Non-PO Percentage
of all scheduled payments of principal allocated to the
Scheduled Principal Balance due on each Outstanding XXX
on the related Due Date as specified in the amortization
schedule at the time thereto (after adjustments for
previous Principal Prepayments but before any adjustment
to such amortization schedule by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver
or grace period);
(ii) the Senior Prepayment Percentage of the Non-PO
Percentage of all Voluntary Principal Prepayments in part
received during the related Prepayment Period with
respect to each XXX together with the Senior Prepayment
Percentage of the Non-PO Percentage of the Scheduled
Principal Balance of each XXX which was the subject of a
Voluntary Principal Prepayment in full during the related
Prepayment Period;
(iii) the lesser of (a) the Senior Prepayment
Percentage of the Non-PO Percentage of the sum of (A) all
Net Liquidation Proceeds allocable to principal received
in respect of each XXX which became a Liquidated XXX
during the related Prepayment Period (other than XXXx
described in the immediately following clause (B)) and
(B) the Scheduled Principal Balance of each such XXX
purchased by an Insurer from the Trustee during the
related Prepayment Period, pursuant to the related
Primary Mortgage Insurance Policy, if any, or otherwise;
and (b) the Senior Percentage of the Non-PO Percentage of
the sum of (A) the Scheduled Principal Balance of each
XXX which became a Liquidated XXX during the related
Prepayment Period (other than the XXXx described in the
immediately following clause (B)) and (B) the Scheduled
Principal Balance of each such XXX that was purchased by
an Insurer from the Trustee during the related Prepayment
Period pursuant to the related Primary Mortgage Insurance
Policy, if any, or otherwise,
(iv) the Senior Prepayment Percentage of the Non-PO
Percentage of the Scheduled Principal Balance of each XXX
or REO Property which was purchased by the Seller or a
prior transferor of such XXX on such Distribution Date
pursuant to Section 2.02 or 2.03A(b) or which was
purchased pursuant to Section 3.19; and
(v) the Senior Prepayment Percentage of the Non-PO
Percentage of the excess, if any, of the Scheduled
Principal Balance of a XXX that has been replaced by the
Seller or a prior transferor of such XXX with a
Substitute XXX pursuant to Section 2.04 on such
Distribution Date over the Scheduled Principal Balance of
such Substitute XXX.
Senior Percentage: Initially ______ %. On any
Distribution Date, the lesser of (i) 100% and (ii) the percentage (carried
to six places rounded up) obtained by dividing the aggregate Current
Principal Amounts of all the Senior P&I Certificates immediately preceding
such Distribution Date by the aggregate Scheduled Principal Balance of the
XXXx (other than the PO Percentage thereof) as of the beginning of the
related Due Period.
Senior Prepayment Percentage: On any Distribution Date
occurring during the periods set forth below, as follows:
Period (dates inclusive) Senior Prepayment Percentage
____________, 1999 - 100%
___________, 200_
____________, 200_ - Senior Percentage plus 70% of the
___________, 200_ Subordinate Percentage
____________, 200_ - Senior Percentage plus 60% of the
___________, 200_ Subordinate Percentage
____________, 200_ - Senior Percentage plus 40% of the
___________, 200_ Subordinate Percentage
____________, 200_ - Senior Percentage plus 20% of the
___________, 200_ Subordinate Percentage
____________, 200_ and thereafter Senior Percentage.
(i) the Subordinate Prepayment Percentage of the
Non-PO Percentage of the sum of (a) the Scheduled
Principal Balance of each XXX which was purchased by the
Seller or a prior transferor of such XXX on such
Distribution Date pursuant to Section 2.02 or 2.03A(b) or
which was purchased pursuant to Section 3.19 and (b) the
difference, if any, between the Scheduled Principal
Balance of a XXX that has been replaced by the Seller or
a prior transferor of such XXX with a substitute XXX
pursuant to Section 2.04 on such Distribution Date over
the Scheduled Principal Balance of such substitute XXX;
and
(ii) on the Distribution Date on which the Current
Principal Amounts of the Senior P&I Certificates have all
been reduced to zero, 100% of any Senior P&I Optimal
Principal Amount.
Servicing Account: The separate account(s) created and
maintained by the Master Servicer or each Sub-Servicer with respect to the
XXXx or with respect to REO Property in a Designated Depository Institution
for collection of taxes, assessments, insurance premiums and comparable
items as described in Section 3.07.
Servicing Advances: All reasonable and customary "out of
pocket" costs and expenses incurred in the performance by the Master
Servicer or any Sub-Servicer of its servicing obligations, including, but
not limited to, the cost of (i) the preservation, restoration and
protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation
of the REO Property, including reasonable fees paid to any independent
contractor in connection therewith, (iv) compliance with the obligations
under Section 3.07 or 3.10, and (v) in connection with the liquidation of a
XXX, expenditures relating to the purchase or maintenance of the first lien
on the Mortgaged Property pursuant to Section 3.12, all of which reasonable
and customary out-of-pocket costs and expenses are reimbursable to the
Master Servicer or any Sub-Servicer to the extent provided in Sections
4.02(b) and 4.03(b).
Servicing Officer: Any officer of the Master Servicer or
of an agent or independent contractor through which all or part of the
Master Servicer's master servicing responsibilities are carried out,
involved in, or responsible for, the administration and servicing of the
XXXx whose name and specimen signature appear on a list of servicing
officers furnished to the Trustee by the Master Servicer as such list may
from time to time be amended in accordance with the foregoing.
Startup Day: __________ __, 2000.
Stated Interest Rate: The annual rate at which interest
accrues from time to time on any XXX pursuant to the related Mortgage Note,
which rate as of the Cut-off Date is equal to the "Stated Interest Rate"
set forth with respect thereto on the XXX Schedule.
Subordinate Prepayment Percentage: On any Distribution
Date, 100% minus the Senior Prepayment Percentage, except that on any
Distribution Date after the Current Principal Amounts of the Senior
Certificates have each been reduced to zero, the Subordinate Prepayment
Percentage will equal 100%.
Subordinate Certificate Writedown Amount: As to any
Distribution Date, the amount by which (a) the sum of the Current Principal
Amounts of all of the Certificates (after giving effect to the distribution
of principal and the allocation of applicable Realized Losses and any
applicable Class PO Deferred Payment Writedown Amount in reduction of the
Current Principal Amounts of such Certificates on such Distribution Date)
exceeds (b) the aggregate Scheduled Principal Balances of the XXXx on the
Due Date related to such Distribution Date.
Subordinate Optimal Principal Amount: As to any
Distribution Date, an amount equal to the sum, without duplication, of the
following (but in no event greater than the aggregate Current Principal
Amounts of the Subordinate Certificates immediately prior to such
Distribution Date):
(i) the Subordinate Percentage of the Non-PO
Percentage of the principal portion of all Monthly
Payments due on each Outstanding XXX on the related Due
Date, as specified in the amortization schedule at the
time applicable thereto (after adjustment for previous
Principal Prepayments but before any adjustment to such
amortization schedule by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or
grace period);
(ii) the Subordinate Prepayment Percentage of the
Non-PO Percentage of each Voluntary Principal Payment in
part during the related Prepayment Period with respect to
each XXX and the Subordinate Prepayment Percentage of the
Non-PO Percentage of the Scheduled Principal Balance of
each XXX that was the subject of a Voluntary Principal
Prepayment in full during the related Prepayment Period;
(iii) the excess, if any, of the Non-PO Percentage
of (A) all Net Liquidation Proceeds allocable to
principal received during the related Prepayment Period
over (B) the sum of the amounts distributable pursuant to
clause (iii) of the definition of Senior P&I Optimal
Principal Amount and clause (iv) of the definition of the
Class PO Distribution Amount on such Distribution Date;
Substitute XXX: A XXX tendered to the Trustee pursuant to
Section 2.04, in each case, in the opinion of the Master Servicer, (i)
which has an Outstanding Principal Balance not materially greater nor
materially less than the XXX for which it is to be substituted; (ii) which
has a Stated Interest Rate and Remittance Rate within 25 basis points of
the XXX for which it is being substituted; (iii) which has a maturity date
not greater than and not more than one year less than that of the XXX for
which it is being substituted and not later than the latest maturity date
of any XXX; (iv) which is of the same property type and occupancy type as
such XXX; (v) which has a Loan-to-Value Ratio within 10 basis points of the
Loan-to-Value Ratio of the XXX for which it is being substituted ; (vi)
which is current in payment of principal and interest as of the date of
substitution; (vii) as to which the payment terms do not vary in any
material respect from the payment terms of the XXX for which it is to be
substituted and (viii) which has an Appreciation Share equal to the XXX for
which it is being substituted, and complies with the representations and
warranties of the Sale and Servicing Agreement.
Sub-Servicing Agreement: The written contract between the
Master Servicer and a Sub-Servicer and any successor Sub-Servicer relating
to servicing and administration of certain XXXx as provided in Section 3.02
Subordinate Percentage: On any Distribution Date, 100%
minus the Senior Percentage, initially [ ]%.
Uninsured Cause: Any cause of damage to a Mortgaged
Property or REO Property such that the complete restoration of such
Mortgaged Property or REO Property is not fully reimbursable by the hazard
insurance policies required to be maintained pursuant to Section 3.10,
without regard to whether or not such policy is maintained.
Voluntary Principal Prepayment: With respect to any
Distribution Date, any Principal Prepayment received from the related
Mortgagor on a XXX.
Sub-Servicer: Any Person with which the Master Servicer
has entered into a Sub-Servicing Agreement and which meets the
qualifications of a Sub-Servicer pursuant to Section 3.02.
Trustee's Fees: With respect to each Distribution Date,
the amount to be paid to the Trustee calculated monthly on a XXX by XXX
basis, equal to, with respect to all XXXx, the product of (x) the Scheduled
Principal Balance of the XXXx on the Due Date in the month prior to the
month of such Distribution Date and (y) one-twelfth of [ ]%.
Tax Matters Person: The Holder of the Class R Certificate
as more particularly set forth in Section 9.13 hereof.
Trust Fund or Trust: The trust created by this Agreement,
consisting of the XXXx and the other assets described in Section 2.01(a).
Trustee: ____________________ or its successor in
interest, or any successor trustee appointed as herein provided.
After the aggregate current Principal Amounts of the Subordinate
Certificates have been reduced to zero, the Subordinate Optimal Principal
Amount shall be zero.
In addition, no reduction of the Senior Prepayment Percentage shall
occur on any Distribution Date unless, as of the last day of the month
preceding such Distribution Date, either (A) (i)(x) the aggregate Scheduled
Principal Balance of XXXx delinquent 60 days or more (including for this
purpose any such XXXx in foreclosure and such XXXx with respect to which
the related Mortgaged Property has been acquired by the Trust), averaged
over the last six months, as a percentage of the sum of the aggregate
Current Principal Amount of the Subordinate Certificates does not exceed [
]% or (y) the aggregate Scheduled Principal Balance of XXXx delinquent 60
days or more (including for this purpose any such XXXx in foreclosure and
XXXx with respect to which the related Mortgaged Property has been acquired
by the Trust), averaged over the last six months, as a percentage of the
aggregate Scheduled Principal Balances of the XXXx averaged over the last
six months, does not exceed [ ]; and (ii) cumulative Realized Losses on
such XXXx do not exceed (a) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including __________
200_ and ___________ 200_, (b) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including ___________
200_ and __________ 200_, (c) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including ___________
200_ and __________ 200_, (d) [ ] of the Original Subordinate Principal
Balance for such Certificate Group if such Distribution Date occurs between
and including ___________ 200_ and _________ 200_, and (e) [ ] of the
Original Subordinate Principal Balance for such Certificate Group if such
Distribution Date occurs during or after ____________ 200_; or (B) (i) the
aggregate Scheduled Principal Balance of XXXx delinquent 60 days or more
(including for this purpose any such XXXx in foreclosure and XXXx with
respect to which the related Mortgaged Property has been acquired by the
Trust), averaged over the last six months, does not exceed [ ]; and (ii)
cumulative Realized Losses on such XXXx do not exceed (a) [ ] of the
aggregate Current Principal Amounts of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including ____________
200_ and ___________ 200_, (b) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including _________
200_ and ___________ 200_, (c) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including ____________
200_ and ____________ 200_, (d) [ ] of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including ____________
200_ and ____________ 200_, and (e) [ ] of the Original Subordinate
Principal Balance if such Distribution Date occurs during or after
___________ 200_.
Notwithstanding the foregoing, if on any Distribution Date the Senior
Percentage exceeds the Senior Percentage as of the Cut-Off Date, the Senior
Prepayment Percentage for such Distribution Date will equal 100%. On the
Distribution Date on which the Current Principal Amounts of the Senior
Certificates are reduced to zero, the Senior Prepayment Percentage shall be
the minimum percentage sufficient to effect such reduction and thereafter
shall be zero.
provided, however, that no instrument or security shall be a
Permitted Investment if such instrument or security evidences a right to
receive only interest payments with respect to the obligations underlying
such instrument or if such security provides for payment of both principal
and interest with a yield to maturity in excess of 120% of the yield to
maturity at par or if such instrument or security is purchased at a price
greater than par.
ARTICLE II
Conveyance of XXXx;
Original Issuance of Certificates
Section 2.01 Conveyance of XXXx to Trustee. (a) The
Seller concurrently with the execution and delivery of this Agreement,
sells, transfers and assigns to the Trust without recourse all its right,
title and interest in and to (i) the XXXx identified in the XXX Schedule,
including all interest and principal due with respect to the XXXx after the
Cut-off Date, but excluding any payments of principal and interest due on
or prior to the Cut-off Date; (ii) such assets as shall from time to time
be credited or are required by the terms of this Agreement to be credited
to the Distribution Account (excluding any income to the Master Servicer
from Permitted Investments under Subsection 4.02(d)), (iii) such assets
relating to the XXXx as from time to time may be held by the Master
Servicer or a Sub-Servicer in Collection Accounts (excluding any income to
the Master Servicer or any Sub-Servicer from Permitted Investments under
Subsection 4.01(a)), (iv) any Servicing Accounts (to the extent the
mortgagee has a claim thereto and excluding any income to the Master
Servicer or Sub-Servicer or interest payable to Mortgagors pursuant to
applicable law), (v) any REO Property, (vi) the Required Insurance Policies
and any amounts paid or payable by the insurer under any Insurance Policy
(to the extent the mortgagee has a claim thereto), (vii) [Reserved] and
(viii) any proceeds of the foregoing. Although it is the intent of the
parties to this Agreement that the conveyance of the Seller's right, title
and interest in and to the XXXx and other assets in the Trust Fund pursuant
to this Agreement shall constitute a purchase and sale and not a loan, in
the event that such conveyance is deemed to be a loan, it is the intent of
the parties to this Agreement that the Seller shall be deemed to have
granted to the Trustee a first priority perfected security interest in all
of the Seller's right, title and interest in, to and under the XXXx and
other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the
Seller hereby deposits with the Trustee, with respect to each
XXX, (i) the original Mortgage Note, endorsed without recourse
to the order of the Trustee and showing an unbroken chain of
endorsements from the original payee thereof to the Person
endorsing it to the Trustee, (ii) the original Security
Instrument, which shall have been recorded, with evidence of
such recording indicated thereon, (iii) the assignment (which
may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the
Trustee of the Security Instrument, with evidence of recording
with respect to each XXX in the name of the Trustee thereon
(or, if clause (x) in the provision below applies, shall be in
recordable form), (iv) all intervening assignments of the
Security Instrument, if applicable and only to the extent
available to the Seller with evidence of recording thereon, (v)
the original of any guarantee executed in connection with the
Mortgage Note, (vi) the original policy of title insurance or
mortgagee's certificate of title insurance or commitment or
binder for title insurance and (vii) originals of all
assumption, modification, consolidation or extension
agreements, if applicable and available; (viii) the original
Mortgage with evidence of recording thereon, and the original
recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording
thereon; (ix) any rider executed in connection with the related
Mortgage Note or Mortgage; (x) the Primary Mortgage Insurance
Policy or certificate of insurance where required pursuant to
the related Sale and Servicing Agreements; and (xi) XXX closing
statement (Form HUD-1) and any other truth- in-lending or real
estate settlement procedure form required by law; provided,
however, that in lieu of the foregoing, the Seller may deliver
the following documents, under the circumstances set forth
below: (xii) in lieu of the original Security Instrument,
assignments to the Trustee or intervening assignments thereof
which have been delivered are being delivered or will, upon
receipt of recording information relating to the Security
Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to
the Seller in time to permit their delivery as specified above,
the Seller may deliver a true copy thereof with a certification
by the Seller, a prior transferor or an officer of the title
insurer on the face of such copy, substantially as follows:
"Certified to be a true and correct copy of the original, which
has been transmitted for recording"; and (y) in lieu of the
Security Instrument, assignment to the Trustee, or intervening
assignments thereof if the applicable jurisdiction retains the
originals of such documents (as evidenced by a certification
from the Seller, a prior transferor or an officer of the title
insurer to such effect) the Seller may deliver photocopies of
such documents containing an original certification by the
judicial or other governmental authority of the jurisdiction
where such documents were recorded; and provided, further,
however, that in the case of XXXx which have been prepaid in
full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver
to the Trustee a certification of a Servicing Officer to such
effect and shall deposit all amounts paid in respect of such
XXXx in the Distribution Account on the Closing Date. The
Seller shall deliver such original documents (including any
original documents as to which certified copies had previously
been delivered) to the Trustee promptly after they are
received. The Seller shall cause, at its expense, the Security
Instrument and intervening assignments, if any, and the
assignment of the Security Instrument to the Trustee to be
recorded not later than 180 days after the Closing Date.
Section 2.02 Acceptance of XXXx by Trustee. (a) The
Trustee acknowledges receipt of, subject to its further review and the
exceptions which may be noted pursuant to the procedures described below,
the documents (or certified copies thereof) delivered to it pursuant to
Section 2.01 and declares that it holds and will continue to hold those
documents and any amendments, replacements or supplements thereto and all
other assets of the Trust Fund delivered to it as Trustee in trust for the
use and benefit of all present and future Holders of the Certificates. No
later than 45 days after the Closing Date (or, with respect to any
Substitute XXX, within 5 Business Days after the receipt by the Trustee
thereof), the Trustee agrees, for the benefit of the Certificateholders, to
review each Mortgage File delivered to it and to execute and deliver, or
cause to be executed and delivered, to the Seller and the Master Servicer
an Initial Certification substantially in the form annexed hereto as
Exhibit G. In conducting such review, the Trustee will ascertain whether
all required documents have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the XXXx it has received, as
identified in Exhibit B to this Agreement, as supplemented; provided,
however, that with respect to those documents described in subclause
(b)(iv), (v) and (vi) of Section 2.01, the Trustee's obligations shall
extend only to documents actually delivered pursuant to such subsections.
In performing any such review, the Trustee may conclusively rely on the
purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If the Trustee finds any
document constituting part of the Mortgage File not to have been executed
or received, or to be unrelated to the XXXx identified in Exhibit B or to
appear to be defective on its face, the Trustee shall promptly notify the
Seller. The Seller shall correct or cure (or shall cause a prior transferor
of the XXX to correct or cure) any such defect within 90 days from the date
of notice from the Trustee of the defect and if such defect is not
corrected or cured within such period, and such defect materially and
adversely affects the interests of the Certificateholders in the related
XXX, the Seller will, subject to Section 2.04, within 90 days from the
Trustee's notification purchase (or cause a prior transferor of such XXX to
purchase) such XXX at the Repurchase Price; provided, however, that if such
defect relates solely to the inability of the Seller to deliver the
original Security Instrument or intervening assignments thereof, or a
certified copy because the originals of such documents, or a certified copy
have not been returned by the applicable jurisdiction, the Seller shall not
be required to purchase such XXX if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later
than 270 days after the Closing Date. The foregoing repurchase obligation
shall not apply in the event that the Seller cannot deliver such original
or copy of any document submitted for recording to the appropriate
recording office in the applicable jurisdiction because such document has
not been returned by such office; provided that the Seller shall instead
deliver (or cause a prior transferor of the XXX to deliver) a recording
receipt of such recording office or, if such receipt is not available, a
certificate of a Servicing Officer confirming that such documents have been
accepted for recording, and delivery to the Trustee shall be effected by
the Seller (or a prior transferor of the XXX) within thirty days of receipt
of the original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee will
review, for the benefit of the Certificateholders, the Mortgage
Files delivered to it and will execute and deliver or cause to
be executed and delivered to the Seller and the Master
Servicer, a Final Certification substantially in the form
annexed hereto as Exhibit H. In conducting such review, the
Trustee will ascertain whether an original of each document
required to be recorded has been returned from the recording
office with evidence of recording thereon or a certified copy
has been obtained from the recording office. If the Trustee
finds any document constituting part of the Mortgage File has
not been received, or to be unrelated, determined on the basis
of the Mortgagor name, original principal balance and loan
number, to the XXXx identified in Exhibit B or to appear
defective on its face, the Trustee shall promptly notify the
Seller (provided, however, that (i) with respect to those
documents described in subclause (b)(iv), (v) and (vi) of
Section 2.01, the Trustee's obligations shall extend only to
documents actually delivered pursuant to such subsections. The
Seller shall correct or cure (or shall cause a prior transferor
of the XXX to correct or cure) any such defect or shall deliver
to the Trustee an Opinion of Counsel to the effect that such
defect does not materially or adversely affect the interests of
Certificateholders in such XXX within 90 days from the date of
notice from the Trustee of the defect and if such defect is not
corrected or cured within such period, and if such defect
materially and adversely affects the interests of the
Certificateholders in the related XXX, the Seller will, subject
to Section 2.04, within 90 days from the Trustee's notification
purchase (or cause a prior transferor of the XXX to Purchase)
such XXX at the Repurchase Price; provided, however, that if
such defect relates solely to the inability of the Seller to
deliver the original Security Instrument or intervening
assignments thereof, or a certified copy, because the originals
of such documents, or a certified copy, have not been returned
by the applicable jurisdiction, the Seller shall not be
required to purchase such XXX, if the Seller delivers such
original documents or certified copy promptly upon receipt, but
in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event
that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording
office in the applicable jurisdiction because such document has
not been returned by such office; provided that the Seller
shall instead deliver (or cause a prior transferor of the XXX
to deliver) a recording receipt of such recording office or, if
such receipt is not available, a certificate of a Servicing
Officer confirming that such documents have been accepted for
recording, and delivery to the Trustee shall be effected by the
Seller (or a prior transferor of the XXX) within thirty days of
receipt of the original recorded document.
(c) In the event that a XXX is purchased in accordance with
Subsections 2.02(a) or (b) above, the Seller shall provide or
cause to be provided the Repurchase Price to the Trustee for
deposit in the Distribution Account and shall provide or cause
to be provided to the Trustee written notification detailing
the components of the Repurchase Price, on or prior to the
related Determination Date. Upon deposit of the Repurchase
Price in the Distribution Account, the Trustee shall release to
the purchaser the related Mortgage File and shall execute and
deliver all instruments of transfer or assignment, without
recourse, furnished to it by the purchaser as are necessary to
vest in the purchaser title to and rights under the XXX. Such
purchase shall be deemed to have occurred on the date on which
the Repurchase Price in available funds is received by the
Trustee. The Trustee shall amend the XXX Schedule to reflect
such repurchase and shall promptly notify the Master Servicer
and the Rating Agencies of such amendment. The obligation of
the Seller to repurchase (or cause the repurchase of) any XXX
as to which such a defect in a constituent document exists
shall be the sole remedy respecting such defect available to
the Certificateholders or to the Trustee on their behalf.
Section 2.03 Representations, Warranties and Covenants of
the Master Servicer.
(a) _______ hereby represents and warrants to the Trustee as of the
Closing Date that:
(i) It is a corporation duly organized, validly
existing and in good standing under the laws of the state
of its incorporation and is in good standing as a foreign
corporation in each jurisdiction where such qualification
is necessary and throughout the term of this Agreement
will remain a corporation duly organized, validly
existing and in good standing under the laws of the state
of its incorporation or any state of reincorporation and
in good standing as a foreign corporation in each
jurisdiction where such qualification is necessary
(except, in the case of foreign corporation qualification
both on the date hereof and in the future, where the
failure so to qualify would not reasonably be expected to
have a material adverse effect on the Master Servicer's
ability to enter into this Agreement or to perform its
obligations hereunder), and has the corporate power and
authority to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement
have been duly authorized by all requisite corporate
action;
(iii) This Agreement, assuming due authorization,
execution, and delivery by the other parties hereto, will
constitute its legal, valid and binding obligation,
enforceable in accordance with its terms, except only as
such enforcement may be limited by applicable Debtor
Relief Laws and that certain equitable remedies may not
be available regardless of whether enforcement is sought
in equity or at law;
(iv) Its execution and delivery of this Agreement
and its performance and compliance with the terms of this
Agreement will not (A) violate its certificate of
incorporation or bylaws (B) to its knowledge, violate any
law or regulation, or any administrative or judicial
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 it is a party or which may
be applicable to it or any of its assets;
(v) To its best knowledge, after reasonable
investigation, it is not in default with respect to any
order or decree of any court or any order, regulation or
demand of any federal, state, municipal or governmental
agency, which default would reasonably be expected to
have consequences that would materially and adversely
affect its financial condition or operations or its
performance hereunder;
(vi) It does not believe, nor does it have any
reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement to be
performed by it;
(vii) The consummation of the transactions
contemplated by this Agreement are in the ordinary course
of its business;
(viii) No litigation is pending or, to its best
knowledge, threatened against it, which could be
reasonably expected to materially and adversely affect
its entering into this Agreement or performing its
obligations under this Agreement or which would have a
material adverse effect on its financial condition; and
(ix) Its computer programs, systems and
applications used in servicing the XXXx will be replaced
or modified and maintained to operate in such manner that
at all times, including on and after January 1, 2000, it
can service the XXXx in accordance with the terms of this
Agreement.
Section 2.03A. Representations, Warranties and Covenants
of the Seller.
(a) The Seller hereby makes the representations and warranties to
the Trustee set forth in Exhibit C hereto regarding the XXXx.
(b) If the Seller, the Master Servicer or the Trustee discovers a
breach of any of the representations and warranties set forth
in Exhibit C, and such breach existed on the date the
representation and warranty was made, which breach materially
and adversely affects the value of the interests of
Certificateholders or the Trustee in the related XXXx, the
party discovering the breach shall give prompt written notice
of the breach to the other parties. The Seller within 90 days
of its discovery or receipt of notice that such breach has
occurred (whichever occurs earlier), shall (or shall cause a
prior transferor of the XXX to) cure the breach in all material
respects or, subject to Section 2.04, purchase the XXX or any
property acquired with respect thereto from the Trustee;
provided, however, that if there is a breach of any
representation set forth in Exhibit C and the XXX or the
related property acquired with respect thereto has been sold,
then the purchaser shall pay, in lieu of the Repurchase Price,
any excess of the Repurchase Price over the Net Liquidation
Proceeds received upon such sale. (If the Net Liquidation
Proceeds exceed the Repurchase Price, any excess shall be paid
to the purchaser to the extent not required by law to be paid
to the borrower.) Any such purchase shall be made by the
purchaser providing (or causing to be provided) to the Trustee
an amount equal to the Repurchase Price for deposit in the
Distribution Account and the Trustee, upon receipt of the
Repurchase Price and of written notification, on or prior to
the related Determination Date, which notification shall detail
the components of such Repurchase Price, shall release to the
purchaser the related Mortgage File and shall execute and
deliver all instruments of transfer or assignment furnished to
it by the purchaser, without recourse, as are necessary to vest
in the purchaser title to and rights under the XXX or any
property acquired with respect thereto. Such purchase shall be
deemed to have occurred on the date on which the Repurchase
Price in available funds is received by the Trustee. The
Trustee shall amend the XXX Schedule to reflect such repurchase
and shall promptly notify the Master Servicer and the Rating
Agencies of such amendment. Enforcement of the obligation of
the Seller to purchase or substitute a Substitute XXX for (or
to cause the purchase or substitution for) any XXX or any
property acquired with respect thereto (or pay (or cause the
payment of) the Repurchase Price as set forth in the above
proviso) as to which a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach
available to the Certificateholders or the Trustee on their
behalf.
Section 2.04 Substitution of XXXx. Notwithstanding
anything to the contrary in this Agreement, in lieu of purchasing a XXX
pursuant to Sections 2.02 or 2.03A, the Seller may, no later than the date
by which such purchase would otherwise be required, tender (or cause the
tender) to the Trustee a Substitute XXX accompanied by an Officer's
Certificate of the Seller that such Substitute XXX conforms to the
requirements set forth in the definition of "Substitute XXX"; provided,
however, that substitution pursuant to this Section 2.04 in lieu of
purchase shall not be permitted after the termination of the two-year
period beginning on the Startup Day. The Trustee shall examine the Mortgage
File for any Substitute XXX in the manner set forth in Section 2.02(a) and
shall notify the Master Servicer and the Seller in writing, within five
Business Days after receipt, whether or not the documents relating to the
Substitute XXX satisfy the requirements of the third sentence of Subsection
2.02(a). Within two Business Days after such notification, the Seller shall
provide (or cause to be provided) to the Trustee for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the XXX for which substitution
is being made, after giving effect to Scheduled Principal due on such date,
exceeds the Outstanding Principal Balance as of such date of the Substitute
XXX, after giving effect to Scheduled Principal due on such date, which
amount shall be treated for the purposes of this Agreement as if it were
the payment of a portion of the Repurchase Price for the purchase of a XXX.
After such notification, and, if any such excess exists, upon receipt of
such deposit, the Trustee shall accept such Substitute XXX. In the event of
such a substitution, accrued interest on the Substitute XXX for the month
in which the substitution occurs and any Principal Prepayments made thereon
during such month shall be the property of the Trust Fund and accrued
interest for such month on the XXX for which the substitution is made and
any Principal Prepayments made thereon during such month shall be the
property of the Seller (or other transferor). The Scheduled Principal on a
Substitute XXX due on the Due Date in the month of substitution shall be
the property of the Seller (or other transferor) and the Scheduled
Principal on the XXX for which the substitution is made due on such Due
Date shall be the property of the Trust Fund. Upon acceptance of the
Substitute XXX, the Trustee shall release to the Seller (or other
transferor) the Mortgage File related to any XXX released pursuant to this
Section 2.04 and shall execute and deliver all instruments of transfer or
assignment, without recourse, in form as provided to it as are necessary to
vest in the Seller (or other transferor) title to and rights under any XXX
released pursuant to this Section 2.04. The Seller (or other transferor)
shall deliver the documents related to the Substitute XXX in accordance
with the provisions of Subsections 2.01(b) and 2.02(b), with the date of
acceptance of the Substitute XXX deemed to be the Closing Date for purposes
of the time periods set forth in those Subsections. The representations and
warranties set forth in Exhibit C shall be deemed to have been made by the
Seller with respect to each Substitute XXX as of the date of acceptance of
such XXX by the Trustee. The Trustee shall amend the XXX Schedule to
reflect such substitution and shall provide a copy of such amended XXX
Schedule to the Master Servicer and the Rating Agencies.
Section 2.05 Representations and Warranties of the
Trustee. The Trustee hereby represents and warrants to the Seller and the
Master Servicer, as of the Closing Date (and in the case of paragraphs (iv)
and (v) below throughout the term of the Agreement), that:
(i) The Trustee is a __________ banking association
duly organized, validly existing and in good standing
under the laws of the United States with a principal
place of business in ______________;
(ii) Subject to the right of the Trustee to appoint
a co-trustee or separate trustee under Section 9.11
hereof in order to meet the legal requirements of a
particular jurisdiction, the Trustee has full power,
authority and legal right to execute and deliver this
Agreement and to perform its obligations under this
Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of this
Agreement and the Certificates;
(iii) To the best of the Trustee's knowledge, after
reasonable investigation, the execution and delivery by
the Trustee of this Agreement and the Certificates and
the performance by the Trustee of its obligations under
this Agreement and the Certificates will not violate any
provision of the Trustee's Articles of Association or
By-Laws or any law or regulation governing the Trustee or
any order, writ, judgment or decree of any court,
arbitrator or governmental authority or agency applicable
to the Trustee or any of its assets. To the best of the
Trustee's knowledge, after reasonable investigation, such
execution, delivery and performance will not require the
authorization, consent or approval of, the giving of
notice to, the filing or registration with, or the taking
of any other action with respect to, any governmental
authority or agency regulating the activities of a
national association located in ___________. To the best
of the Trustee's knowledge, after reasonable
investigation, such execution, delivery and performance
will not conflict with, or result in a breach or
violation of, any material indenture, mortgage, deed of
trust, lease or other agreement or instrument to which
the Trustee is a party or by which it or its properties
is bound;
(iv) This Agreement has been duly executed and
delivered by the Trustee. This Agreement, when executed
and delivered, will constitute the valid, legal and
binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms, except as the
enforcement thereof may be limited by applicable Debtor
Relief Laws and that certain equitable remedies may not
be available regardless of whether enforcement is sought
in equity or at law;
(v) All funds received by the Trustee and required
to be deposited in the Distribution Account pursuant to
this Agreement will be promptly so deposited; and
(vi) The Trustee shall modify and/or maintain its
internal computer systems and its other internal systems
used in performing its duties and obligations under this
Agreement to assure that the Trustee can perform its
duties and obligations in accordance with the terms of
this Agreement, including, without limitation, on and
after January 1, 2000; provided, however, that neither
this covenant or any other term or condition of this
Agreement shall be deemed to render the Trustee directly
or indirectly liable for: (a) any failure by the Master
Servicer or any other third party (including any failure
to deliver timely and accurate information to the Trustee
at all times) or the inability of the Trustee to perform
any of its duties hereunder by reason of any such
failure, (b) any other act or omission by the Master
Servicer or any other third party relating to the Master
Servicer's or other third party's maintenance or
modification of its systems required to perform any of
its duties under or relating to this Agreement, (c) any
incompatibility of the Trustee's internal systems with
the Master Servicer's or any third party's systems, and
(d) the inability of the Trustee to perform any of its
duties hereunder by reason of any failure or disruption
of telecommunications, electrical or other utility
services furnished to the Trustee by third parties, it
being expressly understood and agreed that the Trustee
shall be responsible only for its own internal systems
and shall not be required to monitor, review or audit any
third party's systems, plans, or preparations in order to
ascertain whether such third party is capable of
performing its duties under or relating to this
Agreement.
Section 2.06 Issuance of Certificates. The Trustee
acknowledges the assignment to it of the XXXx and the other assets
comprising the Trust Fund and, concurrently therewith, has signed, and
countersigned and delivered to the Seller, in exchange therefor,
Certificates in such authorized denominations representing such Fractional
Undivided Interests as the Seller has requested. The Trustee agrees that it
will hold the XXXx and such other assets segregated on the books of the
Trustee in trust for the benefit of the Certificateholders.
Section 2.07 Representations and Warranties Concerning
the Seller. The Seller hereby represents and warrants to the Trustee and
the Master Servicer as follows:
(i) the Seller (a) is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Delaware and (b) is qualified and in good
standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary,
except where the failure so to qualify would not
reasonably be expected to have a material adverse effect
on the Seller's business as presently conducted or on the
Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Seller has full corporate power to own its
property, to carry on its business as presently conducted
and to enter into and perform its obligations under this
Agreement;
(iii) the execution and delivery by the Seller of
this Agreement have been duly authorized by all necessary
corporate action on the part of the Seller; and 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
Seller or its properties or the articles of incorporation
or by-laws of the Seller, except those conflicts,
breaches or defaults which would not reasonably be
expected to have a material adverse effect on the
Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the
Seller 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 those consents, approvals,
notices, registrations or other actions as have already
been obtained, given or made;
(v) this Agreement has been duly executed and
delivered by the Seller and, assuming due authorization,
execution and delivery by the other parties hereto,
constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of the
rights of creditors generally); and
(vi) there are no actions, suits or proceedings
pending or, to the knowledge of the Seller, threatened
against the Seller, before or by any court,
administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated
by this Agreement or (ii) with respect to any other
matter which in the judgment of the Seller will be
determined adversely to the Seller and will if determined
adversely to the Seller materially and adversely affect
the Seller's ability to enter into this Agreement or
perform its obligations under this Agreement; and the
Seller is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental
body so as to materially and adversely affect the
transactions contemplated by this Agreement.
ARTICLE III
Administration and Servicing of XXXx
Section 3.01 Master Servicer to Assure Servicing.
(a) The Master Servicer shall supervise, or take such actions as
are necessary to ensure, the servicing and administration of
the XXXx and any REO Property in accordance with this Agreement
and its normal servicing practices (including making any
Servicing Advances), which generally conform to the standards
of an institution prudently servicing shared appreciation
mortgage loans for its own account and shall have full
authority to do anything it reasonably deems appropriate or
desirable in connection with such servicing and administration.
The Master Servicer may perform its responsibilities relating
to servicing through other agents or independent contractors,
but shall not thereby be released from any of its
responsibilities as hereinafter set forth. The authority of the
Master Servicer, in its capacity as master servicer, shall
include, without limitation, the power to (i) consult with and
advise any Sub-Servicer regarding administration of a related
XXX, (ii) approve any recommendation by a Sub-Servicer to
foreclose on a related XXX, (iii) supervise the filing and
collection of insurance claims and take or cause to be taken
such actions on behalf of the insured person thereunder as
shall be reasonably necessary to prevent the denial of coverage
thereunder, and (iv) effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing a related
XXX, including the employment of attorneys, the institution of
legal proceedings, the collection of deficiency judgments, the
acceptance of compromise proposals, the filing of claims under
any Primary Mortgage Insurance Policy and any other matter
pertaining to a delinquent XXX. The authority of the Master
Servicer shall include, in addition, the power on behalf of the
Certificateholders, the Trustee or any of them to (i) execute
and deliver customary consents or waivers and other instruments
and documents, (ii) consent to transfers of any related
Mortgaged Property and assumptions of the related Mortgage
Notes and Security Instruments (in the manner provided in this
Agreement) and (iii) collect any Insurance Proceeds and
Liquidation Proceeds. Without limiting the generality of the
foregoing, the Master Servicer may, and is hereby authorized,
and empowered by the Trustee to, execute and deliver, on behalf
of itself, the Certificateholders, the Trustee, or any of them,
any instruments of satisfaction, cancellation, partial or full
release, discharge and all other comparable instruments, with
respect to the related XXXx, the Insurance Policies and the
accounts related thereto, and the Mortgaged Properties. The
Master Servicer may exercise this power in its own name or in
the name of a Sub-Servicer. (b) Notwithstanding the provisions
of Subsection 3.01(a), the Master Servicer shall not take any
action inconsistent with the interest of the Trustee or the
Certificateholders in the XXXx or with the rights and interests
of the Trustee or the Certificateholders under this Agreement.
(c) The Trustee shall furnish the Master Servicer with any powers
of attorney and other documents in form as provided to it
necessary or appropriate to enable the Master Servicer to
service and administer the related XXXx and REO Property.
Section 3.02 Sub-Servicing Agreements Between Master
Servicer and Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing Agreements
with Sub-Servicers for the servicing and administration of the
XXXx and for the performance of any and all other activities of
the Master Service hereunder, subject to the prior approval of
such Sub-Servicers by the Rating Agencies. Each Sub-Servicer
shall be either (i) an institution the accounts of which are
insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing shared appreciation
mortgage loans, and in either case shall be authorized to
transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to
the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the
Sub-Servicing Agreement, and in either case shall be a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Any Sub-Servicing
Agreement entered into by the Master Servicer shall include the
provision that such Agreement may be immediately terminated (x)
with cause and without any termination fee by any Master
Servicer hereunder other than [Master Servicer name] or (y)
without cause in which case the Master Servicer shall be
responsible for any termination fee or penalty resulting
therefrom. In addition, any Sub-Servicing Agreement shall
provide for servicing of the XXXx consistent with the terms of
this Agreement. With the consent of the Trustee, which consent
shall not be unreasonably withheld, the Master Servicer and the
Sub-Servicers may enter into Sub-Servicing Agreements and make
amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however,
that any such amendments or different forms shall be consistent
with and not violate the provisions of this Agreement, and that
no such amendment or different form shall be made or entered
into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders, without the
consent of the Holders of Certificates entitled to at least 51%
of the Fractional Undivided Interests of all the Certificates
in the aggregate.
(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Sub-
Servicer under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the
Master Servicer, in its good faith business judgment, would
require were it the owner of the related XXXx. The Master
Servicer shall pay the costs of such enforcement at its own
expense, but shall be reimbursed therefor only (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 XXXx or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against
whom such enforcement is directed.
Section 3.03 Successor Sub-Servicers. The Master Servicer
shall be entitled to terminate any Sub-Servicing Agreement that may exist
in accordance with the terms and conditions of such Sub-Servicing Agreement
and without any limitation by virtue of this Agreement; provided, however,
that upon termination, the Master Servicer shall either act as servicer of
the related XXX or enter into an appropriate contract with a successor
Sub-Servicer pursuant to which such successor Sub-Servicer will be bound by
all relevant terms of the related Sub-Servicing Agreement pertaining to the
servicing of such XXX.
Section 3.04 Liability of the Master Servicer.
(a) Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or
arrangements between the Master Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise,
the Master Servicer shall under all circumstances remain
obligated and primarily liable to the Trustee and the
Certificateholders for the servicing and administering of the
XXXx and any REO Property in accordance with this Agreement.
The obligations and liability of the Master Servicer shall not
be diminished by virtue of Sub-Servicing Agreements or by
virtue of indemnification of the Master Servicer by any
Sub-Servicer, or any other Person. The obligations and
liability of the Master Servicer shall remain of the same
nature and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the related
XXXx. The Master Servicer shall, however, be entitled to enter
into indemnification agreements with any Sub-Servicer or other
Person and nothing in this Agreement shall be deemed to limit
or modify such indemnification. For the purposes of this
Agreement, the Master Servicer shall be deemed to have received
any payment on a XXX on the date the Sub-Servicer received such
payment; provided, however, that this sentence shall not apply
to the Trustee acting as the Master Servicer; provided,
further, however, that the foregoing provision shall not affect
the obligation of the Master Servicer if it is also the Trustee
to advance amounts which are not Nonrecoverable Advances.
(b) Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the XXXx involving a
Sub-Servicer in its capacity as such and not as an originator
shall be deemed to be between the Sub-Servicer and the Master
Servicer alone, and the Trustee and Certificateholders shall
not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.05.
Section 3.05 Assumption or Termination of Sub-Servicing
Agreements by Trustee.
(a) If the Trustee or its designee shall assume the master
servicing obligations of the Master Servicer in accordance with
Section 8.02, the Trustee, to the extent necessary to permit
the Trustee to carry out the provisions of Section 8.02 with
respect to the XXXx, shall succeed to all of the rights and
obligations of the Master Servicer under each of the
Sub-Servicing Agreements. In such event, the Trustee or its
designee as the successor master servicer shall be deemed to
have assumed all of the Master Servicer's rights and
obligations therein and to have replaced the Master Servicer as
a party to such Sub-Servicing Agreements to the same extent as
if such Sub-Servicing Agreements had been assigned to the
Trustee or its designee as a successor master servicer, except
that the Trustee or its designee as a successor master servicer
shall not be deemed to have assumed any obligations or
liabilities of the Master Servicer arising prior to such
assumption and the Master Servicer shall not thereby be
relieved of any liability or obligations under such Sub-
Servicing Agreements.
(b) In the event that the Trustee or its designee as successor
master servicer for the Trustee assumes the servicing
obligations of the Master Servicer under Section 8.02, upon the
reasonable request of the Trustee or such designee as successor
master servicer, the Master Servicer shall at its own expense
deliver to the Trustee, or at its written request to such
designee, photocopies of all documents and records, electronic
or otherwise, relating to the Sub-Servicing Agreements and the
related XXXx or REO Property then being serviced and an
accounting of amounts collected and held by it, if any, and
will otherwise cooperate and use its reasonable best efforts to
effect the orderly and efficient transfer of the Sub-Servicing
Agreements, or responsibilities hereunder to the Trustee, or at
its written request to such designee as successor master
servicer.
(c) Upon assuming the role of Master Servicer the Trustee may elect
to terminate any Sub-Servicing Agreements entered into by the
preceding Master Servicer, in which case any termination fee or
penalty shall be paid by such preceding Master Servicer.
Section 3.06 Collection of XXX Payments.
(a) The Master Servicer will make remittances itself or will
coordinate and monitor remittances by Sub-Servicers to the
Trustee with respect to the XXXx in accordance with this
Agreement.
(b) The Master Servicer shall make its reasonable best efforts to
collect or cause to be collected all payments required under
the terms and provisions of the XXXx and shall follow, and use
its best efforts to cause Sub-Servicers to follow, collection
procedures comparable to the collection procedures of prudent
mortgage lenders servicing mortgage loans for their own account
to the extent such procedures shall be consistent with this
Agreement. Consistent with the foregoing, the Master Servicer
may in its discretion (i) waive or permit to be waived any late
payment charge, prepayment charge, assumption fee, or any
penalty interest in connection with the prepayment of a XXX and
(ii) suspend or temporarily reduce or permit to be suspended or
temporarily reduced regular monthly payments for a period of up
to six months, or arrange or permit an arrangement with a
Mortgagor for a scheduled liquidation of delinquencies. In the
event the Master Servicer shall consent to the deferment of the
due dates for payments due on a Mortgage Note, the Master
Servicer shall nonetheless make a Monthly Advance or shall
cause the related Sub-Servicer to make an advance to the same
extent as if such installment were due, owing and delinquent
and had not been deferred through liquidation of the Mortgaged
Property; provided, however, that the obligation of the Master
Servicer to make a Monthly Advance shall apply only to the
extent that the Master Servicer believes, in good faith, that
such advances are not Nonrecoverable Advances.
(c) Notwithstanding anything in this Agreement to the contrary, the
Master Servicer may not make any advances of amounts coming due
in the future with respect to a XXX and the Master Servicer
shall not (unless the Mortgagor is in default with respect to
the XXX or such default is, in the judgment of the Master
Servicer, reasonably foreseeable) permit (i) any modification
with respect to any XXX that would change the Stated Interest
Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or
change the final maturity date on such XXX or (ii) any
modification, waiver or amendment of any term of any XXX that
would both (A) effect an exchange or reissuance of such XXX
under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause the
Trust Fund to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or
"contributions after the startup date" under the REMIC
Provisions. Any extension of the final maturity date of any XXX
shall be calculated such that the XXX will be paid in full on
the reset final maturity date if the related Mortgagor
continues to make its then-current Scheduled Payments on a
timely basis.
(d) As soon as the Master Servicer has determined that all amounts
which it expects to recover from or on account of a XXX have
been recovered and that no further Liquidation Proceeds will be
received in connection therewith, the Master Servicer shall
provide to the Trustee, along with the next Loan Summary and
Remittance Report provided under Section 6.07(b), a certificate
of a Servicing Officer that such XXX became a Liquidated XXX.
Section 3.07 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
(a) The Master Servicer shall establish and maintain or cause the
Sub-Servicers to establish and maintain, in addition to the
Collection Accounts, one or more Servicing Accounts. The Master
Servicer or a Sub-Servicer will deposit and retain therein all
otherwise unapplied collections from the Mortgagors, including
amounts collected for the payment of taxes, assessments,
insurance premiums, or comparable items as agent of the
Mortgagors.
(b) The deposits in the Servicing Accounts shall be held in a
Designated Depository Institution in an account designated as a
"XXX Servicing Account," held in trust by the Master Servicer
or a Sub-Servicer as Trustee of Taxes and Insurance Custodial
Account for borrowers and for the Seller (and its successors
and assigns) acting on its own behalf and for the Seller as
agent for holders of various pass-through securities and other
interests in shared appreciation mortgage loans sold by it; and
agent for various mortgagors, as their interests may appear or
under such other designation as may be permitted by a
Sub-Servicing Agreement. The amount at any time credited to a
Servicing Account must be fully insured by the FDIC, or, to the
extent that such deposits exceed the limits of such insurance,
such excess must be (i) transferred to another fully insured
account in another Designated Depository Institution or (ii) if
permitted by applicable law, invested in Permitted Investments
held in trust by the Master Servicer or a Sub-Servicer as
described above and maturing, or be subject to redemption or
withdrawal, no later than the date on which such funds are
required to be withdrawn, and in no event later than 45 days
after the date of investment. The Master Servicer may, or may
permit a Sub- Servicer to, establish Servicing Accounts not
conforming to the foregoing requirements to the extent that
such Servicing Accounts are Rating Agency Eligible Accounts.
Withdrawals of amounts from the Servicing Accounts may be made
only to effect timely payment of taxes, assessments, insurance
premiums, or comparable items, to transfer previously unapplied
collections to a Collection Account, to reimburse the Master
Servicer or a Sub-Servicer for any advances made with respect
to such items, to refund to any Mortgagors any sums as may be
determined to be overages, to pay interest, if required, to
Mortgagors on balances in the Servicing Accounts or to clear
and terminate the Servicing Accounts at or any time after the
termination of this Agreement in accordance with Section 10.01.
Section 3.08 Access to Certain Documentation and
Information Regarding the XXXx. The Master Servicer shall provide, and
shall cause any Sub-Servicer to provide, to the Trustee and the Seller
access to the records and documentation regarding the related XXXx and REO
Property and the servicing thereof and to the Certificateholders, the FDIC,
and the supervisory agents and examiners of the FDIC (to which the Trustee
shall also provide) access to the documentation regarding the related XXXx
required by applicable regulations, such access being afforded without
charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer, the Sub-Servicers or
the Trustee that are designated by these entities; provided, however, that,
unless otherwise required by law, the Trustee, the Master Servicer or the
Sub-Servicer shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to
privacy of any Mortgagor provided, further, however, that the Trustee and
the Seller shall coordinate their requests for such access so as not to
impose an unreasonable burden on, or cause an interruption of, the business
of the Master Servicer or any Sub-Servicer. The Master Servicer, the Sub-
Servicers and the Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide
equipment for that purpose at a charge that covers their own actual
out-of-pocket costs.
Section 3.09 Maintenance of Primary Mortgage Insurance
Policies; Collection Thereunder. The Master Servicer shall, or shall cause
the related Sub-Servicer to, in accordance with applicable law, exercise
its best reasonable efforts to maintain and keep in full force and effect
each Primary Mortgage Insurance Policy by a Qualified Insurer, or other
insurer satisfactory to the Rating Agencies, with respect to each
conventional XXX as to which as of the Cut-off Date such a Primary Mortgage
Insurance Policy was in effect (or, in the case of a Substitute XXX, the
date of substitution) and the original principal amount of the related
Mortgage Note exceeded 80% of the Original Value in an amount at least
equal to the excess of such original principal amount over 75% of such
Original Value until the principal amount of any such XXX is reduced below
80% of the Original Value or, based upon a new appraisal, the principal
amount of such XXX represents less than 80% of the new appraised value. The
Master Servicer shall, or shall cause the related Sub-Servicer to, effect
the timely payment of the premium on each Primary Mortgage Insurance
Policy. The Master Servicer and the related Sub-Servicer shall have the
power to substitute for any Primary Mortgage Insurance Policy another
substantially equivalent policy issued by another Qualified Insurer;
provided that such substitution is subject to the condition, to be
evidenced by a writing from each Rating Agency, that it would not cause the
ratings on the Certificates to be downgraded or withdrawn.
Section 3.10 Maintenance of Hazard Insurance and Fidelity
Coverage.
(a) The Master Servicer shall maintain and keep, or cause each
Sub-Servicer to maintain and keep, with respect to each XXX and
each REO Property, in full force and effect hazard insurance
and other such hazards as are customary in the area where the
Mortgage Property is located (fire insurance with extended
coverage) in an amount equal to at least the lesser of the
Outstanding Principal Balance of the XXX or the current
replacement cost of the Mortgaged Property, by companies that
currently reflect a General Policy in Best's Key Rating Guide
("Best's") currently acceptable to Xxxxxx Xxx and are licensed
to do business in the state wherein its property subject to the
policy is located (a "Best's Approved Insurer") and containing
a standard mortgagee clause; provided, however, that the amount
of hazard insurance may not be less than the amount necessary
to prevent loss due to the application of any co-insurance
provision of the related policy. Unless applicable state law
requires a higher deductible, the deductible on such hazard
insurance policy may be no more than $1000 or 1% of the
applicable amount of coverage, whichever is less. In the case
of a condominium unit, the required hazard insurance shall take
the form of a multiperil policy covering the entire condominium
project, in an amount equal to at least 100% of the insurable
value based on replacement cost.
(b) Any amounts collected by the Master Servicer or a Sub-Servicer
under any such hazard insurance policy (other than amounts to
be applied to the restoration or repair of the Mortgaged
Property or amounts released to the Mortgagor in accordance
with the Master Servicer's or a Sub-Servicer's normal servicing
procedures, the terms of the Mortgage Note, the Security
Instrument or applicable law) shall be deposited initially in a
Collection Account, for transmittal to the Distribution
Account, subject to withdrawal pursuant to Section 4.03.
(c) Any cost incurred by a Master Servicer or a Sub-Servicer in
maintaining any such hazard insurance policy shall not be added
to the amount owing under the XXX for the purpose of
calculating monthly distributions to Certificateholders,
notwithstanding that the terms of the XXX so permit. Such costs
shall be recoverable by the Master Servicer or a Sub-Servicer
out of related late payments by the Mortgagor or out of
Insurance Proceeds or Liquidation Proceeds or by the Master
Servicer from the Repurchase Price, to the extent permitted by
Section 4.03.
(d) No earthquake or other additional insurance is to be required
of any Mortgagor or maintained on property acquired with
respect to a Security Instrument other than pursuant to such
applicable laws and regulations as shall at any time be in
force and shall require such additional insurance. The Master
Servicer shall cause an ongoing review to be performed of the
XXXx to determine which, if any, of the Mortgaged Properties
are located in a federally designated special flood hazard area
and for each Mortgaged Property found to be located in a
federally designated special flood hazard area, the Master
Servicer shall use its best reasonable efforts to cause with
respect to the XXXx and each REO Property, flood insurance (to
the extent available and in accordance with mortgage servicing
industry practice) to be maintained. Such flood insurance shall
cover the Mortgaged Property, including all items taken into
account in arriving at the Appraised Value on which the XXX was
based, and shall be in an amount equal to the lesser of (i) the
Outstanding Principal Balance of the related XXX and (ii) the
minimum amount required under the terms of coverage to
compensate for any damage or loss on a replacement cost basis
(or the unpaid balance of the mortgage if replacement cost
coverage is not available for the type of building insured) and
(iii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended. Unless
applicable state law requires a higher deductible, the
deductible on such flood insurance may not exceed $1,000 or 1%
of the applicable amount of coverage, whichever is less.
(e) If insurance has not been maintained complying with Subsections
3.10(a) and (d) and there shall have been a loss which would
have been covered by such insurance had it been maintained, the
Master Servicer shall pay, or cause the related Sub- Servicer
to pay, for any necessary repairs.
(f) The Master Servicer shall present, or cause the related
Sub-Servicer to present, if it is a permitted claimant, claims
under the related hazard insurance or flood insurance policy.
(g) The Master Servicer shall obtain and maintain at its own
expense and for the duration of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy and
shall cause each Sub-Servicer to obtain and maintain an errors
and omissions insurance policy covering such Sub-Servicer's
officers, employees and other persons acting on its behalf in
connection with its activities under this Agreement. The amount
of coverage shall be at least equal to the coverage maintained
by the Master Servicer acceptable to Xxxxxx Mae or Xxxxxxx Mac
to service loans for it or otherwise in an amount as is
commercially available at a cost that is generally not regarded
as excessive by industry standards. The Master Servicer shall
promptly notify the Trustee of any material change in the terms
of such bond or policy. The Master Servicer shall provide
annually to the Trustee a certificate of insurance that such
bond and policy are in effect. If any such bond or policy
ceases to be in effect, the Master Servicer shall, to the
extent possible, give the Trustee ten days' notice prior to any
such cessation and shall use its best efforts to obtain a
comparable replacement bond or policy, as the case may be. Any
amounts relating to the XXXx collected under such bond or
policy shall be remitted to the Distribution Account to the
extent that such amounts have not previously been paid to such
account.
Section 3.11 Due-on-Sale Clauses; Assumption Agreements.
(a) In any case in which the Master Servicer is notified by any
Mortgagor or Sub- Servicer that a Mortgaged Property relating
to a XXX has been or is about to be conveyed by the Mortgagor,
the Master Servicer shall enforce, or shall instruct such
Sub-Servicer to enforce, any due-on-sale clause contained in
the related Security Instrument to the extent permitted under
the terms of the related Mortgage Note and by applicable law
unless the Master Servicer reasonably believes such enforcement
is likely to result in legal action by the Mortgagor. If the
Master Servicer reasonably believes that such due-on-sale
clause cannot be enforced under applicable law or if the XXX
does not contain a due-on-sale clause, the Master Servicer is
authorized, and may authorize any Sub-Servicer, to consent to a
conveyance subject to the lien of the Mortgage, and to take or
enter into an assumption agreement from or with the Person to
whom such property has been or is about to be conveyed,
pursuant to which such Person becomes liable under the related
Mortgage Note and unless prohibited by applicable state law,
such Mortgagor remains liable thereon, on condition, however,
that the related XXX shall continue to be covered (if so
covered before the Master Servicer or the related Sub-Servicer
enters into such agreement) by any applicable Primary Mortgage
Insurance Policy. The Master Servicer shall notify the Trustee,
whenever possible, before the completion of such assumption
agreement, and shall forward to the Trustee the original copy
of such assumption agreement, which copy shall be added by the
Trustee to the related Mortgage File and which shall, for all
purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting
a part thereof. In connection with any such assumption
agreement, the interest rate on the related XXX shall not be
changed and no other material alterations in the XXX shall be
made unless such material alteration would not cause the REMIC
to fail to qualify as a REMIC for federal income tax purposes,
as evidenced by a REMIC Opinion. If the interest rate on an
assumed XXX is increased due to both (i) permitted increases
upon assumption under the terms of such XXX and (ii) all
applicable restrictions hereunder being satisfied, the Master
Servicer shall, as part of the report to the Trustee and the
Seller pursuant to Section 6.07(b) hereof, provide therefor on
a revised XXX Schedule. In any event, the Master Servicer shall
advise the Trustee in writing of the entry into of any material
modification of a XXX in connection with an assumption and
shall provide the Trustee with a copy of such REMIC Opinion.
Any fee or additional interest collected by the Master Servicer
or Sub-Servicer for consenting to any such conveyance or
entering into any such assumption agreement may be retained by
the Master Servicer or the related Sub-Servicer as additional
servicing compensation.
(b) Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Master Servicer shall not be deemed to
be in default, breach or any other violation of its obligations
hereunder by reason of any assumption of a XXX by operation of
law or any conveyance by the Mortgagor of the related Mortgaged
Property or assumption of a XXX which the Master Servicer
reasonably believes, based on prudent servicing standards, it
may be restricted by law from preventing, for any reason
whatsoever or if the exercise of such right would impair or
threaten to impair any recovery under any applicable Insurance
Policy, or, in the Master Servicer's judgment, be reasonably,
likely to result in legal action by the Mortgagor or would
otherwise adversely affect the Certificateholders.
Section 3.12 Realization Upon Defaulted XXXx.
(a) The Master Servicer shall, or shall direct the related
Sub-Servicer to, foreclose upon or otherwise comparably convert
the ownership of properties securing any XXXx that come into
and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments
pursuant to Section 3.06 except that the Master Servicer shall
not, and shall not direct the related Sub-Servicer, if any, to,
foreclose upon or otherwise comparably convert a Mortgaged
Property if there is evidence of environmental hazards or toxic
waste thereon and the Master Servicer determines it would be
imprudent to do so or not in accordance with appropriate
servicing standards. The Master Servicer can conclusively rely
on results of third party inspections from parties it
reasonably believes are qualified to conduct such inspections.
In connection with such foreclosure or other conversion, the
Master Servicer in conjunction with the related Sub-Servicer,
if any, shall use its best reasonable efforts to preserve REO
Property and to realize upon defaulted XXXx in such manner as
to maximize the receipt of principal and interest by the
Certificateholders, taking into account, among other things,
the timing of foreclosure and the considerations set forth in
Subsection 3.12(b). The foregoing is subject to the proviso
that the Master Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the
restoration of any property unless it determines in good faith
(i) that such restoration or foreclosure will increase the
proceeds of liquidation of the XXX to Certificateholders after
reimbursement to itself for such expenses and (ii) that such
expenses will be recoverable to it either through Liquidation
Proceeds (respecting which it shall have priority for purposes
of reimbursements from the Distribution Account pursuant to
Section 4.03) or through Insurance Proceeds (respecting which
it shall have similar priority). The Master Servicer shall be
responsible for all other costs and expenses incurred by it in
any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof (as well as its normal
servicing compensation), and in respect of the Master Servicer
only, to receive Excess Liquidation Proceeds as additional
servicing compensation to the extent that transfers or
withdrawals from the Distribution Account with respect thereto
are permitted under Section 4.03. Any income from or other
funds (net of any income taxes) generated by REO Property shall
be deemed for purposes of this Agreement to be Insurance
Proceeds. Any REO Property acquired shall be acquired in the
name of the Trustee, as trustee for the benefit of the
Certificateholders.
(b) The Trust Fund shall not acquire any real property (or any
personal property incident to such real property) except in
connection with a default or reasonably foreseeable default of
a XXX. In the event that the Trust Fund acquires any real
property (or personal property incident to such real property)
in connection with a default or reasonably foreseeable default
of a XXX, such property shall be disposed of by the Trust Fund
before the close of the third taxable year following the
taxable year in which the Trust Fund acquired such property
("grace period") unless the Trustee shall have received a REMIC
Opinion with respect to such longer retention or the Master
Servicer applies for and receives an extension of the grace
period under Section 856(e)(3) of the Code, in which case such
three year period will be extended by the grace period set
forth in such REMIC Opinion or approved application, as the
case may be. The Trustee shall have no obligation to pay for
such REMIC Opinion.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon payment in full of any XXX or the receipt by the Master
Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master
Servicer will immediately notify the Trustee by a certification
signed by a Servicing Officer in the Form of Exhibit D (which
certification shall include a statement to the effect that all
amounts received or to be received in connection with such
payment which are required to be deposited in the Distribution
Account have been or will be so deposited therein) and shall
request delivery to the Master Servicer or a Sub-Servicer, as
the case may be, of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall promptly release
the related Mortgage File to the Master Servicer or a
Sub-Servicer and execute and deliver to the Master Servicer,
without recourse, the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such
instrument releasing the lien of the Security Instrument
(furnished by the Master Servicer), together with the Mortgage
Note with written evidence of cancellation thereon. No expenses
incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Distribution
Account.
(b) From time to time as is appropriate for the servicing or
foreclosure of any XXX or collection under a Required Insurance
Policy, the Master Servicer shall deliver to the Trustee a
Request for Release signed by a Servicing Officer on behalf of
the Master Servicer in substantially the form attached as
Exhibit D hereto. Upon receipt of the Request for Release, the
Trustee shall deliver the Mortgage File or any document therein
to the Master Servicer or Sub-Servicer, as the case may be.
(c) The Master Servicer shall cause each Mortgage File or any
document therein released pursuant to Subsection 3.13(b) to be
returned to the Trustee when the need therefor no longer
exists, unless the XXX has become a Liquidated XXX and the
Liquidation Proceeds relating to the XXX have been deposited in
the Distribution Account or such Mortgage File is being used to
pursue foreclosure or other legal proceedings. Prior to return
of a Mortgage File or any document to the Trustee, the Master
Servicer, the related Insurer or Sub-Servicer to whom such file
or document was delivered shall retain such file or document in
its respective control unless the Mortgage File or such
document has been delivered to an attorney, or to a public
trustee or other public official as required by law, to
initiate or pursue legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Master Servicer has delivered to the
Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of
such delivery. If a XXX becomes a Liquidated XXX, the Master
Servicer shall deliver the Request for Release with respect
thereto to the Trustee upon deposit of the related Liquidation
Proceeds in the Distribution Account.
(d) The Trustee shall execute and deliver to the Master Servicer
any court pleadings, requests for trustee's sale or other
documents necessary or desirable to (i) the foreclosure or
trustee's sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Security Instrument; (iii) obtain a
deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or
Security Instrument or otherwise available at law or equity.
Together with such documents or pleadings the Master Servicer
shall deliver to the Trustee a certificate of a Servicing
Officer in which it requests the Trustee to execute the
pleadings or documents. The certificate shall certify and
explain the reasons for which the pleadings or documents are
required. It shall further certify that the Trustee's execution
and delivery of the pleadings or documents will not invalidate
any insurance coverage under the Required Insurance Policies or
invalidate or otherwise affect the lien of the Security
Instrument, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
Section 3.14 Servicing and Master Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee
from full payments of accrued interest on each XXX.
(b) The Master Servicer may retain additional servicing
compensation in the form of prepayment charges, if any,
assumption fees, tax service fees, fees for statement of
account or payoff, late payment charges, interest on amounts
deposited in any Accounts or Permitted Investments of such
amounts, or otherwise. The Master Servicer is also entitled to
receive Excess Liquidation Proceeds as additional servicing
compensation. The Master Servicer shall be required to pay all
expenses it incurs in connection with servicing activities
under this Agreement, including fees and expenses to
Sub-Servicers, and shall not be entitled to reimbursement
except as provided in this Agreement. Expenses to be paid by
the Master Servicer under this Subsection 3.14(b) shall include
payment of the expenses of the accountants retained pursuant to
Section 3.16.
Section 3.15 Annual Statement of Compliance. Within 120
days after the last day of each fiscal year of the Master Servicer,
currently _________, commencing in ______, the Master Servicer at its own
expense, shall deliver to the Trustee, with a copy to the Rating Agencies,
an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer during the preceding fiscal
year or applicable portion thereof and of performance under this Agreement
has been made under such officer's supervision, (ii) to the best of such
officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement for such year, or, if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof including the steps being taken by the Master Servicer to
remedy such default; (iii) a review of the activities of each Sub-Servicer,
if any, during the Sub-Servicer's most recently ended fiscal year on or
prior to such December 31st and its performance under its Sub-Servicing
Agreement has been made under such Officer's supervision; and (iv) to the
best of the Servicing Officer's knowledge, based on his review and the
certification of an officer of the Sub-Servicer (unless the Servicing
Officer has reason to believe that reliance on such certification is not
justified), either each Sub-Servicer has performed and fulfilled its
duties, responsibilities and obligations under this Agreement and its
Sub-Servicing Agreement in all material respects throughout the year, or,
if there has been a default in performance or fulfillment of any such
duties, responsibilities or obligations, specifying the nature and status
of each such default known to the Servicing Officer. Copies of such
statements shall be provided by the Master Servicer to the
Certificateholders upon request or by the Trustee at the expense of the
Master Servicer should the Master Servicer fail to provide such copies.
Section 3.16 Annual Independent Public Accountants'
Servicing Report.
(a) Within 120 days after the last day of each fiscal year of the
Master Servicer, currently ________, commencing in _______, the
Master Servicer, at its expense, shall cause a firm of
Independent public accountants who are members of the American
Institute of Certified Public Accountants to furnish a letter
to the Master Servicer, which will be provided to the Trustee
and the Rating Agencies providing the results of such firm's
examination of the Master Servicer's overall servicing
activities for such fiscal year conducted in accordance with
the requirements of the Uniform Single Attestation Program for
Mortgage Bankers. In connection with the engagement to deliver
any such report (or other accountants' report or certificate
hereunder) the Trustee is authorized and directed to enter into
such agreed-upon- procedures or engagement letter as such
accountants may request and shall be indemnified by the Trust
hereunder in so doing.
(b) Within 120 days after the last day of the fiscal year of each
Sub-Servicer or a Master Servicer other than [Master Servicer
name] or the Trustee, commencing in _______, the Master
Servicer, at its expense, shall furnish to the Trustee the most
recently available letter or letters from one or more firms of
Independent certified public accountants who are members of the
American Institute of Certified Public Accountants reporting
the results of such firm's examination of the servicing
procedures of any Sub-Servicer and any Master Servicer (other
than [Master Servicer name] or the Trustee) in accordance with
the requirements of the Uniform Single Attestation Program for
Mortgage Bankers, or such other program as may be certified as
being comparable by such accountants.
Section 3.17 REMIC-Related Covenants. For as long as the
REMIC Assets shall exist, the Master Servicer and the Trustee shall act in
accordance herewith to assure continuing treatment of the REMIC Assets as a
REMIC, and the Trustee shall comply with any directions of the Master
Servicer to assure such continuing treatment. In particular, the Trustee
shall not (a) sell or permit the sale of all or any portion of the XXXx or
of any Permitted Investment unless such sale is as a result of a repurchase
of the XXXx pursuant to this Agreement or the Trustee has received a REMIC
Opinion prepared at the expense of the Trust Fund; and (b) other than with
respect to a substitution pursuant to Section 2.04, accept any contribution
to the REMIC Assets after the Startup Day without receipt of a REMIC
Opinion.
Section 3.18 Additional Information. The Master Servicer
agrees to furnish the Seller from time to time upon reasonable request,
such further information, reports and financial statements as the Seller
deems appropriate to prepare and file all necessary reports with the
Securities and Exchange Commission.
Section 3.19 Optional Purchase of Defaulted XXXx. The
Master Servicer shall have the right, but not the obligation, to purchase
any Defaulted XXX for a price equal to the Repurchase Price therefor. Any
such purchase shall be accomplished as provided in Subsection 2.02(c)
hereof.
Section 3.20 Periodic Filings with the Securities and
Exchange Commission; Additional Information. The Trustee agrees to
cooperate with the Seller in connection with the filing by the Seller with
the Securities and Exchange Commission of any and all reports, statements
and information respecting the Trust Fund and/or the Certificates required
to be filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended.
Section 3.21 Reports of Foreclosures and Abandonments of
Mortgaged Property.
Following the foreclosure sale or abandonment of any
Mortgaged Property, the Master Servicer shall report such foreclosure or
abandonment as required pursuant to Section 6050J of the Code.
Section 3.22 Appraisals: Qualified Major Home
Improvements. As required by each Mortgage Note, the Master Servicer shall
cause the Mortgagors to conduct appraisals to determine the value of the
Mortgaged Property in the context of Qualified Major Home Improvements (as
such term is defined in the related Mortgage Note) and on the earlier of
the maturity date of the related XXX and the occurrence of a Mortgage
Termination Event. The Master Servicer shall adjust the Adjusted Value of
the Mortgaged Property and the Settlement Value of each such XXX as
provided in such Mortgage Note as a result of such appraisals and calculate
any amount due to the Mortgagor upon the maturity of the related XXX or the
occurrence of a Mortgage Termination Event. Multiple appraisals shall be
conducted as provided in such Mortgage Note. The appraiser conducting any
such appraisal, and the initial appraisal, shall be chosen from a schedule
of appraisers attached hereto as Schedule I. Such schedule may be amended
from time to time by the Purchaser in its able discretion. A Qualified
Major Home Improvement shall include any improvement items shown on
Schedule [III]. Such schedule may be amended from time to time by the
Purchaser in its sole discretion for any XXXx to be originated by the
Seller.
Section 3.23 Fees That The Servicer Will Collect. As
provided in such Mortgage Note, the Master Servicer will charge and collect
from each Mortgagor: (i) at the maturity date for the XXX or upon the
Mortgagor's knowledge of the occurrence of a Mortgage Termination Event, a
fee for the costs associated with the payoff in full of the Mortgage Note;
and (ii) in connection with each Qualified Major Home Improvement (as such
term is defined in the related Mortgage Note), a fee for the costs
associated with adjusting the Mortgaged Property's Adjusted Value resulting
from the Qualified Major Home Improvement (as such term is defined the
related Mortgage Note) and otherwise complying with such Mortgage Note. The
amount of all fees collected pursuant to this Section shall be specified in
the Mortgage Note.
Section 3.24 Certificate of Occupancy. In accordance with
the Mortgage Note, the Master Servicer will cause each Mortgagor to sign an
occupancy certificate provided by the Seller from time to time, certifying
that the Mortgaged Property is occupied.
ARTICLE IV
Accounts
Section 4.01 Collection Accounts.
(a) The Master Servicer shall establish and maintain if it is
servicing the XXXx and shall require each Sub-Servicer to
establish and maintain a Collection Account complying with the
requirements set forth in this Section 4.01, with records to be
kept with respect thereto on a XXX by XXX basis, into which
accounts shall be deposited within 2 Business Days of receipt
all collections of principal and interest on any XXX and with
respect to any REO Property received by the Master Servicer, or
a Sub-Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, and advances made from the
Sub-Servicer's own funds (less servicing compensation as
permitted by Subsection 3.14(a)) and all other amounts to be
deposited in the Collection Accounts. The Master Servicer is
hereby authorized to make withdrawals from and deposits to the
related Collection Accounts for purposes required or permitted
by this Agreement. All Collection Accounts shall be held in a
Designated Depository Institution and segregated on the books
of such institution. The amount at any time credited to a
Collection Account shall be fully insured by the FDIC or, to
the extent that such balance exceeds the lesser of $100,000 or
the limits of such insurance, such excess must be transferred
to the Distribution Account or invested in Permitted
Investments or may be deposited in a Rating Agency Eligible
Account, including an account at the ____________________, in
the name of the Trustee for the benefit of Certificateholders
and not commingled with any other funds. The Master Servicer
may, and the Master Servicer may permit a Sub-Servicer to,
transfer funds to other accounts (which shall for purposes
hereof be deemed to be Collection Accounts), commingle
accounts, or to establish Collection Accounts not conforming to
the foregoing requirements, to the extent that such other
accounts or Collection Accounts are Rating Agency Eligible
Accounts.
Amounts on deposit in a Collection Account may be
invested in Permitted Investments in the name of the Trustee for the
benefit of Certificateholders and, except as provided in the preceding
paragraph, not commingled with any other funds, such Permitted Investments
to mature, or to be subject to redemption or withdrawal, no later than the
date on which such funds are required to be withdrawn for deposit in the
Distribution Account, and shall be held until required for such deposit.
The income earned from Permitted Investments made pursuant to this Section
4.01 shall be paid to the Master Servicer or the related Sub-Servicer as
additional compensation for its obligations under this Agreement, and the
risk of loss of moneys required to be distributed to the Certificateholders
resulting from such investments shall be borne by and be the risk of the
Master Servicer or the related Sub-Servicer. The Master Servicer shall
itself, or shall cause the related Sub-Servicer to, deposit the amount of
any such loss in the related Collection Account within two Business Days of
receipt of notification of such loss but not later than the second Business
Day prior to the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
(b) On or before each Funds Transfer Date, the Master Servicer
shall withdraw or shall cause to be withdrawn from the
Collection Accounts and shall immediately deposit or cause to
be deposited in the Distribution Account amounts representing
the following collections and payments (other than with respect
to principal of or interest on the XXXx due on or before the
Cut-off Date):
(i) Scheduled Payments on the XXXx received or any
portion thereof advanced by the Master Servicer or
Sub-Servicers which were due on or before the related Due
Date, net of the amount thereof comprising the Master
Servicing Fee due the Master Servicer;
(ii) Full Principal Prepayments and any Liquidation
Proceeds received by the Master Servicer or Sub-Servicers
with respect to such XXXx in the related Prepayment
Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the
Master Servicing Fee due the Master Servicer;
(iii) Partial prepayments of principal received by
the Master Servicer or Sub-Servicers for such XXXx in the
related Prepayment Period; and
(iv) Any amount to be used as a Distribution
Account Advance.
(c) Withdrawals may be made from a Collection Account only to make
remittances as provided in Subsections 4.01(b) or 4.03(c); to
reimburse the Master Servicer or a Sub-Servicer for advances of
principal and interest which have been recovered by subsequent
collection from the related Mortgagor; to remove amounts
deposited in error; to remove fees, charges or other such
amounts deposited on a temporary basis; or to clear and
terminate the account at the termination of this Agreement in
accordance with Section 10.01. As provided in Section 4.02(b)
certain amounts otherwise due to the Master Servicer may be
retained by it and need not be deposited in the Distribution
Account.
(d) The Master Servicer shall deliver to the Trustee on or prior to
the Determination Date in each month a statement from the
institution at which each Collection Account is maintained
showing deposits and withdrawals during the prior month.
Section 4.02 Distribution Account.
(a) The Trustee shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the
Distribution Account as a segregated Rating Agency Eligible
Account or Accounts. The Trustee will deposit in the
Distribution Account as received the following amounts:
(i) Any amounts withdrawn from a Collection Account
pursuant to Subsection 4.01(b);
(ii) Any Monthly Advance and any Compensating
Interest Payments;
(iii) Any Insurance Proceeds or Liquidation
Proceeds received by the Master Servicer which were not
deposited in a Collection Account;
(iv) The Repurchase Price with respect to any XXXx
purchased pursuant to Sections 2.02, 2.03A or 3.19, any
amounts which are to be treated pursuant to Section 2.04
as the payment of such a Repurchase Price, and all
proceeds of any XXXx or property acquired with respect
thereto repurchased by the Seller or its designee
pursuant to Section 10.01;
(v) Any amounts required to be deposited with
respect to losses on Permitted Investments pursuant to
Subsection 4.02(d) below; and
(vi) Any other amounts received by the Master
Servicer or the Trustee and required to be deposited in
the Distribution Account pursuant to this Agreement.
(b) All amounts (other than income earned on Permitted Investments)
deposited to the Distribution Account shall be held by the
Trustee in the name of the Trustee in trust for the benefit of
the Certificateholders and in accordance with the terms and
provisions of this Agreement, subject to the right of the
Master Servicer to require the Trustee to make withdrawals
therefrom as provided herein. The foregoing requirements for
crediting the Distribution Account shall be exclusive, it being
understood and agreed that, without limiting the generality of
the foregoing, payments in the nature of (i) prepayment or late
payment charges or assumption, tax service, statement account
or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections
4.03(a)(ii), (iii), (iv), (v), (vii), (viii), (x) and (xii)
need not be credited by the Master Servicer or the related
Sub-Servicer to the Distribution Account and may be retained by
the Master Servicer or the related Sub-Servicer as servicing
compensation. In the event that the Master Servicer shall
deposit or cause to be deposited to the Distribution Account
any amount not required to be credited thereto, the Trustee,
upon receipt of a written request therefor signed by a
Servicing Officer of the Master Servicer, shall promptly
transfer such amount to the Master Servicer, any provision
herein to the contrary notwithstanding.
(c) The Distribution Account shall constitute a segregated Rating
Agency Eligible Account of the Trust Fund segregated on the
books of the Trustee and held by the Trustee in trust. The
amount at any time credited to the Distribution Account shall
be (i) fully insured by the FDIC or the Bank Insurance Fund to
the maximum coverage provided thereby, (ii) invested, in the
name of the Trustee, or its nominee, for the benefit of the
Certificateholders, in such Permitted Investments described in
clause (viii) of the definition of Permitted Investments to be
held by the Trustee as the Trustee shall determine, or (iii)
from the maturity of any Permitted Investment on the Business
Day prior to a Distribution Date through the distribution of
such funds on such Distribution Date or at such other time and
in such amount as, in the judgment of the Trustee, cannot
reasonably be invested in accordance with items (i) or (ii) of
this sentence, held by the Trustee uninvested in such
Distribution Account. All Permitted Investments shall mature or
be subject to redemption or withdrawal on or before, and shall
be held until, the next succeeding Distribution Date if the
obligor for such Permitted Investment is the Trustee or, if
such obligor is any other Person, the Business Day preceding
such Distribution Date.
(d) The income earned from Permitted Investments made pursuant to
this Section 4.02 shall be paid to the Trustee, as additional
compensation for its obligations under this Agreement, and the
risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be
borne by and be the risk of the Trustee. The amount of any such
loss shall be deposited by the Trustee in the Distribution
Account within two Business Days of receipt of notification of
such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the
Distribution Account.
(a) The Trustee will, from time to time on demand of the Master
Servicer, make or cause to be made such withdrawals or
transfers from the Distribution Account as the Master Servicer
has designated for such transfer or withdrawal as specified in
a certificate signed by a Servicing Officer (upon which the
Trustee may conclusively rely) for the following purposes
(limited in the case of amounts due the Master Servicer to
those not withdrawn from the Collection Account in accordance
with the terms of this Agreement):
(i) [Reserved];
(ii) to reimburse the Master Servicer or any
Sub-Servicer for any Monthly Advance or Servicing Advance
of its own funds or any advance of such Sub-Servicer's
own funds, the right of the Master Servicer or a Sub-
Servicer to reimbursement pursuant to this subclause (ii)
being limited to amounts received on a particular XXX
(including, for this purpose, the Repurchase Price
therefor, Insurance Proceeds and Liquidation Proceeds)
which represent late payments or recoveries of the
principal of or interest on such XXX respecting which
such Monthly Advance or Servicing Advance was made;
(iii) to reimburse the Master Servicer or any
Sub-Servicer from Insurance Proceeds or Liquidation
Proceeds relating to a particular XXX for amounts
expended by the Master Servicer or such Sub-Servicer
pursuant to Section 3.12 in good faith in connection with
the restoration of the related Mortgaged Property which
was damaged by an Uninsured Cause or in connection with
the liquidation of such XXX;
(iv) to reimburse the Master Servicer or any
Sub-Servicer from Insurance Proceeds relating to a
particular XXX for Insured Expenses incurred with respect
to such XXX and to reimburse the Master Servicer or such
Sub-Servicer from Liquidation Proceeds from a particular
XXX for Liquidation Expenses incurred with respect to
such XXX; provided that the Master Servicer shall not be
entitled to reimbursement for Liquidation Expenses with
respect to a XXX to the extent that (i) any amounts with
respect to such XXX were paid as Excess Liquidation
Proceeds pursuant to clause (xii) of this Subsection
4.03(a) to the Master Servicer; and (ii) such Liquidation
Expenses were not included in the computation of such
Excess Liquidation Proceeds;
(v) to pay the Master Servicer or any Sub-Servicer
(payment to any Sub-Servicer to be subject to prior
payment to the Master Servicer of an amount equal to the
Master Servicing Fee), as appropriate, from Liquidation
Proceeds or Insurance Proceeds received in connection
with the liquidation of any XXX, the amount which it or
such Sub-Servicer would have been entitled to receive
under subclause (x) of this Subsection 4.03(a) as
servicing compensation on account of each defaulted
scheduled payment on such XXX if paid in a timely manner
by the related Mortgagor, but only to the extent that the
aggregate of Liquidation Proceeds and Insurance Proceeds
with respect to such XXX, after any reimbursement to the
Master Servicer or any Sub-Servicer, pursuant to
subclauses (ii), (iii), (iv) and (vii) of this Subsection
4.03(a), exceeds the Outstanding Principal Balance of
such XXX plus accrued and unpaid interest thereon at the
related Stated Interest Rate less the Master Servicing
Fee Rate to but not including the date of payment;
(vi) to pay the Master Servicer or any Sub-Servicer
(payment to any Sub-Servicer to be subject to prior
payment to the Master Servicer of the portion of the
Master Servicing Fee which the Master Servicer is
entitled to retain as evidenced in writing to the Trustee
by the Master Servicer, as appropriate) from the
Repurchase Price for any XXX, the amount which it or such
Sub-Servicer would have been entitled to receive under
subclause (x) of this Subsection 4.03(a) as servicing
compensation, but only to the extent that the Repurchase
Price with respect to such XXX after any reimbursement to
the related Master Servicer and Sub-Servicer pursuant to
subclauses (ii) and (vii) of this Subsection 4.03(a)
exceeds the Outstanding Principal Balance of such XXX
plus accrued and unpaid interest thereon at the related
Stated Interest Rate less the Master Servicing Fee Rate
through the last day of the month of repurchase;
(vii) to reimburse the Master Servicer or any
Sub-Servicer for Servicing Advances pursuant to Sections
3.07, 3.09 and 3.10, the right to reimbursement pursuant
to this subclause being limited to amounts received on
the related XXX (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late recoveries of
the payments for which such advances were made;
(viii) to pay the Master Servicer or any
Sub-Servicer, as the case may be, with respect to each
XXX that has been purchased pursuant to Section 2.02,
2.03A, 2.04, 3.19 or 10.01, all amounts received thereon,
representing recoveries of principal that reduce the
Outstanding Principal Balance of the related XXX below
the Outstanding Principal Balance used in calculating the
Repurchase Price or representing interest included in the
calculation of the Repurchase Price or accrued after the
end of the month during which such repurchase occurs;
(ix) to reimburse the Master Servicer or any
Sub-Servicer for any Monthly Advance or Servicing
Advance, after a Realized Loss has been allocated with
respect to the related XXX if the Monthly Advance or
Servicing Advance has not been reimbursed pursuant to
clauses (ii) and (vii);
(x) to pay the Master Servicer and any Sub-Servicer
servicing compensation as set forth in Section 3.14;
(xi) to reimburse the Master Servicer for expenses,
costs and liabilities incurred by and reimbursable to it
pursuant to Subsection 7.04(d);
(xii) to pay to the Master Servicer, as additional
servicing compensation, any Excess Liquidation Proceeds;
(xiii) to clear and terminate the Distribution
Account pursuant to Section 10.01; and
(xiv) to remove amounts deposited in error.
The Master Servicer shall keep and maintain separate
accounting, on a XXX by XXX basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i)
through (vii), inclusive, and (ix) or with respect to any such amounts
which would have been covered by such subclauses had the amounts not been
retained by the Master Servicer without being deposited in the Distribution
Account under Section 4.02(b).
(b) On each Distribution Date, the Trustee shall make the following
payments in the priority set forth from the funds in the
Distribution Account:
(i) First, the Trustee's Fees and expenses shall be
paid to the Trustee in accordance with Section 9.05(a);
and
(ii) Second, the amount distributable to the
Holders of the Certificates shall be payable in
accordance with Section 6.01.
(c) Notwithstanding the provisions of this Section 4.03, the Master
Servicer may, but is not required to, allow the Sub-Servicers
to deduct from amounts received by them or from the related
Collection Account, prior to deposit in the Distribution
Account, any portion to which such Sub-Servicers are entitled
as servicing compensation (including income on Permitted
Investments) or reimbursement of any reimbursable advances made
by such Sub-Servicers.
(d) The Trustee shall be permitted to make withdrawals or transfers
from the Distribution Account to remove amounts deposited by
the Trustee in error.
ARTICLE V
Certificates
Section 5.01 Certificates.
(a) The Depository, the Seller and the Trustee have entered into a
Depository Agreement dated as of _____________, 2000 (the
"Depository Agreement). Except for the Residual Certificate,
the Class X Certificates, the Individual Certificates and as
provided in Subsection 5.01(b), the Certificates shall at all
times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of such Certificates
may not be transferred by the Trustee except to a successor to
the Depository; (ii) ownership and transfers of registration of
such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository;
(iii) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (iv) the
Trustee shall deal with the Depository as representative of
such Certificate Owners of the respective Class of Certificates
for purposes of exercising the rights of Certificateholders
under this Agreement, and requests and directions for and votes
of such representative shall not be deemed to be inconsistent
if they are made with respect to different Certificate Owners;
and (v) the Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with
respect to its Depository Participants.
The Class X Certificates, the Class R Certificate and the
Private Certificates are initially Physical Certificates. If at any time
the Holders of all of the Certificates of one or more such Classes request
that the Trustee cause such Class to become Global Certificates, the
Trustee and the Seller will take such action as may be reasonably required
to cause the Depository to accept such Class or Classes for trading if it
may legally be so traded.
All transfers by Certificate Owners of such respective
Classes of Book- Entry Certificates and any Global Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(b) If (i)(A) the Seller advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge
its responsibilities as Depository and (B) the
Trustee or the Seller is unable to locate a qualified successor
within 30 days or (ii) the Seller at its option advises the
Trustee in writing that it elects to terminate the book-entry
system through the Depository, the Trustee shall request that
the Depository notify all Certificate Owners of the occurrence
of any such event and of the availability of definitive, fully
registered Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Certificates by the
Depository, accompanied by registration instructions from the
Depository for registration, the Trustee shall issue such
definitive Certificates. Neither the Seller, the Master
Servicer 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.
(c) [Reserved]
(d) The Classes of the Certificates shall have the following
designations, initial principal or notional amounts and
Pass-Through Rates:
Designation Initial Principal or Pass-Through Rate
Notional Amount
Class A Certificates _______ _______
Class PO Certificates _______ (1)
Class X Certificates (2) (2)
Class B Certificates _______ _______
Class C Certificates _______ _______
Class D Certificates _______ _______
Class E Certificates _______ _______
Class F Certificates _______ _______
Class G Certificates _______ _______
Class R Certificate _______ _______
-------------
(1) The Class PO Certificates are principal only certificates and
will not bear interest. The Current Principal Amount of the
Class PO Certificates initially will be the amount shown above
and is composed of strips of principal from the Discount XXXx.
(2) The Class X Certificates will have a Notional Amount equal to
the sum of the aggregate Scheduled Principal Balances of the
Non-Discount XXXx. They will bear interest on their Notional
Amount at a variable Pass-Through Rate equal to the weighted
average of the excess of (i) the Remittance Rates of the
Non-Discount XXXx over (ii) ______ % per annum. For the Class X
Certificates, the initial Notional Amount will be $
____________ and the Pass-Through Rate for the initial Interest
Accrual Period is ______% per annum.
(e) With respect to each Distribution Date, each Class of
Certificates (other than the Class PO Certificates) shall
accrue interest during the related Interest Accrual Period.
With respect to each Distribution Date and each such Class of
Certificates, interest shall be calculated, on the basis of a
360-day year comprised of twelve 30- day months, based upon the
respective Pass-Through Rate set forth, or determined as
provided above, and the Current Principal Amount or Notional
Amount, as the case may be, of such Class applicable to such
Distribution Date.
(f) The Certificates shall be substantially in the forms set forth
in Exhibit A-1 and A-2. On original issuance, the Trustee shall
sign, countersign and shall deliver them at the direction of
the Seller. Pending the preparation of definitive Certificates
of any Class, the Trustee may sign and countersign temporary
Certificates that are printed, lithographed or typewritten, in
authorized denominations for Certificates of such Class,
substantially of the tenor of the definitive Certificates in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as
the officers or authorized signatories executing such
Certificates may determine, as evidenced by their execution of
such Certificates. If temporary Certificates are issued, the
Seller 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 of the Trustee, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall sign and countersign
and deliver in exchange therefor a like aggregate principal
amount, in authorized denominations for such Class, of
definitive Certificates of the same Class. Until so exchanged,
such temporary Certificates shall in all respects be entitled
to the same benefits as definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a
single Certificate of such Class held by a nominee of the
Depository or the DTC Custodian, and beneficial interests will
be held by investors through the book-entry facilities of the
Depository in minimum denominations of (i) in the case of the
Senior Certificates which are Book-Entry Certificates, $1,000
and in each case increments of $1.00 in excess thereof, and
(ii) in the case of the Offered Subordinate Certificates,
$1,000 and increments of $1.00 in excess thereof, except that
one Certificate of each such Class may be issued in a different
amount so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Current Principal
Amount of such Class on the Closing Date. On the Closing Date,
the Trustee shall execute and countersign Physical Certificates
all in an aggregate principal amount that shall equal the
Current Principal Amount of such Class on the Closing Date. The
Class X Certificates will be issued in certificated
fully-registered form in minimum denominations of $1,000 and in
each case increments of $1.00 in excess thereof, except that
one Certificate of such Class may be issued in a different
amount so that the sum of the denominations of all of the
Outstanding Certificates of such Class shall equal the Notional
Amount of such Class on the Closing Date. The Private
Certificates will be issued in certificated fully-registered
form in minimum denominations of $50,000 and increments of
$1.00 in excess thereof, except that one Certificate of each
such Class may be issued in a different amount so that the sum
of the denominations of all outstanding Certificates of such
Class shall equal the Current Principal Amount of such Class on
the Closing Date. The Class R Certificate shall be issued in
certificated fully-registered form in the denomination of $100.
Each Class of Global Certificates, if any, shall be issued in
fully registered form in minimum dollar denominations of
$50,000 and integral multiples of $1.00 in excess thereof,
except that one Certificate of each Class may be in a different
denomination so that the sum of the denominations of all
outstanding Certificates of such Class shall equal the Current
Principal Amount of such Class on the Closing Date. On the
Closing Date, the Trustee shall execute and countersign (i) in
the case of each Class of Offered Certificates (other than the
Class X Certificates), the Certificate in the entire Current
Principal Amount of the respective Class and (ii) in the case
of the Class X Certificates and each Class of Private
Certificates, all in an aggregate Notional Amount or principal
amount that shall equal the Notional Amount or Current
Principal Amount of each such respective Class on the Closing
Date. The Certificates referred to in clause (i) and if at any
time there are to be Global Certificates, the Global
Certificates shall be delivered by the Seller to the Depository
or pursuant to the Depository's instructions, shall be
delivered by the Seller on behalf of the Depository to and
deposited with the DTC Custodian. The Trustee shall sign the
Certificates by facsimile or manual signature and countersign
them by manual signature on behalf of the Trustee by one or
more authorized signatories, each of whom shall be a
Responsible Officer of the Trustee or its agent. A Certificate
bearing the manual and facsimile signatures of individuals who
were the authorized signatories of the Trustee or its agent at
the time of issuance shall bind the Trustee, notwithstanding
that such individuals or any of them have ceased to hold such
positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on
such Certificate the manually executed countersignature of the
Trustee or its agent, and such countersignature upon any
Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and
delivered hereunder. All Certificates issued on the Closing
Date shall be dated the Closing Date. All Certificates issued
thereafter shall be dated the date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of
the REMIC Assets within the meaning of Section 860G(a)(9) of
the Code.
(j) For federal income tax purposes, the REMIC Assets shall have a
tax year that is a calendar year and shall report income on an
accrual basis.
(k) The Trustee shall cause the REMIC Assets to elect to be treated
as a REMIC under Section 860D of the Code. Any inconsistencies
or ambiguities in this Agreement or in the administration of
any Trust established hereby shall be resolved in a manner that
preserves the validity of such elections.
(l) The Assumed Final Distribution Date for the Certificates is
_________, 20__.
Section 5.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall maintain at its Corporate Trust Office a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges
of Certificates as herein provided.
(b) Subject to Subsection 5.01(a) and, in the case of any Global
Certificate or Physical Certificate upon the satisfaction of
the conditions set forth below, upon surrender for registration
of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose, the Trustee shall sign,
countersign and shall deliver, in the name of the designated
transferee or transferees, a new Certificate of a like Class
and aggregate Fractional Undivided Interest, but bearing a
different number.
(c) By acceptance of an Individual 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 in the Securities Legend and agrees
that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h),
the following restrictions shall apply with respect to the
transfer and registration of transfer of an Individual
Certificate to a transferee that takes delivery in the form of
an Individual Certificate:
(i) The Trustee shall register the transfer of an
Individual Certificate if the requested transfer is being
made to a transferee who has provided the Trustee with a
Rule 144A Certificate.
(ii) The Trustee shall register the transfer of any
Individual Certificate if (x) the transferor has advised
the Trustee in writing that the Certificate is being
transferred to an Institutional Accredited Investor; and
(y) prior to the transfer the transferee furnishes to the
Trustee an Investment Letter (and the Trustee shall be
fully protected in so doing), provided that, if based
upon an Opinion of Counsel to the effect that the
delivery of (x) and (y) above are not sufficient to
confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and
other applicable laws, the Trustee shall as a condition
of the registration of any such transfer require the
transferor to furnish such other certifications, legal
opinions or other information prior to registering the
transfer of an Individual Certificate as shall be set
forth in such Opinion of Counsel.
(d) Subject to Subsection 5.02(h), so long as a Global Certificate
of such Class is outstanding and is held by or on behalf of the
Depository, transfers of beneficial interests in such Global
Certificate, or transfers by holders of Individual Certificates
of such Class to transferees that take delivery in the form of
beneficial interests in the Global Certificate, may be made
only in accordance with this Subsection 5.02(d) and in
accordance with the rules of the Depository:
(i) In the case of a beneficial interest in the
Global Certificate being transferred to an Institutional
Accredited Investor, such transferee shall be required to
take delivery in the form of an Individual Certificate or
Certificates and the Trustee shall register such transfer
only upon compliance with the provisions of Subsection
5.02(c)(ii).
(ii) In the case of a beneficial interest in a
Class of Global Certificates being transferred to a
transferee that takes delivery in the form of an
Individual Certificate or Certificates of such Class,
except as set forth in clause (i) above, the Trustee
shall register such transfer only upon compliance with
the provisions of Subsection 5.02(c)(i).
(iii) In the case of an Individual Certificate of a
Class being transferred to a transferee that takes
delivery in the form of a beneficial interest in a Global
Certificate of such Class, the Trustee shall register
such transfer if the transferee has provided the Trustee
with a Rule 144A Certificate.
(iv) No restrictions shall apply with respect to
the transfer or registration of transfer of a beneficial
interest in the Global Certificate of a Class to a
transferee that takes delivery in the form of a
beneficial interest in the Global Certificate of such
Class; provided that each such transferee shall be deemed
to have made such representations and warranties
contained in the Rule 144A Certificate as are sufficient
to establish that it is a QIB.
(e) Subject to Subsection 5.02(h), an exchange of a beneficial
interest in a Global Certificate of a Class for an Individual
Certificate or Certificates of such Class, an exchange of an
Individual Certificate or Certificates of a Class for a
beneficial interest in the Global Certificate of such Class and
an exchange of an Individual Certificate or Certificates of a
Class for another Individual Certificate or Certificates of
such Class (in each case, whether or not such exchange is made
in anticipation of subsequent transfer, and, in the case of the
Global Certificate of such Class, so long as such Certificate
is outstanding and is held by or on behalf of the Depository)
may be made only in accordance with this Subsection 5.02(e) and
in accordance with the rules of the Depository:
(i) A holder of a beneficial interest in a Global
Certificate of a Class may at any time exchange such
beneficial interest for an Individual Certificate or
Certificates of such Class.
(ii) A holder of an Individual Certificate or
Certificates of a Class may exchange such Certificate or
Certificates for a beneficial interest in the Global
Certificate of such Class if such holder furnishes to the
Trustee a Rule 144A Certificate.
(iii) A holder of an Individual Certificate of a
Class may exchange such Certificate for an equal
aggregate principal amount of Individual Certificates of
such Class in different authorized denominations without
any certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global
Certificate of such Class as provided herein, the Trustee shall
cancel such Individual Certificate and shall (or shall request
the Depository to) endorse on the schedule affixed to the
applicable Global Certificate (or on a continuation of such
schedule affixed to the Global Certificate and made a part
thereof) or otherwise make in its books and records an
appropriate notation evidencing the date of such exchange or
transfer and an increase in the certificate balance of the
Global Certificate equal to the certificate balance of such
Individual Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a
beneficial interest in a Global Certificate of a Class
for an Individual Certificate of such Class as provided
herein, the Trustee shall (or shall request the
Depository to) endorse on the schedule affixed to such
Global Certificate (or on a continuation of such schedule
affixed to such Global Certificate and made a part
thereof) or otherwise make in its books and records an
appropriate notation evidencing the date of such exchange
or transfer and a decrease in the certificate balance of
such Global Certificate equal to the certificate balance
of such Individual Certificate issued in exchange
therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual
Certificate issued in exchange for or upon transfer of another
Individual Certificate or of a beneficial interest in a Global
Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02 and Sections 5.06 and 5.07, the holder of
any Individual Certificate may transfer or exchange the same in
whole or in part (in an initial certificate balance equal to
the minimum authorized denomination set forth in Section
5.01(g) above or any integral multiple of $1.00 in excess
thereof) by surrendering such Certificate at the Corporate
Trust Office or at such other office as may be designated by
the Trustee for this purpose, or at the office of any transfer
agent, together with an executed instrument of assignment and
transfer satisfactory in form and substance to the Trustee in
the case of transfer and a written request for exchange in the
case of exchange. The holder of a beneficial interest in a
Global Certificate may, subject to the rules and procedures of
the Depository, cause the Depository (or its nominee) to notify
the Trustee in writing of a request for transfer or exchange of
such beneficial interest for an Individual Certificate or
Certificates. Following a proper request for transfer or
exchange, the Trustee shall, within five Business Days of such
request made at such Corporate Trust Office, sign, countersign
and deliver at such Corporate Trust Office, to the transferee
(in the case of transfer) or holder (in the case of exchange)
or send by first class mail at the risk of the transferee (in
the case of transfer) or holder (in the case of exchange) to
such address as the transferee or holder, as applicable, may
request, an Individual Certificate or Certificates, as the case
may require, for a like aggregate Fractional Undivided Interest
and in such authorized denomination or denominations as may be
requested. The presentation for transfer or exchange of any
Individual Certificate shall not be valid unless made at the
Corporate Trust Office or at such other office as may be
designated by the Trustee for this purpose by the registered
holder in person, or by a duly authorized attorney-in-fact. As
of the Closing Date, the Trustee designates its office
maintained at _____________________________________ as the
office for accepting Certificates for transfer or surrender in
accordance with this Article V.
(i) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of
a like Class and aggregate Fractional Undivided Interest, upon
surrender of the Certificates to be exchanged at any such
office or agency; provided, however, that no Certificate may be
exchanged for new Certificates unless the original Fractional
Undivided Interest represented by each such new Certificate (i)
is at least equal to the minimum authorized denomination, or
(ii) is acceptable to the Seller as indicated to the Trustee in
writing. Whenever any Certificates are so surrendered for
exchange, the Trustee shall sign and countersign and the
Trustee shall deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(j) If the Trustee so requires, every Certificate presented or
surrendered for transfer or exchange shall be duly endorsed by,
or be accompanied by a written instrument of transfer, with a
signature guarantee, in form satisfactory to the Trustee, duly
executed by the holder thereof or his or her attorney duly
authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of
Certificates.
(l) The Trustee shall cancel all Certificates surrendered for
transfer or exchange but shall retain such Certificates in
accordance with its standard retention policy or for such
further time as is required by the record retention
requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
(m) The following legend shall be placed on Certificates for each
Class of Subordinate Certificates and on the Class X
Certificates, whether upon original issuance or upon issuance
of any other Certificate of any such Class in exchange therefor
or upon transfer thereof and each transfer of Certificates of
such Classes shall be subject to the provisions thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY,
OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND
ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION
WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, XXX 00-00, XXX
00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF
A BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE
EVIDENCED BY A REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF
A HOLDER OF A PRIVATE CERTIFICATE OR CLASS X CERTIFICATE. THE
ABOVE RESTRICTIONS SHALL NOT APPLY TO THE CLASS X CERTIFICATES
EITHER: (I) IN THE EVENT THAT THE CLASS X CERTIFICATES ARE
UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED AN
EXEMPTION BY THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR
SUCH ENTITY ACTS AS A SELLING AGENT FOR SUCH CLASS X
CERTIFICATES OR (II) IN SECONDARY MARKET TRANSFERS THEREAFTER.
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Trustee,
or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there
is delivered to the Trustee such security or indemnity as it
may require to save it harmless, and (iii) the Trustee has not
received notice that such Certificate has been acquired by a
third Person, the Trustee shall sign, countersign and deliver,
in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Certificate, a new Certificate of like tenor and
Fractional Undivided Interest but in each case bearing a
different number. The mutilated, destroyed, lost or stolen
Certificate shall thereupon be canceled of record by the
Trustee and shall be of no further effect and evidence no
rights.
(b) Upon the issuance of any new Certificate under this Section
5.03, the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. Any
duplicate Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 5.04Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Seller, the
Master Servicer, the Trustee and any agent of the Seller, the Master
Servicer or the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 6.01 and for all other purposes
whatsoever. Neither the Seller, the Master Servicer, the Trustee nor any
agent of the Seller, the Master Servicer or the Trustee shall be affected
by notice to the contrary. No Certificate shall be deemed duly presented
for a transfer effective on any Record Date unless the Certificate to be
transferred is presented no later than the close of business on the fifth
Business Day preceding such Record Date.
Section 5.05 Transfer Restrictions on Residual Certificates.
(a) The Residual Certificate, or interests therein, may not be
transferred without the prior express written consent of the
Tax Matters Person and the Seller. As a prerequisite to such
consent, the proposed transferee must provide the Tax Matters
Person, the Seller and the Trustee with an affidavit that the
proposed transferee is not a Disqualified Organization (as
defined in Subsection 5.05(b)) (and, unless the Tax Matters
Person and the Seller consent to the transfer to a person who
is not a U.S. Person, an affidavit that it is a U.S. Person) as
provided in Subsection 5.05(b).
(b) No transfer, sale or other disposition of a Residual
Certificate (including a beneficial interest therein) may be
made unless, prior to the transfer, sale or other disposition
of a Residual Certificate, the proposed transferee (including
the initial purchaser thereof) delivers to the Tax Matters
Person, the Seller and the Trustee an affidavit in the form
attached hereto as Exhibit E stating, among other things, that
as of the date of such transfer (i) such transferee is not any
of (A) the United States, any state or political subdivision
thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the
foregoing (other than an instrumentality that is a corporation
all of whose activities are subject to tax under Chapter 1 of
Subtitle A of the Code and (except in the case of Xxxxxxx Mac)
a majority of whose board of directors is not selected by the
United States, or any state or political subdivision thereof),
(B) any organization that is exempt from any tax imposed by
Chapter 1 of Subtitle A of the Code, other than (x) a
tax-exempt farmers' cooperative within the meaning of Section
521 of the Code or (y) an organization that is subject to the
tax imposed by Section 511 of the Code on "unrelated business
taxable income" or (C) a corporation operating on a cooperative
basis that is engaged in furnishing electric energy or
providing telephone service to persons in rural areas (within
the meaning of Section 1381(a)(2)(C) of the Code) (any Person
described in (A), (B), or (C) being referred to herein as a
"Disqualified Organization") and that (ii) such transferee is
not acquiring such Residual Certificate for the account of a
Disqualified Organization. Neither the Tax Matters Person nor
the Seller shall consent to a transfer of a Residual
Certificate if it has actual knowledge that any statement made
in the affidavit issued pursuant to the preceding sentence is
not true. Notwithstanding any transfer, sale or other
disposition of a Residual Certificate to a Disqualified
Organization, such transfer, sale or other disposition shall be
deemed to be of no legal force or effect whatsoever and such
Disqualified Organization shall not be deemed to be a Holder of
a Residual Certificate for any purpose hereunder, including,
but not limited to, the receipt of distributions thereon. If
any purported transfer shall be in violation of the provisions
of this Subsection 5.05(b), then the prior Holder thereof
shall, upon discovery that the transfer of such Residual
Certificate was not in fact permitted by this Subsection
5.05(b), be restored to all rights as a Holder thereof
retroactive to the date of the purported transfer. None of the
Trustee, the Seller or the Tax Matters Person shall be under
any liability to any Person for any registration or transfer of
a Residual Certificate that is not permitted by this Subsection
5.05(b) or for making payments due on such Residual Certificate
to the purported Holder thereof or taking any other action with
respect to such purported Holder under the provisions of this
Agreement so long as the written affidavit referred to above
was received with respect to such transfer, and the Tax Matters
Person, the Seller or the Trustee, as applicable, had no
knowledge, that it was untrue. The prior Holder shall be
entitled to recover from any purported Holder of a Residual
Certificate that was in fact not a permitted transferee under
this Subsection 5.05(b) at the time it became a Holder all
payments made on such Residual Certificate. Each Holder of a
Residual Certificate, by acceptance thereof, shall be deemed
for all purposes to have consented to the provisions of this
Subsection 5.05(b) and to any amendment of this Agreement
deemed necessary (whether as a result of new legislation or
otherwise) by counsel of the Tax Matters Person or the Seller
to ensure that the Residual Certificate is not transferred to a
Disqualified Organization and that any transfer of such
Residual Certificate will not cause the imposition of a tax
upon the Trust or cause REMIC Assets to fail to qualify as a
REMIC.
(c) Unless the Tax Matters Person and the Seller shall have
consented in writing (which consent may be withheld in such
person's sole discretion), the Residual Certificate (including
a beneficial interest therein) may not be purchased by or
transferred to any person who is not a "United States person,"
as such term is defined in Section 7701(a)(30) of the Code.
(d) By accepting a Residual Certificate, the purchaser thereof
agrees to be a Tax Matters Person, and appoints the Trustee to
act as its agent with respect to all matters concerning the tax
obligations of the Trust, other than those matters regarding
transfer restrictions contained in this Section 5.05.
Section 5.06 Restrictions on Transferability of
Private Certificates.
(a) No offer, sale, transfer or other disposition (including
pledge) of a Private Certificate shall be made by any Holder
thereof unless registered under the Securities Act, or an
exemption from the registration requirements of the Securities
Act and any applicable state securities or "Blue Sky" laws is
available and the prospective transferee (other than the
Seller) of such Certificate signs and delivers to the Trustee
an Investment Letter, if the transferee is an Institutional
Accredited Investor, in the form set forth as Exhibit F-1
hereto, or a Rule 144A Certificate, if the transferee is a QIB,
in the form set forth as Exhibit F-2 hereto. Notwithstanding
the provisions of the immediately preceding sentence, no
restrictions shall apply with respect to the transfer or
registration of transfer of a beneficial interest in a Physical
Certificate that is a Global Certificate of a Class to a
transferee that takes delivery in the form of a beneficial
interest in the Global Certificate of such Class provided that
each such transferee shall be deemed to have made such
representations and warranties contained in the Rule 144A
Certificate as are sufficient to establish that it is a QIB. In
the case of a proposed transfer of a Private Certificate to a
transferee other than a QIB, the Trustee may require an Opinion
of Counsel that such transaction is exempt from the
registration requirements of the Securities Act. The cost of
such opinion shall not be an expense of the Trustee or the
Trust Fund.
(b) Each Private Certificate shall bear a Securities Legend.
Section 5.07 ERISA Restrictions.
(a) Subject to the provisions of subsection (b), no Certificates of
a Class of Private Certificates or the Class X Certificates may
be acquired directly or indirectly by, or on behalf of, an
employee benefit plan or other retirement arrangement which is
subject to Title I of ERISA and/or Section 4975 of the Code,
unless the proposed transferee provides a representation or
certification to the Trustee substantially in the form of
Exhibit I hereto (upon which the Trustee is authorized to rely)
to the effect that the proposed transfer and/or holding of a
Certificate and the servicing, management and operation of the
Trust: (i) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not
covered under an individual or class prohibited transaction
exemption including but not limited to Department of Labor
Prohibited Transaction Exemption ("PTE") 84-14 (Class Exemption
for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers), PTE 91-38 (Class Exemption for
Certain Transactions Involving Bank Collective Investment
Funds), PTE 90-1 (Class Exemption for Certain Transactions
Involving Insurance Company Pooled Separate Accounts), PTE
95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts) and PTCE 96-23 (Class
Exemption for Plan Asset Transactions Determined by In-House
Asset Managers and (ii) will not give rise to any additional
fiduciary duties under ERISA on the part of the Master Servicer
or the Trustee. The above restrictions shall not apply to the
Class X Certificates either: (i) in the event that the Class X
Certificates are underwritten, placed by an entity which has
been granted an exemption by the Department of Labor similar to
PTE 90-30, or such entity acts as a selling agent for such
Class X Certificates or (ii) in secondary market transfers
thereafter, and the Trustee receives a representation or
certification (upon which the Trustee is authorized to rely)
from the holder of Class X Certificates to such effect.
(b) Any Person acquiring an interest in a Book-Entry Certificate or
a Global Certificate which is a Subordinate Certificate or in a
Class X Certificate, by acquisition of such Certificate, shall
be deemed to have represented to the Trustee that it is either:
(i) not acquiring an interest in such Certificate directly or
indirectly by, or on behalf of, an employee benefit plan or
other retirement arrangement which is subject to Title I of
ERISA and/or Section 4975 of the Code, or (ii) such Person
provides a representation or certification to the Trustee to
the effect that the transfer and/or holding of an interest in
such Certificate and the servicing, management and/or operation
of the Trust and its assets: (I) will not result in any
prohibited transaction which is not covered under an individual
or class prohibited transaction exemption, including, but not
limited to, XXX 00-00, XXX 00-00, XXX 00-0, XXX 95-60 or PTE
96-23 and (II) will not give rise to any additional fiduciary
duties on the part of the Master Servicer or the Trustee. The
above restrictions shall not apply to the Class X Certificates
either: (i) in the event that the Class X Certificates are
underwritten, placed by an entity which has been granted an
exemption by the Department of Labor similar to PTE 90-30, or
such entity acts as a selling agent for such Class X
Certificates or (ii) in secondary market transfers thereafter.
(c) Any attempted or purported transfer of any Certificate in
violation of the provisions of Subsections (a) or (b) above
shall be void ab initio and such Certificate shall be
considered to have been held continuously by the prior
permitted Certificateholder. Any transferor of any Certificate
in violation of such provisions, shall indemnify and hold
harmless the Trustee from and against any and all liabilities,
claims, costs or expenses incurred by the Trustee as a result
of such attempted or purported transfer.
Section 5.08Rule 144A Information. For so long as any
Private Certificates are outstanding and are "restricted securities" within
the meaning of Rule 144(a)(3) of the Securities Act, (1) the Master
Servicer will provide or cause to be provided to any Holder of such
Certificates and any prospective purchaser thereof designated by such a
Holder, upon the request of such Holder or prospective purchaser, the
information required to be provided to such Holder or prospective purchaser
by Rule 144A(d)(4) under the Securities Act; and (2) the Master Servicer
shall update such information from time to time in order to prevent such
information from becoming false and misleading and will take such other
actions as are necessary to ensure that the safe harbor exemption from the
registration requirements of the Securities Act under Rule 144A is and will
be available for resales of such Certificates conducted in accordance with
Rule 144A.
ARTICLE VI
Payments to Certificateholders
Section 6.01 Distributions on the Certificates.
(a) Interest and principal on the Certificates will be distributed
monthly on each Distribution Date, commencing in __________
2000, in an aggregate amount equal to the Available Funds for
such Distribution Date.
(A) On each Distribution Date, the Available Funds will
be distributed in the following order of priority among
the Certificates except as otherwise noted:
first, to the interest-bearing Classes of
Senior Certificates, the Accrued Certificate Interest on
each such Class for such Distribution Date. As described
below, Accrued Certificate Interest on each such Class of
Certificates is subject to reduction in the event of
certain Net Interest Shortfalls allocable thereto. Any
Net Interest Shortfalls shall be allocated among the
Senior Certificates as provided in Section 6.01(c);
second, to the interest-bearing Classes of
Senior Certificates, any Accrued Certificate Interest
thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Available
Funds, any shortfall in available amounts being allocated
among such Classes in proportion to the amount of such
Accrued Certificate Interest remaining undistributed for
each such Class for such Distribution Date;
third, to the Senior Certificates (other than
the Class X Certificates) in reduction of the Current
Principal Amounts thereof:
(a) the Senior P&I Optimal Principal Amount, sequentially to the
Class R Certificate and then to the Class A Certificates, until
their respective Current Principal Amounts have been reduced to
zero; and
(b) the Class PO Principal Distribution Amount for such
Distribution Date, to the Class PO Certificates, until the
Current Principal Amount of the Class PO Certificates has been
reduced to zero;
fourth, the Class PO Deferred Amount for such
Distribution Date, to the Class PO Certificates;
provided, that (i) on any Distribution Date,
distributions pursuant to this priority fourth shall not
exceed the excess, if any, of (x) the Available Funds
remaining after giving effect to distributions pursuant
to clauses first through third under Section 6.01(a)(A)
above over (y) the sum of the amount of Accrued
Certificate Interest for such Distribution Date and
Accrued Certificate Interest remaining undistributed from
previous Distribution Dates on all Classes of Subordinate
Certificates then outstanding, (ii) such distributions
shall not reduce the Current Principal Amount of the
Class PO Certificates and (iii) no distribution will be
made in respect of the Class PO Deferred Amount after the
Cross-Over Date; and
fifth, sequentially, in the following order,
to the Class B, Class C, Class D, Class E, Class F and
Class G Certificates, in each case up to an amount equal
to and in the following order: (a) the Accrued
Certificate Interest thereon for such Distribution Date,
(b) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (c)
such Class's Allocable Share for such Distribution Date.
(B) On each Distribution Date after the Cross-Over Date,
distributions of principal on the outstanding Senior
Certificates (other than Class PO Certificates) will be
made pro rata among all such Senior Certificates,
regardless of the allocation, or sequential nature, of
principal payments described in priority third in Section
6.01(a)(A) above, based upon the then Current Principal
Amounts of such Senior Certificates.
(C) If, after distributions have been made pursuant to
priorities first and second under Section 6.01(a)(A)
above on any Distribution Date, the remaining Available
Funds are less than the sum of the Senior P&I Optimal
Principal Amount and the Class PO Principal Distribution
Amount for such Distribution Date, such amounts shall be
proportionately reduced, and such remaining Available
Funds will be distributed on the Senior Certificates
(other than the Class X Certificates) on the basis of
such reduced amounts. Notwithstanding any reduction in
principal distributable to the Class PO Certificates
pursuant to this paragraph, the principal balance of the
Class PO Certificates shall be reduced not only by
principal so distributed but also by the difference
between (i) principal distributable to the Class PO
Certificates in accordance with clause (b) of priority
third above and (ii) principal actually distributed to
the Class PO Certificates after giving effect to this
paragraph (such difference, the "Class PO Cash
Shortfall"). The Class PO Cash Shortfall with respect to
any Distribution Date will be added to the Class PO
Deferred Amount.
(b) No Accrued Certificate Interest will be payable with respect to
any Class of Certificates after the Distribution Date on which
the outstanding Current Principal Amount or Notional Amount of
such Certificate has been reduced to zero.
(c) If on any Distribution Date the Available Funds for the Senior
Certificates is less than the Accrued Certificate Interest on
the Senior Certificates for such Distribution Date prior to
reduction for Net Interest Shortfall and the interest portion
of Realized Losses, the shortfall will be allocated among the
holders of each Class of interest- bearing Senior Certificates
in proportion to the respective amounts of Accrued Certificate
Interest that would have been allocated thereto in the absence
of such Net Interest Shortfall or Realized Losses for such
Distribution Date. In addition, the amount of any interest
shortfalls that are covered by subordination as provided in
Section 6.03(g) will constitute unpaid Accrued Certificate
Interest and will be distributable to Holders of the
Certificates entitled to such amounts on subsequent
Distribution Dates to the extent of the Available Funds after
current interest distributions are made as required herein. Any
amounts so carried forward will not bear interest. Shortfalls
in interest payments will not be offset by a reduction in
servicing compensation of the Master Servicer or otherwise,
except to the extent of Compensating Interest Payments.
Section 6.02 [Reserved]
Section 6.03 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer
shall determine and report to the Trustee the amount of any
Realized Loss in respect of each XXX that occurred during the
immediately preceding calendar month. The Trustee shall then
with respect to each XXX allocate Realized Losses on a pro rata
basis between the PO Percentage of the Scheduled Principal
Balance of a XXX which suffered a Realized Loss and the Non-PO
Percentage of the Scheduled Principal Balance of such XXX.
(b) (A) With respect to any Determination Date, the principal
portion of each Realized Loss on a XXX shall be allocated as
follows:
(i) The PO Percentage of any such Realized Loss
shall be allocated to the Class PO Certificates; and
(ii) The Non-PO Percentage of any such Realized
Loss shall be allocated as follows:
first, to the Class G Certificates until the
Current Principal Amount thereof has been reduced to
zero;
second, to the Class F Certificates until the
Current Principal Amount thereof has been reduced to
zero;
third, to the Class E Certificates until the
Current Principal Amount thereof has been reduced to
zero;
fourth, to the Class D Certificates until the
Current Principal Amount thereof has been reduced to
zero;
fifth, to the Class C Certificates until the
Current Principal Amount thereof has been reduced to
zero;
sixth, to the Class B Certificates until the
Current Principal Amount thereof has been reduced to
zero;
seventh, to the Classes of Senior
Certificates (other than the Class X and Class PO
Certificates), pro rata, in accordance with their Current
Principal Amounts.
(B) Notwithstanding the foregoing, no such allocation of
any Realized Loss shall be made on a Distribution Date to
the extent that such allocation would result in the
reduction of the aggregate Current Principal Amounts of
all the Certificates as of such Distribution Date, after
giving effect to all distributions and prior allocations
of Realized Losses on such date, to an amount less than
the aggregate Scheduled Principal Balance of the XXXx as
of the first day of the month of such Distribution Date
(such limitation, the "Loss Allocation Limitation").
(c) Any Realized Losses allocated to a Class of Certificates
pursuant to Subsection 6.03(b) shall be allocated among the
Certificates of such Class in proportion to their respective
Current Principal Amounts. Any allocation of Realized Losses
pursuant to this Subsection 6.03(c) shall be accomplished by
reducing the Current Principal Amount of the related
Certificates on the related Distribution Date in accordance
with Subsection 6.03(d).
(d) Realized Losses allocated in accordance with this Section 6.03
shall be allocated on the Distribution Date in the month
following the month in which such loss was incurred and, in the
case of the principal portion thereof, after giving effect to
distributions made on such Distribution Date, except that the
aggregate amount of Realized Losses to be allocated to the
Class PO Certificates on any Distribution Date through the
Cross-Over Date will be taken into account in determining
distributions in respect of the Class PO Deferred Amount for
such Distribution Date.
(e) On each Distribution Date, the Trustee shall determine the
Subordinate Certificate Writedown Amount, if any. Any such
Subordinate Certificate Writedown Amount shall effect a
corresponding reduction in the Current Principal Amount of (i)
if prior to the Cross-Over Date, the Current Principal Amounts
of the Subordinate Certificates in the reverse order of their
numerical Class designations and (ii) from and after the
Cross-Over Date, the Senior Certificates, pro rata based on
their respective Current Principal Amounts, which reduction
shall occur on such Distribution Date after giving effect to
distributions made on such Distribution Date.
(f) On each Distribution Date, on or prior to the Cross-Over Date
the Trustee shall determine the Class PO Deferred Payment
Writedown Amount. Any such Class PO Deferred Payment Writedown
Amount shall effect a corresponding reduction in the Current
Principal Amount of the Subordinate Certificates in the reverse
order of their numerical Class designations.
(g) The interest portion of any Realized Losses on XXXx occurring
on or prior to the Cross-Over Date will not be allocated among
any Certificates, but will reduce the amount of Available Funds
on the related Distribution Date. As a result of the
subordination of the Subordinate Certificates in right of
distribution, such Realized Losses will be borne first by the
Subordinate Certificates in inverse order of their numerical
Class designations.
Section 6.04 [Reserved]
Section 6.05 Payments.
(a) [Reserved].
(b) On each Distribution Date, other than the final Distribution
Date, the Trustee shall distribute to each Certificateholder of
record on the directly preceding Record Date the
Certificateholder's pro rata share of its Class (based on the
aggregate Fractional Undivided Interest represented by such
Holder's Certificates) of all amounts required to be
distributed on such Distribution Date to such Class. The
Trustee shall calculate such amounts based upon the information
provided the Master Servicer pursuant to Subsection 6.07(b).
(c) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled
thereto at the address appearing in the Certificate Register or
(ii) upon receipt by the Trustee on or before the fifth
Business Day preceding the Record Date of written instructions
from a Certificateholder holding Certificates representing an
initial aggregate Current Principal Amount and/or Notional
Amount of not less than $1,000,000 by wire transfer to a United
States dollar account maintained by the payee at any United
States depository institution with appropriate facilities for
receiving such a wire transfer; provided, however, that the
final payment in respect of each Class of Certificates will be
made only upon presentation and surrender of such respective
Certificates at the office or agency of the Trustee specified
in the notice to Certificateholders of such final payment.
Section 6.06 Statements to Certificateholders. (a)
Concurrently with each distribution to Certificateholders, the Trustee
shall forward by first-class mail to each Certificateholder, with a copy to
the Seller, the Master Servicer and the Rating Agencies, a statement
setting forth the following information, expressed with respect to clauses
(i), (ii), (iii), (iv), (v) and (vii) in the aggregate and as a Fractional
Undivided Interest representing an initial Current Principal Amount of
$1,000 or in the case of the Class X Certificates, a Notional Amount of
$1,000 or in the case of the Class R Certificate, an initial Current
Principal Amount of $100:
(i) the Current Principal Amount (or Notional
Amount in the case of the Class X Certificate) of each
Class of Certificates immediately prior to such
Distribution Date [Appreciation Certificates?];
(ii) the amount of the distribution allocable to
principal on each applicable Class of Certificates;
(iii) the aggregate amount of interest and
Additional Interest accrued at the related Pass-Through
Rate with respect to each Class of interest-bearing
Certificates during the related Interest Accrual Period;
(iv) the Net Interest Shortfall and any other
adjustments to interest at the related Pass-Through Rate
necessary to account for any difference between interest
accrued and aggregate interest distributed with respect
to each Class of interest-bearing Certificates;
(v) the amount of the distribution allocable to
interest and Additional Interest on each interest-bearing
Class of Certificates [Appreciation Share?];
(vi) the Pass-Through Rate for each Class of
interest-bearing Certificates with respect to such
Distribution Date;
(vii) the Current Principal Amount (or Notional
Amount in the case of the Class X Certificates) of each
Class of Certificates after such Distribution Date
[Appreciation Certificates?];
(viii)the amount of any Monthly Advances,
Compensating Interest Payments and unreimbursed advances
by the Master Servicer included in such distribution;
(ix) the amount of any Realized Losses during the
related Prepayment Period and cumulatively since the
Cut-off Date and the amount and source (separately
identified) of any distribution in respect thereof
included in such distribution;
(x) the amount of Scheduled Principal and Principal
Prepayments, (including but separately identifying the
principal amount of principal prepayments, Insurance
Proceeds, the purchase price in connection with the
purchase of XXXx, cash deposits in connection with
substitutions of XXXx and Net Liquidation Proceeds) and
the number and principal balance of XXXx purchased or
substituted for during the relevant period and
cumulatively since the Cut-off Date;
(xi) the number of XXXx (excluding REO Property)
remaining in the Trust Fund as of the end of the related
Due Period;
(xii) information regarding any XXX delinquencies
as of the end of the related Due Period, including the
aggregate number, aggregate Outstanding Principal Balance
and aggregate Scheduled Principal Balance of XXXx
delinquent one month, two months and three months or
more;
(xiii)the number of XXXx in the foreclosure process
as of the end of the related Due Period and the aggregate
Outstanding Principal Balance of such XXXx;
(xiv) the number and aggregate Outstanding
Principal Balance of all XXXx as to which the Mortgaged
Property was REO Property as of the end of the related
Due Period;
(xv) the book value (the sum of (A) the Outstanding
Principal Balance of the XXX, (B) accrued interest
through the date of foreclosure and (C) foreclosure
expenses) of any REO Property; provided that, in the
event that such information is not available to the
Master Servicer and the Trustee on the Distribution Date,
such information shall be furnished promptly after it
becomes available;
(xvi) the amount of Realized Losses allocated to
each Class of Certificates since the prior Distribution
Date and in the aggregate for all prior Distribution
Dates;
(xvii) the then applicable Senior Percentage, Senior
Prepayment Percentage, Subordinate Percentage and
Subordinate Prepayment Percentage;
(xviii) the percentage of principal payments on the
SAM's, if any, which each Class will be entitled to
receive on the following Distribution Date; and
(xix) the percentage of Principal Prepayments on
the SAM's, if any, which each Class will be entitled to
receive on the following Distribution Date.
The information set forth above shall be calculated, or
reported, as the case may be, by the Trustee based on data provided by the
Master Servicer pursuant to Section 6.07(b) and, with respect to prior
periods, Section 6.06, upon which the Trustee may conclusively rely. The
information furnished by the Master Servicer shall be sufficient for the
Trustee to calculate any payments or statements it is required to make.
(b) By April 30 of each year beginning in 2000, the Trustee will
furnish a report to each Holder of the Certificates of record
at any time during the prior calendar year as to the aggregate
of amounts reported pursuant to subclauses (a)(ii) and (a)(v)
above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other
customary information as the Master Servicer determines and
advises the Trustee to be necessary and/or to be required by
the Internal Revenue Service or by a federal or state law or
rules or regulations to enable such Holders to prepare their
tax returns for such calendar year. Copies of such report shall
also be furnished to the Master Servicer. Such obligations
shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the
Trustee pursuant to the requirements of the Code.
The Master Servicer shall supply to the Trustee in a
timely manner the information required for the statements described above
which, where appropriate, shall be the information from which the Trustee
can calculate the statements it is required to make.
Section 6.07 Reports to the Trustee and the Master
Servicer. (a) Not later than 15 days after each Distribution Date, the
Trustee shall forward to the Master Servicer a statement setting forth the
status of the Distribution Account as of the close of business on the last
day of the month of the Distribution Date and showing, for the month
covered by such statement, deposits in or withdrawals from the Distribution
Account.
(b) On or before the Determination Date, the Master Servicer shall
provide to the Trustee (and with respect to the information
contained in subclause (xiv) hereof, the Seller), with respect
to the XXXx and the REO Properties, respectively, a Loan
Summary and Remittance Report in such electronic format as the
Trustee may reasonably request and in such hardcopy format as
the Master Servicer and the Trustee shall agree which, if there
are Sub-Servicers, shall be based upon reports from
Sub-Servicers, if any, received by the Master Servicer on or
before the seventh Business Day of such month with respect to
the XXXx and REO Properties and containing the following
information (in respect of the REO Properties, only such
information which is applicable):
(i) Aggregate deposits to and withdrawals from the
Distribution Account since the date of the prior
statement, stated separately for each category of deposit
specified in Section 4.02 and each category of withdrawal
specified in Section 4.03, indicating separately the
aggregate of amounts withdrawn which are not applicable
to a particular XXX;
(ii) Amount of Available Funds expected for the
related Distribution Date and attributable to each of the
following categories:
(A) Scheduled Principal;
(B) Principal Prepayments (stated separately for
(u) partial prepayments, (v) full prepayments, (w) Net
Liquidation Proceeds, stating Liquidation Proceeds and
Liquidation Expenses separately), (x) Insurance Proceeds,
(y) the purchase price in connection with the purchase of
a XXX, and (z) any cash deposit in connection with the
substitution of a XXX;
(C) regularly scheduled interest on the XXXx;
(D) Monthly Advances made by the Master Servicer;
(E) Distribution Account Advances;
(F) Compensating Interest Payments; and
(G) reimbursements in connection with losses on
Permitted Investments.
(iii) Aggregate Outstanding Principal Balances of
the XXXx as of the related Due Date, without giving
effect to payments due on such date;
(iv) Realized Losses for the prior month and in the
aggregate from the Closing Date;
(v) [intentionally omitted];
(vi) [intentionally omitted];
(vii) Aggregate Scheduled Principal Balance of the
XXXx as of the related Due Date;
(viii) Book value of any collateral acquired by
means of foreclosure, grant of deed in lieu of
foreclosure or otherwise in respect of any XXX;
(ix) Number and aggregate principal balance of XXXx
which are 30, 60, 90 and 120 or more days delinquent as
calculated by the Master Servicer, those which are in
foreclosure, those with respect to which the related
Mortgagor has had an order for relief entered in
connection with bankruptcy proceeding and those which are
REO Property;
(x) Interest Shortfall with respect to the related
Distribution Date and portion thereof resulting from
Voluntary Principal Prepayments in full or the provisions
of the Relief Act;
(xi) [intentionally omitted]
(xii) Amount, if any, by which the aggregate of
Scheduled Payments on the XXXx that were due on the
related Due Date and delinquent, other than as a result
of the Relief Act, as of the Determination Date exceeds
the sum of the Monthly Advances to be made by the Master
Servicer and Distribution Account Advances for such
Distribution Date;
(xiii) Aggregate Master Servicing Fee for the
related Due Period;
(xiv) Such other information regarding each XXX,
including, but not limited to, an updated schedule of the
Scheduled Principal Balances of the XXXx as of the
related Due Date, in such electronic format, as may be
reasonably requested by the Trustee and, if requested, in
such hardcopy or electronic format as the Master Servicer
and the Trustee shall agree and, with respect to
information to be provided to the Seller may be in the
"Salomon 500" format and should be sent to the attention
of __________;
Section 6.08 Monthly Advances. If the Scheduled Payment
(together with any advances from any Sub-Servicers) on a XXX that was due
on a related Due Date and is delinquent other than as a result of
application of the Relief Act exceeds the amount deposited in the
Distribution Account which will be used for a Distribution Account Advance
with respect to such XXX, the Master Servicer will deposit in the
Distribution Account not later than the Advancing Date immediately
preceding the related Distribution Date an amount equal to such deficiency
net of the related Master Servicing Fee for such XXX except to the extent
the Master Servicer determines any such advance to be nonrecoverable from
late payments Liquidation Proceeds, Insurance Proceeds or future payments
on the XXX for which such Monthly Advance was made. Subject to the
foregoing, the Master Servicer shall continue to make such advances through
the date that the related Mortgaged Property has, in the judgment of the
Master Servicer, been completely liquidated. Any amount used as a
Distribution Account Advance shall be replaced by the Master Servicer by
deposit in the Distribution Account on or before any future date on which
and to the extent that funds in the Distribution Account on such date are
less than the amount required to be transferred by the Master Servicer to
such subaccount of the Distribution Account. If applicable, on the fifth
Business Day preceding each Distribution Date, the Master Servicer shall
present an Officer's Certificate to the Trustee (i) stating that the Master
Servicer elects not to make a Monthly Advance in a stated amount and (ii)
detailing the reason it deems the advance to be nonrecoverable.
Section 6.09Compensating Interest Payments. The Master
Servicer shall deposit in the Distribution Account not later than the
Advancing Date immediately preceding the related Distribution Date an
amount equal to the lesser of (i) the aggregate amounts determined pursuant
to subclauses (a) and (b) of the definition of Interest Shortfall for the
related Distribution Date and (ii) the Master Servicing Fee for such
Distribution Date (other than the portion used to cover lender paid primary
mortgage insurance premiums) (such amount, the "Compensating Interest
Payment"). The Master Servicer shall not be entitled to any reimbursement
of any Compensating Interest Payment.
Section 6.10Reports of Foreclosures and Abandonment of
Mortgaged Property. Each year the Master Servicer shall report or cause to
be reported to the Internal Revenue Service foreclosures and abandonments
of any Mortgaged Property as required by Section 6050J of the Code and
shall provide a copy of such report to the Trustee.
ARTICLE VII
The Master Servicer
Section 7.01 Liabilities of the Master Servicer. The
Master Servicer shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by it herein.
Only the Master Servicer, any successor Master Servicer or the Trustee
acting as Master Servicer shall be liable with respect to the servicing of
the XXXx and the REO Property for actions taken by any such Person in
contravention of the Master Servicer's duties hereunder.
Section 7.02 Merger or Consolidation of the Master
Servicer. (a) The Master Servicer will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the XXXx and
to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger 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 of the Master Servicer hereunder,
without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the
contrary notwithstanding. Such entity shall also be qualified
to sell mortgage loans and shared appreciation mortgage loans
to and service mortgage loans and shared appreciation mortgage
loans on behalf of Xxxxxxx Mae and Xxxxxx Xxx. In addition,
such merger, consolidation or succession may not adversely
affect the then current rating or ratings assigned to any Class
of Certificates by either Rating Agency.
Section 7.03 Indemnification of the Trustee. The Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any claim, loss, liability or expense incurred on their
part, arising out of any breach by the Master Servicer of its obligations
under this Agreement, including the costs and expenses (including
reasonable legal fees and expenses) of defending themselves; provided that
with respect to any such claim, the Trustee shall have given the Master
Servicer and the Seller written notice thereof promptly after the Trustee
shall have with respect to such claim knowledge thereof. The Master
Servicer shall assume the defense of any claim for which an Indemnified
Person is entitled to indemnification pursuant to this Section 7.03, and
the Master Servicer shall pay all expenses in connection therewith,
including reasonable legal fees, and shall promptly pay, discharge and
satisfy any judgment or decree which may be rendered against an Indemnified
Person in respect of such claim.
Section 7.04Limitation on Liability of the Master
Servicer and Others. Subject to the obligation of the Master Servicer to
indemnify the Indemnified Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any
liability to the Indemnified Persons, the Seller, the Trust
Fund or the Certificateholders for taking any action or for
refraining from taking 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 breach of warranties or
representations made herein or any liability which would
otherwise be imposed by reason of such Person's willful
misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and
duties hereunder.
(b) 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.
(c) The Master Servicer and any director, officer, employee or
agent of the Master Servicer shall be indemnified by the Trust
and held harmless thereby against any loss, liability or
expense incurred in connection with any legal proceedings
relating to this Agreement or the Certificates (including
reasonable legal fees and disbursements of counsel), other than
(i) any loss, liability or expense related to its failure to
perform its duties in compliance with this Agreement (except as
any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and (ii) any loss,
liability or expense incurred by reason of such Person's
willful misfeasance, bad faith or negligence in the performance
of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder.
(d) The Master Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental
to its duties under this Agreement and that in its opinion may
involve it in any expense or liability; provided, however, the
Master Servicer may in its discretion undertake any such action
which it may deem necessary or desirable with 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 Distribution
Account as provided by Subsection 4.03(a). Nothing in this
Subsection 7.04(d) shall affect the Master Servicer's
obligation to supervise, or to take such actions as are
necessary to ensure, the servicing and administration of the
XXXx pursuant to Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to
this Agreement, the Master Servicer shall not be required to
investigate or make recommendations concerning potential
liabilities which the Trust might incur as a result of such
course of action by reason of the condition of the Mortgaged
Properties but shall give notice to the Trustee if it has
notice of such potential liabilities.
Section 7.05 Master Servicer Not to Resign. Except as
provided in Section 7.07, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except upon a determination
that any such duties hereunder are no longer permissible under applicable
law and such impermissibility cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Independent Counsel to such effect delivered to the Trustee. No
such resignation by the Master Servicer shall become effective until the
Trustee or a successor to the Master Servicer reasonably satisfactory to
the Trustee shall have assumed the responsibilities and obligations of the
Master Servicer in accordance with Section 8.02 hereof. The Trustee shall
notify the Rating Agencies of the resignation of the Master Servicer.
Section 7.06 [Reserved]
Section 7.07 Sale and Assignment of Master Servicing. The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service XXXx for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth of
not less than $10,000,000 (unless otherwise approved by each Rating Agency
pursuant to clause (ii) below); (c) shall be reasonably satisfactory to the
Trustee (as evidenced in a writing signed by the Trustee) as having a
comparable servicing ability to that of the Master Servicer on the Closing
Date; (d) shall execute and deliver to the Trustee an agreement, in form
and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it
as master servicer under this Agreement and any custodial agreement from
and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed
successor to the Master Servicer and each Rating Agency's rating of the
Certificates in effect immediately prior to such assignment, sale and
delegation will not be downgraded, qualified or withdrawn as a result of
such assignment, sale and delegation, as evidenced by a letter to such
effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the Trustee an Officer's Certificate and an Opinion of Independent Counsel,
each stating that all conditions precedent to such action under this
Agreement have been completed and such action is permitted by and complies
with the terms of this Agreement. No such assignment or delegation shall
affect any liability of the Master Servicer arising prior to the effective
date thereof.
ARTICLE VIII
Default
Section 8.01Events of Default. "Event of Default,"
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) The Master Servicer fails to cause to be
deposited in the Distribution Account any amount so
required to be deposited pursuant to this Agreement, and
such failure continues unremedied for a period of two
Business Days after the date such deposit was required to
be made; or
(ii) The Master Servicer fails to observe or
perform in any material respect any other covenants and
agreements set forth in the Certificates or this
Agreement to be performed by it, which covenants and
agreements materially affect the rights of
Certificateholders, and such failure continues unremedied
for a period of 60 days after the date on which written
notice of such failure, properly requiring the same to be
remedied, shall have been given to the Master Servicer by
the Trustee or to the Master Servicer and the Trustee by
the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the
Trust Fund; or
(iii) There is entered against the Master Servicer
a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, and the
continuance of any such decree or order is unstayed and
in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer
under any applicable insolvency or reorganization statute
and the petition is not dismissed within 60 days after
the commencement of the case; or
(iv) The Master Servicer consents to the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or
relating to the Master Servicer or substantially all of
its property; or the Master Servicer admits in writing
its inability to pay its debts generally as they become
due, files a petition to take advantage of any applicable
insolvency or reorganization statute, makes an assignment
for the benefit of its creditors, or voluntarily suspends
payment of its obligations; or
(v) The Master Servicer assigns or delegates its
duties or rights under this Agreement in contravention of
the provisions permitting such assignment or delegation
under Sections 7.05 or 7.07.
In each and every such case, so long as such Event of Default with
respect to the Master Servicer shall not have been remedied, either the
Trustee or the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 25% of the principal of the Trust Fund,
by notice in writing to the Master Servicer (and to the Trustee if given by
such Certificateholders), with a copy to the Rating Agencies, may terminate
all of the rights and obligations (but not the liabilities) of the Master
Servicer under this Agreement and in and to the XXXx and/or the REO
Property serviced by the Master Servicer and the proceeds thereof. Upon the
receipt by the Master Servicer of the written notice, all authority and
power of the Master Servicer under this Agreement, whether with respect to
the Certificates, the XXXx, REO Property or under any other related
agreements, including the Sub-Servicing Agreements (but only to the extent
that such other agreements relate to the XXXx or REO Property) shall,
subject to Section 8.02, automatically and without further action pass to
and be vested in the Trustee pursuant to this Section 8.01; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of
such notice of termination, whether to complete the transfer and
endorsement or assignment of the XXXx and related documents, or otherwise.
The Master Servicer agrees to cooperate with the Trustee in effecting the
termination of the Master Servicer's rights and obligations hereunder,
including, without limitation, the transfer to the Trustee of (i) the
property and amounts which are then or should be part of the Trust or which
thereafter become part of the Trust; (ii) originals or copies of all
documents of the Master Servicer reasonably requested by the Trustee to
enable it to assume the Master Servicer's duties thereunder; and (iii) the
rights and obligations of the Master Servicer under any Sub-Servicing
Agreements with respect to the XXXx. In addition to any other amounts which
are then, or, notwithstanding the termination of its activities under this
Agreement, may become payable to the Master Servicer under this Agreement,
the Master Servicer shall be entitled to receive, out of any amount
received on account of a XXX or REO Property, that portion of such payments
which it would have received as reimbursement pursuant to Section 3.14 if
notice of termination had not been given. The termination of the rights and
obligations of the Master Servicer shall not affect any obligations
incurred by the Master Servicer prior to such termination.
Section 8.02 Trustee to Act; Appointment of Successor.
Upon the receipt by the Master Servicer of a notice of termination pursuant
to Section 8.01 or an Opinion of Independent Counsel pursuant to Section
7.05 to the effect that the Master Servicer is legally unable to act or to
delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master
Servicer in its capacity under this Agreement and the transactions set
forth or provided for herein and shall thereafter be subject to all the
responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Trustee (i) shall be under no
obligation to purchase any XXX pursuant to Section 10.01; and (ii) shall
have no obligation whatsoever with respect to any liability incurred by the
Master Servicer (other than to make advances deemed recoverable and not
previously made) at or prior to the time of receipt by the Master Servicer
of such notice or by the Trustee of such Opinion of Independent Counsel,
including any liabilities associated with either Master Servicer's failure
to modify its computer and any other systems in a manner such that such
Master Servicer can service the related XXXx in accordance with the terms
of this Agreement on and after January 1, 2000. As compensation therefor,
the Trustee shall be entitled to all funds relating to the XXXx which the
Master Servicer would have been entitled to retain if the Master Servicer
had continued to act hereunder, except for those amounts due the Master
Servicer as reimbursement for advances previously made or expenses
previously incurred. Notwithstanding the above, the Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Xxxxxx Xxx or
Xxxxxxx Mac-approved servicer, and with respect to a successor to the
Master Servicer only, having a net worth of not less than $10,000,000, as
the successor to the Master Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder. Pending appointment of a successor to the Master
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee
may make such arrangements for the compensation of such successor out of
payments on the XXXx as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Trustee under this Subsection 8.02(a), and that such successor shall
undertake and assume the obligations of the Trustee to pay compensation to
any third Person acting as an agent or independent contractor in the
performance of master servicing responsibilities hereunder. The Trustee and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
(a) If the Trustee shall succeed to any duties of the Master
Servicer respecting the XXXx as provided herein, it shall do so
in a separate capacity and not in its capacity as Trustee and,
accordingly, the provisions of Article IX shall be inapplicable
to the Trustee in its duties as the successor to the Master
Servicer in the servicing of the XXXx (although such provisions
shall continue to apply to the Trustee in its capacity as
Trustee); the provisions of Article VII, however, shall apply
to it in its capacity as successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any
termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to the
Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall
transmit by mail to all Certificateholders, within 60 days after the
occurrence of any Event of Default known to the Trustee, unless such Event
of Default shall have been cured, notice of each such Event of Default
hereunder known to the Trustee. The Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 51% of the Trust
Fund may, on behalf of all Certificateholders, waive any default by the
Master Servicer in the performance of its obligations hereunder and the
consequences thereof, except a default in the making of or the causing to
be made any required distribution on the Certificates. Upon any such waiver
of a past default, such default shall be deemed to cease to exist, and any
Event of Default arising therefrom shall be deemed to have been timely
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. The Master Servicer shall give
notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights
under this Agreement, the Trustee will afford such Certificateholders
access during business hours to the most recent list of Certificateholders
held by the Trustee.
ARTICLE IX
Concerning the Trustee
Section 9.01Duties of Trustee. (a) The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement
as duties of the Trustee. If an Event of Default has occurred and has not
been cured or waived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement and use the same degree of care and
skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which
are specifically required to be furnished to the Trustee
pursuant to any provision of this Agreement, the Trustee 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
resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Master Servicer
hereunder.
(c) The Trustee shall make monthly distributions and the final
distribution to the Certificateholders as provided in Sections
6.01 and 10.01 herein.
(d) 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) Prior to the occurrence of an Event of Default,
and after the curing or waiver of all such Events of
Default which may have occurred, the duties and
obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be liable for an error
of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the
Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 25% of the Trust
Fund, if such action or non-action relates to the time,
method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust
or other power conferred upon the Trustee, under this
Agreement; and
(iv) The Trustee shall not be required to take
notice or be deemed to have notice or knowledge of any
default or Event of Default unless a Responsible Officer
of the Trustee's corporate trust department shall have
actual knowledge thereof. In the absence of such notice,
the Trustee may conclusively assume there is no such
default or Event of Default.
The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in 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 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.
(e) All funds received by the Trustee and required to be deposited
in the Distribution Account pursuant to this Agreement will be
promptly so deposited by the Trustee.
Section 9.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 9.01:
(i) The Trustee may rely and shall be protected in
acting or refraining from acting in reliance on any
resolution, Officer's Certificate, certificate of a
Servicing Officer, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete
authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement, other than its obligation to give notices
pursuant to this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the
Certificateholders pursuant to the provisions of this
Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be
incurred therein or thereby. Nothing contained herein
shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee's corporate trust
department has actual knowledge (which has not been
cured) to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of
care and skill in their exercise, as a prudent person
would exercise under the circumstances in the conduct of
his own affairs;
(iv) The Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all Events of
Default which may have occurred, the Trustee shall not be
bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates
evidencing Fractional Undivided Interests aggregating not
less than 25% of the Trust Fund and provided that 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, 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 as a condition to taking any such
action. The reasonable expense of every such examination
shall be paid by the Certificateholders requesting the
investigation;
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or through agents or attorneys; provided,
however, that the Trustee may not appoint any agent to
perform its custodial or paying agent functions under
this Agreement without the express written consent of the
Master Servicer, which consent will not be unreasonably
withheld. The Trustee shall not be liable or responsible
for the misconduct or negligence of any of the Trustee's
agents or attorneys or a custodian or paying agent
appointed hereunder by the Trustee with due care and,
when required, with the consent of the Master Servicer;
(vii) Should the Trustee deem the nature of any
action required on its part, other than a payment or
transfer under Subsection 4.02(b) or Section 4.03, to be
unclear, the Trustee may require prior to such action
that it be provided by the Master Servicer with
reasonable further instructions;
(viii)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
accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) The Trustee shall not be required to give any
bond or surety with respect to the execution of the trust
created hereby or the powers granted hereunder;
(x) The Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any
condition requiring the repurchase of any XXX by the
Seller pursuant to this Agreement or the eligibility of
any XXX for purposes of this Agreement; and
(xi) To the extent the Trustee has not received a
required remittance from the Master Servicer on or prior
to a Distribution Date, it shall not be required to make
the distribution provided for in Section 6.01 until it
has received such funds.
Section 9.03 Trustee Not Liable for Certificates or XXXx.
The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) shall be
taken as the statements of the Seller, and the Trustee shall have no
responsibility for their correctness. The Trustee makes no representation
as to the validity or sufficiency of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of
any XXX except as expressly provided in Sections 2.02 and 2.05 hereof. The
Trustee's signature and countersignature (or countersignature of its agent)
on the Certificates shall be solely in its capacity as Trustee and shall
not constitute the Certificates an obligation of the Trustee in any other
capacity. The Trustee shall not be accountable for the use or application
by the Seller of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Seller
with respect to the XXXx. Subject to the provisions of Section 2.05, the
Trustee shall not be responsible for the legality or validity of this
Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or
intended to be issued hereunder. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity
and enforceability of any Mortgage or any XXX, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Fund or
its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. 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 9.04 Trustee May Own Certificates. The Trustee in
its individual capacity or in any capacity other than as Trustee hereunder
may become the owner or pledgee of any Certificates with the same rights it
would have if it were not Trustee, and may otherwise deal with the parties
hereto.
Section 9.05 Trustee's Fees and Expenses. (a) The Trustee
will be paid the Trustee's Fee each calendar month from the Distribution
Account, pursuant to Subsection 4.03(b). The Trust Fund will be liable for
the Trustee's expenses, including all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in the
administration of the trusts hereunder as set forth in a fee letter sent by
the Trustee to the Seller (including the reasonable compensation, expenses
and disbursements of its counsel) except any such expense, disbursement or
advance as may arise from its negligence or intentional misconduct or which
is the responsibility of the Certificateholders or the Master Servicer
hereunder. Such compensation and reimbursement obligation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust.
(b) To the extent not otherwise indemnified against by the Master
Servicer hereunder, the Trust shall indemnify the Indemnified
Persons for, and will hold them harmless against, any loss,
liability or expense incurred on their part, arising out of, or
in connection with, this Agreement and the Certificates,
including the costs and expenses (including reasonable legal
fees and expenses) of defending themselves against any such
claim other than (i) any loss, liability or expense related to
such Indemnified Person's failure to perform such Indemnified
Person's duties in strict compliance with this Agreement
(except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and (ii) any
loss, liability or expense incurred by reason of such
Indemnified Person's willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. This
indemnity shall survive the resignation or removal of the
Trustee and the termination of this Agreement.
Section 9.06 Eligibility Requirements for Trustee. (a) The
Trustee and any successor Trustee shall during the entire duration of this
Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus and undivided
profits of at least $[40,000,000] or, in the case of a successor Trustee,
$[50,000,000], subject to supervision or examination by federal or state
authority and, in the case of a successor Trustee other than pursuant to
Section 9.10, rated in one of the three highest long-term debt categories
of, or otherwise acceptable to, each of the Rating Agencies. The Trustee
shall not be an Affiliate of the Master Servicer, unless the Trustee acts
as successor Master Servicer hereunder. If the Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.06, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.08.
Section 9.07 Insurance. The Trustee, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance
(which may be collectively satisfied by a "Financial Institution Bond"
and/or a "Bankers' Blanket Bond"). All such insurance shall be in amounts,
with standard coverage and subject to deductibles, as are customary for
insurance typically maintained by banks which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the
Trustee as to the Trustee's compliance with this Section 9.07 shall be
furnished to the Master Servicer or any Certificateholder upon reasonable
written request.
Section 9.08 Resignation and Removal of the Trustee. (a)
The Trustee may at any time resign and be discharged from the Trust hereby
created by giving written notice thereof to the Master Servicer, with a
copy to the Rating Agencies. Upon receiving such notice of resignation, the
Master Servicer shall promptly appoint a successor Trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered
to each of the resigning Trustee and the successor Trustee. If no successor
Trustee shall have been so appointed and 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 the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Master Servicer
or if at any time the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Master Servicer shall be
entitled to remove the Trustee and appoint a successor Trustee
by written instrument, in triplicate, one copy of which
instrument shall be delivered to each of the Trustee so removed
and the successor Trustee.
(c) The Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund may
at any time remove the Trustee and appoint a successor Trustee
by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one
complete set of which instruments shall be delivered to each of
the Master Servicer, the Trustee so removed and the successor
so appointed.
(d) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this
Section 9.08 shall become effective except upon appointment of
and acceptance of such appointment by the successor Trustee as
provided in Section 9.09.
Section 9.09 Successor Trustee. (a) Any successor Trustee
appointed as provided in Section 9.08 shall execute, acknowledge and
deliver to the Master Servicer and to its predecessor Trustee an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Trustee shall then 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 after payment of its outstanding fees and
expenses promptly deliver to the successor Trustee all assets and records
of the Trust held by it hereunder, and the Master Servicer and the
predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee all such rights, powers,
duties and obligations.
(b) No successor Trustee shall accept appointment as provided in
this Section 9.09 unless at the time of such acceptance such
successor Trustee shall be eligible under the provisions of
Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 9.09, the successor Trustee shall mail
notice of the succession of such Trustee hereunder to all
Certificateholders at their addresses as shown in the
Certificate Register and to the Rating Agencies. The Master
Servicer shall pay the cost of any mailing by the successor
Trustee.
Section 9.10 Merger or Consolidation of Trustee. Any state
bank or trust company or national banking association into which the
Trustee may be merged or converted or with which it may be consolidated or
any state bank or trust company or national banking association resulting
from any merger, conversion or consolidation to which the Trustee shall be
a party, or any state bank or trust company or national banking association
succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided such
state bank or trust company or national banking association shall be
eligible under the provisions of Section 9.06. Such succession shall be
valid without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate
Trustee. (a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or property constituting the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee and the Master Servicer to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such
Person or Persons, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 9.11, such
powers, duties, obligations, rights and trusts as the Master Servicer and
the Trustee may consider necessary or desirable.
(b) If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a written
request so to do, or in case an Event of Default with respect
to the Master Servicer shall have occurred and be continuing,
the Trustee shall have the power to make such appointment
without the Master Servicer.
(c) No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor Trustee under
Section 9.06 hereunder and no notice to Certificateholders of
the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.11, all rights, powers,
duties and obligations conferred or imposed upon the Trustee
and required to be conferred on such co-trustee shall be
conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee
at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Agreement and the conditions of
this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Trustee, its agent or
attorney-in-fact, with full power and authority, to do any
lawful act under or with respect to this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed,
all of its estates, properties rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor
Trustee.
(g) No trustee under this Agreement shall be personally liable by
reason of any act or omission of another trustee under this
Agreement. The Master Servicer and the Trustee acting jointly
may at any time accept the resignation of or remove any
separate trustee or co-trustee, except that following the
occurrence of any Event of Default which has not been cured,
the Trustee acting alone may accept the resignation of or
remove any separate trustee or co-trustee.
Section 9.12 Master Servicer Shall Provide Information as
Reasonably Required. The Master Servicer shall furnish to the Trustee,
during the term of this Agreement, such periodic, special, or other reports
or information (and in such electronic format or other means acceptable to
the Trustee) as may reasonably be requested by the Trustee in order to
fulfill its duties and obligations under this Agreement.
Section 9.13 Federal Information Returns and Reports to
Certificateholders. (a) For Federal income tax purposes, the taxable year
of the REMIC Assets shall be a calendar year and the Trustee shall maintain
or cause the maintenance of the books of each of the REMIC Assets on the
accrual method of accounting.
(b) The Trustee shall prepare and file or cause to be filed with
the Internal Revenue Service Federal tax information returns
with respect to each of the REMIC Assets, the Trust Fund, if
applicable, and the Certificates containing such information
and at the times and in the manner as may be required by the
Code or applicable Treasury regulations, and shall furnish to
each Holder of Certificates at any time during the calendar
year for which such returns or reports are made such statements
or information at the times and in the manner as may be
required thereby. In connection with the foregoing, the Trustee
shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the
holders of regular interests in each of the REMIC Assets (the
"REMIC Reporting Agent") as required by IRS Form 8811. The
Trustee shall make the elections to treat each of the REMIC
Assets as a REMIC (which election shall apply to the taxable
period ending December 31, 1998 and each calendar year
thereafter) in such manner as the Code or applicable Treasury
regulations may prescribe. The Trustee shall sign all tax
information returns filed pursuant to this Section and any
other returns as may be required by the Code, and in doing so
shall rely entirely upon, and shall have no liability for
information provided by, or calculations provided by, the
Seller or the Master Servicer. The Holder of the Class R
Certificate is hereby designated as the "Tax Matters Person"
(within the meaning of Treas. Reg. xx.xx. 1.860F-4(d)) for the
REMIC Assets. The Trustee is hereby designated and appointed as
the agent of such Tax Matters Person. Any Holder of a Residual
Certificate will by acceptance thereof appoint the Trustee as
agent and attorney-in-fact for the purpose of acting as Tax
Matters Person for the REMIC Assets during such time as the
Trustee does not own any such Residual Certificate. In the
event that the Code or applicable Treasury regulations prohibit
the Trustee from signing tax or information returns or other
statements, or the Trustee from acting as Tax Matters Person
(as an agent or otherwise), the Trustee shall take whatever
action that in its sole good faith judgment is necessary for
the proper filing of such information returns or for the
provision of a tax matters person, including designation of the
Holder of a Residual Certificate to sign such returns or act as
tax matters person. Each Holder of a Residual Certificate shall
be bound by this Section.
(c) The Trustee shall provide upon request such information (which
shall be provided by the Master Servicer) as required in
Section 860D(a)(6)(B) of the Code to the Internal Revenue
Service, to any Person purporting to transfer a Residual
Certificate to a Person other than a transferee permitted by
Section 5.05(b), and to any regulated investment company, real
estate investment trust, common trust fund, partnership, trust,
estate, organization described in Section 1381 of the Code, or
nominee holding an interest in a pass-through entity described
in Section 860E(e)(6) of the Code, any record holder of which
is not a transferee permitted by Section 5.05(b) (or which is
deemed by statute to be an entity with a disqualified member).
(d) The Trustee shall prepare and file or cause to be filed any
state income tax returns required under Applicable State Law
with respect to each of the REMIC Assets or the Trust Fund.
ARTICLE X
Termination
Section 10.0Termination Upon Repurchase by the Seller or
its Designee or Liquidation of All XXXx. (a) Subject to Section 10.02, the
respective obligations and responsibilities of the Seller, the Master
Servicer and the Trustee created hereby, other than the obligation of the
Trustee or the Master Servicer to make payments to Certificateholders as
hereinafter set forth and to the Trustee, shall terminate upon:
(i) the repurchase by or at the direction of the
Seller or its designee of all XXXx and all property
remaining in the Trust at a price equal to (a) 100% of
the Outstanding Principal Balance of each XXX (other than
a XXX related to REO Property) as of the date of
repurchase, net of the principal portion of any
unreimbursed Monthly Advances made by the purchaser,
together with interest at the applicable Stated Interest
Rate accrued but unpaid through and including the last
day of the month of repurchase, plus (b) the appraised
value of any REO Property less the good faith estimate of
the Seller of liquidation expenses to be incurred in
connection with its disposal thereof, (but not more than
the Outstanding Principal Balance of the related XXX,
together with interest at the applicable Stated Interest
Rate accrued on that balance but unpaid through and
including the last day of the month of repurchase), such
appraisal to be calculated by an appraiser mutually
agreed upon by the Seller and the Trustee at the expense
of the Seller; or
(ii) the later of the making of the final payment
or other liquidation, or any advance with respect
thereto, of the last XXX remaining in the Trust Fund or
the disposition of all property acquired with respect to
any XXX; upon foreclosure or deed in lieu of foreclosure
of any Mortgaged Property or other assets remaining in
the Trust Fund, provided, however, that in the event that
an advance has been made, but not yet recovered, at the
time of such termination, the Person having made such
advance shall be entitled to receive, notwithstanding
such termination, any payments received subsequent
thereto with respect to which such advance was made.
(b) In no event, however, shall the Trust created hereby continue
beyond 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. Xxxxx,
living on the date of this Agreement.
(c) [Reserved.]
(d) The right of the Seller or its designee to repurchase all XXXx
pursuant to Subsection 10.01(a)(i) above shall be exercisable
only if (i) the aggregate Scheduled Principal Balance of such
XXXx at the time of any such repurchase is less than [ ]% of
the Cut-off Date Balance or (ii) the Seller based upon an
Opinion of Counsel delivered to the Trustee, has determined
that the REMIC status of the REMIC Assets has been lost or that
a substantial risk exists that such REMIC status will be lost
for the then-current taxable year. At any time thereafter, the
Seller may elect to terminate the Trust at any time, and upon
such election, the Seller or its designee shall repurchase all
the XXXx.
(e) [Reserved].
(f) Provided that the Trustee has received timely notice, the
Trustee shall give notice of any termination to the
Certificateholders, with a copy to the Rating Agencies, upon
which the Certificateholders shall surrender their Certificates
to the Trustee for payment of the final distribution and
cancellation. To the extent reasonably practical, such notice
shall be given by letter, mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the
month of such final distribution, and shall specify (i) the
Distribution Date upon which final payment of the Certificates
will be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated,
(ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is
not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Trustee
therein specified.
(g) If the option of the Seller to repurchase or cause the
repurchase of all XXXx under Subsection 10.01(a)(i) above is
exercised, the Seller and/or its designee, as the case may be,
shall deliver to the Trustee for deposit in the Distribution
Account, by the Business Day prior to the applicable
Distribution Date, an amount equal to the repurchase price for
the XXXx being purchased by it and all property acquired with
respect to such XXXx remaining in the Trust. Upon the
presentation and surrender of the Certificates, the Trustee
shall distribute an amount equal to (i) the amount otherwise
distributable to the Certificateholders (other than the holder
of the Class R Certificate) on such Distribution Date but for
such repurchase, (ii) the Current Principal Amount and any
accrued but unpaid interest at the Pass-Through Rate to the
Certificateholders of each Class, and (iii) the remainder to
the Class R Certificateholder. If the Available Funds are not
sufficient to pay all of the related Certificates in full, any
such deficiency will be allocated to the outstanding Class or
Classes of Subordinate Certificates having the highest
numerical designation or, if after the Cross-Over Date, to the
Senior Certificates pro rata. Upon deposit of the required
repurchase price and following such final Distribution Date,
the Trustee shall promptly release to the Seller and/or its
designee, as the case may be, the Mortgage Files for the
remaining XXXx, and the Accounts shall terminate, subject to
the Trustee's obligation to hold any amounts payable to
Certificateholders in trust without interest pending final
distributions pursuant to Subsection 10.01(i).
(h) In the event that this Agreement is terminated by reason of the
payment or liquidation of all XXXx or the disposition of all
property acquired with respect to all XXXx under Subsection
10.01(a)(ii) above, the Master Servicer shall deliver to the
Trustee for deposit in the Distribution Account all
distributable amounts remaining in its Collection Account and
shall cause any Sub-Servicers to deliver to the Trustee for
deposit in the Distribution Account all distributable amounts
remaining in their Collection Accounts. Upon the presentation
and surrender of the Certificates, the Trustee shall distribute
to the Certificateholders, in accordance with their respective
interests, all distributable amounts remaining in the
Distribution Account. Upon deposit by any Sub-Servicers of such
distributable amounts and delivery to the Trustee of an
Officer's Certificate from the Master Servicer certifying that
such deposit has been made, and following such final
Distribution Date, the Trustee shall promptly release to the
Master Servicer the Mortgage Files for the remaining XXXx, and
the Accounts shall terminate, subject to the Trustee's
obligation to hold any amounts payable to the
Certificateholders in trust without interest pending final
distributions pursuant to Subsection 10.01(ii).
(i) If not all of the Certificateholders shall surrender their
Certificates for cancellation within six 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 six months after the second notice, not all
the Certificates shall have been surrendered for cancellation,
the Trustee may take appropriate steps, or appoint any agent to
take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates,
and the cost thereof shall be paid out of the funds and other
assets which remain subject to this Agreement.
Section 10.0 Additional Termination Requirements. (a) If
the option of the Seller to repurchase all the XXXx under Subsection
10.01(a)(i) above is exercised, the Trust and the REMIC Assets shall be
terminated in accordance with the following additional requirements, unless
the Trustee has been furnished with an Opinion of Counsel to the effect
that the failure of the Trust to comply with the requirements of this
Section 10.02 will not (i) result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code on the REMIC Assets or
(ii) cause the REMIC to fail to qualify as a REMIC at any time that any
Regular Certificates are outstanding:
(i) within 90 days prior to the final Distribution
Date, at the written direction of the Seller, the
Trustee, as agent for the Tax Matters Person, shall adopt
a plan of complete liquidation of the Trust Fund and the
REMIC Assets provided to it by the Seller meeting the
requirements of a "Qualified Liquidation" under Section
860F of the Code and any regulations thereunder;
(ii) at or after the time of adoption of such a
plan of complete liquidation and at or prior to the final
Distribution Date, the Trustee shall sell for cash all of
the assets of the Trust to or at the direction of the
Seller; and
(iii) at the time of the making of the final
payment on the Certificates, the Trustee shall distribute
or credit from the Distribution Account to the extent on
deposit therein (or cause to be distributed or credited)
(i) to the Certificateholders, other than the Holder of
the Class R Certificate, the Current Principal Amount of
the Certificates plus 30 days' interest thereon at the
applicable Pass-Through Rate, and (ii) to the Class R
Certificateholder, all cash on hand from the Distribution
Account (other than cash retained to meet claims); and
the Trust and the REMIC Assets shall terminate at such
time.
(b) By their acceptance of the Residual Certificates, the Holders
thereof hereby (i) agree to adopt such a plan of complete
liquidation upon the written request of the Seller and to take
such action in connection therewith as may be reasonably
requested by the Seller and (ii) appoint the Seller as their
attorney-in-fact, with full power of substitution, for purposes
of adopting such a plan of complete liquidation. The Trustee
shall adopt such plan of liquidation by filing the appropriate
statement on the final tax return of the REMIC Assets.
ARTICLE XI
Miscellaneous Provisions
Section 11.0 Intent of Parties. The parties intend that
the REMIC Assets shall be treated as a REMIC for federal income tax
purposes and that the provisions of this Agreement should be construed in
furtherance of this intent.
Section 11.0 Amendment. (a) This Agreement may be amended
from time to time by the Seller, the Trustee and the Master Servicer,
without notice to or the consent of any of the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein that may be
defective or inconsistent with any other provisions herein, to comply with
any changes in the Code or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
such action shall not, as evidenced by an Opinion of Independent Counsel,
adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by the
Seller, the Trustee and the Master Servicer, with the consent
of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 66% of the Trust Fund or of
the applicable Class or Classes if such amendment affects only
such Class or Classes 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 Certificateholders; provided, however, that no
such amendment -------- ------- shall (i) reduce in any manner
the amount of, or delay the timing of, payments received on
XXXx which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii)
reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without
the consent of the Holders of all Certificates then
outstanding, or (iii) cause the REMIC Assets to fail to qualify
as a REMIC for federal income tax purposes, as evidenced by an
Opinion of Independent Counsel which shall be provided to the
Trustee other than at the Trustee's expense. Notwithstanding
any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section
11.02(b), Certificates registered in the name of or held for
the benefit of the Seller, the Master Servicer or a
Sub-Servicer or any Affiliate thereof shall be entitled to vote
their Fractional Undivided Interests with respect to matters
affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment or written notification
of the substance of such amendment to each Certificateholder,
with a copy to the Rating Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above, it
shall not be necessary for the Certificateholders to approve
the particular form of such an amendment. Rather, it shall be
sufficient if the Certificateholders approve the substance of
the amendment. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 11.0 Recordation of Agreement. To the extent
permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. The Master Servicer shall effect such
recordation, at its expense upon the request in writing of a
Certificateholder, but only if such direction is accompanied by an Opinion
of Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required
by law.
Section 11.0Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote or in any
manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the
Certificates, be construed so as to establish the
Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholders 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.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon, under or with respect to
this Agreement against the Seller, the Master Servicer or any
successor to any such parties unless (i) such Certificateholder
previously shall have given to the Trustee a written notice of
a continuing default, as herein provided, (ii) the Holders of
Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund shall have made
written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may
require against the costs and expenses and liabilities to be
incurred therein or thereby, and (iii) the Trustee, for 60 days
after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by
virtue of any provision of this Agreement to affect the rights
of any other Certificateholders or to obtain or seek to obtain
priority or preference over any other such Certificateholder,
or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.04, each and
every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 11.0 Acts of Certificateholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Certificateholders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is expressly required, to the
Seller. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Seller, if made in
the manner provided in this Section 11.05.
(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 a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of his or her 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 (notwithstanding any notation of
ownership or other writing on such Certificates, except an
endorsement in accordance with Section 5.02 made on a
Certificate presented in accordance with Section 5.04) shall be
proved by the Certificate Register, and neither the Trustee,
the Seller, the Master Servicer nor any successor to any such
parties shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of 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
or exchange thereof, if applicable, or in lieu thereof with
respect to anything done, omitted or suffered to be done by the
Trustee, the Seller, the Master Servicer or any successor to
any such party in reliance thereon, whether or not notation of
such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage
of Certificates evidencing Fractional Undivided Interests have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Certificates owned by the Trustee,
the Seller, the Master Servicer or any Sub-Servicer or any
Affiliate thereof shall be disregarded except as otherwise
provided in Section 11.02(b) and except that, in determining
whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Certificates which the Trustee knows to be so
owned shall be so disregarded. Certificates which have been
pledged in good faith to the Trustee, the Seller, the Master
Servicer or any Sub-Servicer or any Affiliate thereof may be
regarded as outstanding if the pledgor establishes to the
satisfaction of the Trustee the pledgor's right to act with
respect to such Certificates and that the pledgor is not an
Affiliate of the Trustee, the Seller, the Master Servicer or
any Sub-Servicer, as the case may be.
Section 11.0 [Reserved]
Section 11.0 Governing Law. THIS AGREEMENT AND THE
CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS RULES AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.0 Notices. All demands and notices hereunder
shall be in writing and shall be deemed given when delivered at or mailed
by registered mail, return receipt requested, postage prepaid, or by
recognized overnight courier, to (i) in the case of the Seller, SAMCO
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Vice President-Servicing (but with respect to monthly reports
sent pursuant to Section 6.07(b), Attention: __________), or to such other
address as may hereafter be furnished to the other parties hereto in
writing; in the case of the Master Servicer, _________________________
Attention: __________ or such other address as may hereafter be furnished
to the other parties hereto in writing; (iii) in the case of the Trustee,
at its Corporate Trust Office, or such other address as may hereafter be
furnished to the other parties hereto in writing; or (iv) in the case of
the Rating Agencies, (x) Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Residential XXX Structured Finance, and (y)
Standard & Poor's, a Division of The XxXxxx-Xxxx Companies, Inc., 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Residential Mortgage
Surveillance. Any notice delivered to the Seller, the Master Servicer or
the Trustee under this Agreement shall be effective only upon receipt. Any
notice required or permitted to be mailed to a Certificateholder, unless
otherwise provided herein, shall be given by first-class mail, postage
prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
Section 11.0 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 severed 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 11.1 Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
Section 11.1 Article and Section Headings. The article and
section headings herein are for convenience of reference only, and shall
not limit or otherwise affect the meaning hereof.
Section 11.1 Counterparts. This Agreement may be executed
in two or more counterparts each of which when so executed and delivered
shall be an original but all of which together shall constitute one and the
same instrument.
Section 11.1 Notice to Rating Agencies. The article and
section headings herein are for convenience of reference only, and shall
not limited or otherwise affect the meaning hereof. The Trustee shall use
its best efforts to promptly provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not
been cured;
3. The resignation or termination of the Master Servicer
or the Trustee;
4. The repurchase or substitution of XXXx;
5. The final payment to Certificateholders; and
6. Any change in the location of the Distribution Account.
In addition, in accordance with Section 6.06 and Section
3.16, the Trustee and the Master Servicer, respectively, shall promptly
furnish to each Rating Agency copies of the following:
1. Each report to Certificateholders described in
Section 6.06; and
2. Each annual independent public accountants' servicing
report received as described in Section 3.16.
IN WITNESS WHEREOF, the Seller, _____ as Master Servicer
and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
SAMCO MORTGAGE SECURITIES
CORP., as Seller
By: /s/
----------------------------
Name:
Title:
--------------------------------,
as Master Servicer
By: /s/
---------------------------
Name:
Title:
---------------------, as Trustee
By: /s/
---------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of __________, 2000 before me, a notary
public in and for said State, personally appeared __________, known to me
to be a __________ of SAMCO Mortgage Securities Corp., the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate first above
written.
/s/
---------------------------------
Notary Public
No.
Commission Expires _________________
[Notarial Seal]
STATE OF __________ )
) ss.:
COUNTY OF __________ )
On the ____ day of __________, 2000 before me, a notary
public in and for said State, personally appeared__________, known to me to
be the President of _____________________, the corporation that executed
the within instrument, and also known to me to be the person who executed
it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate first above
written.
/s/
----------------------------------
Notary Public
Commission Expires ___________________
[Notarial Seal]
STATE OF __________ )
) ss.:
COUNTY OF __________ )
On the ____ day of ___________, 2000 before me, a notary
public in and for said State, personally appeared ___________, known to me
to be a ____________ of ____________________, that executed the within
instrument, and also known to me to be the person who executed it on behalf
of said trust company and acknowledged to me that such trust company
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate first above
written.
/s/
----------------------------------
Notary Public
No.
Commission Expires __________
[Notarial Seal]
EXHIBIT A-1
FORM OF FACE OF CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. A-1
SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H ER 6
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : A
FIRST DISTRIBUTION Date : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ( "DENOMINATION") : $200,000,000
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $211,895,600
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE
DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but
solely as Trustee
By__________________________ By_________........................
Authorized signatory of Bankers Trust Company....... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. A-2 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H ER 6
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : A
FIRST DISTRIBUTION Date : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $11,895,600
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $211,895,600
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE
DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________________............................
Authorized signatory of Bankers Trust Company............ AUTHORIZED OFFICER
of California, N.A., not in its individual
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
THE YIELD TO THE HOLDER OF THIS CERTIFICATE WILL BE
SENSITIVE TO THE RATE OF PRINCIPAL PAYMENTS ON THE DISCOUNT MORTGAGE LOANS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. PO-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H ES 4
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : PO
FIRST DISTRIBUTION Date : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE : JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $90,487
PASS-THROUGH RATE : N/A APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $90,487
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
The Class PO Certificates are principal only certificates and
will receive no interest. The Trustee will distribute on the 25th day of
each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE
DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL DECREASE AS THE
PRINCIPAL BALANCES OF THE NON-DISCOUNT MORTGAGE LOANS DECREASE.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE
NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS THEN
NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
THE YIELD TO THE HOLDER OF THIS CERTIFICATE WILL BE EXTREMELY
SENSITIVE TO THE RATE OF PRINCIPAL PAYMENTS ON THE MORTGAGE LOANS.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY,
OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND
ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT
COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE")
84-14, XXX 00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE
RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE
CERTIFICATE OR CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY
TO THE CLASS X CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X
CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED
AN EXEMPTION BY THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH
ENTITY ACTS AS A SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN
SECONDARY MARKET TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. X-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H ET 2
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : X
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL NOTIONAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $222,864,136
PASS-THROUGH RATE : VARIABLE APPROXIMATE ORIGINAL CLASS
NOTIONAL AMOUNT : $222,864,136
THIS CERTIFIES THAT LIBERTY SAVINGS BANK, F.S.B.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
This Class of Certificates will have a Notional Amount equal to
the aggregate Scheduled Principal Balance of the Mortgage Loans with Net
Rates equal to or greater than 6.90% per annum and will bear interest
thereon at a variable Pass-Through Rate equal to the weighted average of
the excess (a) the Net Rate on each such Mortgage Loan over (b) 6.90% per
annum. Interest on this Certificate will accrue during the month prior to
the month in which a Distribution Date (as hereinafter defined) occurs on
the then Notional Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE
DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY,
OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND
ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT
COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE")
84-14, XXX 00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE
RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE
CERTIFICATE OR CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY
TO THE CLASS X CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X
CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED
AN EXEMPTION BY THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH
ENTITY ACTS AS A SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN
SECONDARY MARKET TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-1-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE
LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H EU 9
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-1
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $6,856,700
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $6,856,700
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE
DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE PROPOSED TRANSFER
AND/OR HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND/OR
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY
PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED
TRANSACTION EXEMPTION ("PTE") 84-14, XXX 00-00, XXX 00-0, XXX 95-60 OR PTE
96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE
PART OF THE MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE DEEMED
REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE
AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF
A HOLDER OF A PRIVATE CERTIFICATE OR CLASS X CERTIFICATE. THE ABOVE
RESTRICTIONS SHALL NOT APPLY TO THE CLASS X CERTIFICATES EITHER: (I) IN THE
EVENT THAT THE CLASS X CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN ENTITY
WHICH HAS BEEN GRANTED AN EXEMPTION BY THE DEPARTMENT OF LABOR SIMILAR TO
PTE 90-30, OR SUCH ENTITY ACTS AS A SELLING AGENT FOR SUCH CLASS X
CERTIFICATES OR (II) IN SECONDARY MARKET TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-2-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H EV 7
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-2
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $3,999,700
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $3,999,700
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY,
OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND
ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT
COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE")
84-14, XXX 00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE
RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE
CERTIFICATE OR CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY
TO THE CLASS X CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X
CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED
AN EXEMPTION BY THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH
ENTITY ACTS AS A SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN
SECONDARY MARKET TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-3-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H EW 5
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-3
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICERS : LIBERTY LENDING SERVICES, ("DENOMINATION") : $2,285,600
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $2,285,600
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN THE "REMIC ASSETS" AS DEFINED IN THE AGREEMENT
REFERRED TO BELOW, WHICH IS A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND IS
NOT TREATED AS INDEBTEDNESS OF THE TRUST REFERRED TO BELOW. EACH PURCHASER
OF THE INTEREST REPRESENTED BY THIS CERTIFICATE WILL BE REQUIRED TO
REPRESENT IN AN AFFIDAVIT THAT IT IS NOT A "DISQUALIFIED ORGANIZATION" AND
WILL NOT TRANSFER THIS CERTIFICATE TO A "DISQUALIFIED ORGANIZATION." THE
TERM "DISQUALIFIED ORGANIZATION" IS DEFINED IN SECTION 860(E)(5) OF THE
CODE AND IN THE AGREEMENT. EACH PURCHASER WILL ALSO BE REQUIRED TO
REPRESENT IN SUCH AFFIDAVIT THAT (A) IT IS NOT ACQUIRING CERTIFICATES FOR
THE ACCOUNT OF A DISQUALIFIED ORGANIZATION AND (B) IT WILL NOT TRANSFER
THIS CERTIFICATE UNLESS (1) IT HAS RECEIVED A SIMILAR AFFIDAVIT FROM THE
PROPOSED TRANSFEREE AND (2) AS OF THE TIME OF THE TRANSFER, IT DOES NOT
HAVE ACTUAL KNOWLEDGE THAT THE AFFIDAVIT OF THE PROPOSED TRANSFEREE IS
FALSE. IN THE EVENT THAT LEGISLATION IS ENACTED WHICH WOULD SUBJECT THE
TRUST REFERRED TO BELOW TO TAX (OR DISQUALIFY THE TRUST REFERRED TO BELOW)
ON THE TRANSFER OF AN INTEREST REPRESENTED BY THIS CERTIFICATE TO ANY OTHER
PERSON OR PERSONS, STRUCTURED ASSET MORTGAGE INVESTMENTS INC. SHALL,
WITHOUT FURTHER ACTION ON THE PART OF THE HOLDERS OF THE CLASS R
CERTIFICATES BE EMPOWERED, TO THE FULLEST EXTENT POSSIBLE AND AS IF THEY
HAD SO VOTED, TO AMEND THE AGREEMENT REFERRED TO BELOW TO RESTRICT OR
PROHIBIT PROSPECTIVELY SUCH TRANSFER. THIS CERTIFICATE MAY NOT BE
TRANSFERRED TO A NON-U.S. PERSON AS DESCRIBED IN SECTION 5.05(C) OF THE
AGREEMENT REFERRED TO BELOW WITHOUT THE PRIOR WRITTEN CONSENT OF THE TAX
MATTERS PERSON AND STRUCTURED ASSET MORTGAGE INVESTMENTS INC.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. R-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO. 86358H EX 3
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : R
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $100
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $100
THIS CERTIFIES THAT BEAR XXXXXXX SECURITIES CORP.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(A)(1),(2)(3) OR (7) OF
REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL THE EQUITY OWNERS
COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) A
REPRESENTATION OR CERTIFICATION AS TO COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH
IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS ASSETS:
(I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING,
BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, XXX
00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER OR THE
TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY
CERTIFICATE OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION
TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE CERTIFICATE OR
CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY TO THE CLASS X
CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X CERTIFICATES ARE
UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED AN EXEMPTION BY
THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH ENTITY ACTS AS A
SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN SECONDARY MARKET
TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-4-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO.
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-4
FIRST DISTRIBUTION DATE : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $1,599,900
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $1,599,900
THIS CERTIFIES THAT LIBERTY SAVINGS BANK, F.S.B.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(A)(1),(2)(3) OR (7) OF
REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL THE EQUITY OWNERS
COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) A
REPRESENTATION OR CERTIFICATION AS TO COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH
IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS ASSETS:
(I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING,
BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, XXX
00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER OR THE
TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY
CERTIFICATE OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION
TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE CERTIFICATE OR
CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY TO THE CLASS X
CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X CERTIFICATES ARE
UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED AN EXEMPTION BY
THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH ENTITY ACTS AS A
SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN SECONDARY MARKET
TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-5-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO.
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-5
FIRST DISTRIBUTION : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $685,700
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $685,700
THIS CERTIFIES THAT LIBERTY SAVINGS BANK, F.S.B.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, STRUCTURED ASSET MORTGAGE INVESTMENTS INC., LIBERTY LENDING
SERVICES, INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE
AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED
INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(A)(1),(2)(3) OR (7) OF
REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL THE EQUITY OWNERS
COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) A
REPRESENTATION OR CERTIFICATION AS TO COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH
IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS ASSETS:
(I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING,
BUT NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, XXX
00-00, XXX 00-0, XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER SERVICER OR THE
TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY
CERTIFICATE OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION
TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE CERTIFICATE OR
CLASS X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL NOT APPLY TO THE CLASS X
CERTIFICATES EITHER: (I) IN THE EVENT THAT THE CLASS X CERTIFICATES ARE
UNDERWRITTEN, PLACED BY AN ENTITY WHICH HAS BEEN GRANTED AN EXEMPTION BY
THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30, OR SUCH ENTITY ACTS AS A
SELLING AGENT FOR SUCH CLASS X CERTIFICATES OR (II) IN SECONDARY MARKET
TRANSFERS THEREAFTER.
MORTGAGE PASS-THROUGH CERTIFICATE,
NO. B-6-1 SERIES 1998-10
EVIDENCING A BENEFICIAL INTEREST IN THE BELOW NAMED
TRUST CONSISTING OF CONVENTIONAL, FIRST LIEN MORTGAGE LOANS:
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
CUSIP NO.
CUT-OFF DATE : NOVEMBER 1, 1998 CLASS : B-6
FIRST DISTRIBUTION : DECEMBER 25, 1998 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE: JULY 25, 2028 OF THIS CERTIFICATE
MASTER SERVICER : LIBERTY LENDING SERVICES, ("DENOMINATION") : $1,142,814
PASS-THROUGH RATE : 6.90% APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $1,142,814
THIS CERTIFIES THAT LIBERTY SAVINGS BANK, F.S.B.
is the registered owner of the Fractional Undivided Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust") consisting
primarily of conventional, first lien, fixed rate, fully amortizing or
balloon payment, mortgage loans, secured by one- to four-family residences
and condominium units located primarily in California (collectively, the
"Mortgage Loans"), which will be sold to the Trust by Structured Asset
Mortgage Investments Inc. ("SAMI"). The Mortgage Loans were sold by Liberty
Savings Bank, F.S.B ("Liberty") in its individual capacity and as trustee
to SAMI. Liberty Lending Services, Inc. ("LLSI") will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes
any successors thereto under the Agreement referred to below). The Trust
was created pursuant to the Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), by and among SAMI, as
seller, LLSI, as Master Servicer, and Bankers Trust Company of California,
N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Certificate by virtue of its acceptance hereof assents
and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior
to the month in which a Distribution Date (as hereinafter defined) occurs
on the Current Principal Amount hereof at a per annum rate equal to the
Pass-Through Rate. The Trustee will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the calendar month preceding the month of such Distribution Date, an
amount equal to the product of the Fractional Undivided Interest evidenced
by this Certificate and the amount required to be distributed to Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the
date on which the Current Principal Amount or Notional Amount, as
applicable, of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name
and address shall appear on the Certificate Register or, if such Person so
requests by notifying the Trustee in writing as specified in the Agreement
and if such Person holds Certificates with an initial aggregate Current
Principal Amount and/or initial aggregate Notional Amount, as applicable,
of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person
to the Trustee. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice.
UNLESS THIS CERTIFICATE HAS BEEN COUNTERSIGNED BY AN AUTHORIZED
SIGNATORY OF THE TRUSTEE BY MANUAL SIGNATURE, THIS CERTIFICATE SHALL NOT BE
ENTITLED TO ANY BENEFIT UNDER THE AGREEMENT, OR BE VALID FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS
CERTIFICATE TO BE DULY EXECUTED.
Dated: November 30, 1998
Countersigned: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Not in its individual capacity but solely as Trustee
By__________________________ By_____________________............................
Authorized signatory of Bankers Trust Company...... AUTHORIZED OFFICER
of California, N.A., not in its individual
capacity but solely as Trustee
EXHIBIT A-2
FORM OF REVERSE OF CERTIFICATES
STRUCTURED ASSET MORTGAGE INVESTMENTS TRUST 1998-10
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-10
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the
"Certificates"), issued in ten Classes. The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust formed
pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided in
the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced hereby,
and the rights, duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Master Servicer and the rights of the Certificateholders under the
Agreement from time to time by the Master Servicer and the Trustee with the
consent of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the
Fractional Undivided Interests thereof). Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon
all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable with the Trustee upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the
Trustee in the City of Irvine, State of California, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in
authorized denominations representing a like aggregate Fractional Undivided
Interest will be issued to the designated transferee. In the case of
classes of Certificates not registered under the Securities Act of 1933, as
amended, additional documentation will be required to be provided to the
Trustee prior to the effectiveness of a transfer.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for one or more new
Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Master Servicers, the
Trustee nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust created
thereby (other than the obligations to make payments to Certificateholders
with respect to the termination of the Agreement) shall terminate upon the
earlier of (i) the later of the (A) final payment or other liquidation (or
Monthly Advance with respect thereto) of the last Mortgage Loan remaining
in the Trust and (B) disposition of all property acquired upon foreclosure
or deed in lieu of foreclosure of any Mortgage Loan and the remittance of
all funds due under the Agreement, or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other related
assets in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than
10% of the aggregate Cut-off Date Scheduled Principal Balance of the
Mortgage Loans. The exercise of such right will effect the early retirement
of the Certificates. The Trust also may be terminated on any Distribution
Date upon the determination, based upon an opinion of counsel, that the
REMIC status of the REMIC Assets has been lost or that a substantial risk
exists that such status will be lost for the then current year. In no
event, however, will the Trust created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the
Agreement.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please print or typewrite name and address including postal zip code assignee)
the within Certificate and hereby authorizes the transfer of
registration of such interest to the assignee on the Certificate Register
of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate
to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
for the account of
account number ______________, or, if mailed by check to
.
Applicable statements should be mailed to
.
This information is provided by
,
the assignee named above, or
,
as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(Available Upon Request)
EXHIBIT C
Representations and Warranties of the Seller
Concerning the Mortgage Loans
(a) The information set forth and to be set forth in the
Mortgage Loan Schedule was and will be true and correct in all material
respects at the date or dates respecting which such information is
furnished;
(b) [Reserved].
(c) The Mortgage Loan has not been delinquent 30 days or more
on more than one occasion during the 12 months preceding the Cut-Off Date.
As of the Closing Date, the Mortgage Loan will not be dishonored and will
not be delinquent in payment more than 30 days, except for no more than
three Mortgage Loans representing less than 0.25% of the Cut-off Date
Scheduled Principal Balance of the Mortgage Loans which will be 59 days or
less delinquent; there are no defaults under the terms of the Mortgage
Loan; and the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner
of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Mortgage Loan;
(d) There are no delinquent taxes, ground rents, assessments or
other outstanding charges affecting the related Mortgaged Property;
(e) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right thereunder,
render the Mortgage Note or Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) The Mortgage has not been satisfied, canceled or
subordinated, in whole or in part, or rescinded, and the Mortgaged Property
has not been released from the lien of the Mortgage, in whole or in part,
except with respect to certain releases in part that do not materially
affect the value of the Mortgaged Property, nor has any instrument been
executed that would effect any such satisfaction, release, cancellation,
subordination or rescission;
(g) Immediately prior to the transfer and assignment to the
Trust, the Mortgage Note and the Mortgage were not subject to an assignment
or pledge, and the Seller had good and marketable title to and was the sole
owner of, and had full right to transfer and sell, the Mortgage Loan to the
Trust free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(h) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and
no event, which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation
or event permitting acceleration; and neither the Seller nor any prior
mortgagee has waived any default, breach, violation or event permitting
acceleration;
(i) There are no mechanics, or similar liens or claims which
have been filed for work, labor or material affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related Mortgage;
(j) All improvements subject to the Mortgage lie wholly within
the boundaries and building restriction lines of the Mortgaged Property
(and wholly within the project with respect to a condominium unit) except
for de minimus encroachments permitted by the Xxxxxx Xxx Guide (MBS Special
Servicing Option) and which has been noted on the appraisal, and no
improvements on adjoining properties encroach upon the Mortgaged Property
except those which are insured against by a title insurance policy and all
improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(k) The Mortgaged Property at origination of the Mortgage Loan
and currently is free of damage and waste or any such damage and waste is
adequately covered by an insurance policy, and at origination of the
Mortgage Loan and currently there is, no proceeding pending for the total
or partial condemnation thereof;
(l) The original Loan-to-Value Ratio of each Mortgage Loan
either was not more than 95.00% or the excess over 80.00% is insured as to
payments defaults by a Primary Mortgage Insurance Policy issued by a
primary mortgage insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac until the
Loan-to-Value Ratio of such Mortgage Loan is reduced to 80.00% except for
one Mortgage Loan within an original Loan-to-Value Ratio of 84.71% which
does not have a Primary Mortgage Insurance Policy;
(m) The Mortgage creates a first lien or a first priority
ownership interest in an estate in fee simple in real property securing the
related Mortgage Note, free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording which are acceptable to mortgage lending
institutions generally and either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan,
or (B) which do not adversely affect the appraised value of the Mortgaged
Property as set forth in such appraisal, and (3) other matters to which
like properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related Mortgaged Property;
(n) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by
written instruments which have been recorded to the extent any such
recordation is required by applicable law, and copies of which written
instruments are included in the Mortgage File. No other instrument of
waiver, alteration or modification has been executed, and no Mortgage has
been released, in whole or in part, from the terms thereof except in
connection with an assumption agreement, which assumption agreement is part
of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(o) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer pursuant to standard hazard policies
conforming to the requirements of the Pooling and Servicing Agreement. All
such standard hazard policies are in effect and on the date of origination
contained a standard mortgagee clause naming the originator and its
successors in interest as loss payee and such clause is still in effect and
all premiums due thereon have been paid. If the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the Flood Disaster Protection Act of
1973, as amended, such Mortgaged Property is covered by flood insurance in
an amount not less than that set forth in the Pooling and Servicing
Agreement. The Mortgage obligates the Mortgagor thereunder to maintain all
such insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
(p) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity
or disclosure laws applicable to the Mortgage Loan have been complied with
in all material respects;
(q) The Mortgage is a valid, subsisting and enforceable
(subject to the exceptions set forth in clause (m) above) first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing
securing the Mortgage Note's original principal balance. The Mortgage and
the Mortgage Note do not contain any evidence of any other security
interest or other interest or right thereto. Such lien is free and clear of
all adverse claims, liens and encumbrances having priority over the first
lien of the Mortgage subject only to permitted encumbrances set forth in
clause (m) (1), (2) and (3) above. Any security agreement, chattel mortgage
or equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting and enforceable
first lien and first priority security interest on the property described
therein;
(r) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject
to bankruptcy, insolvency and other laws of general application affecting
the rights of creditors, and the Seller has taken all action necessary to
transfer such rights of enforceability to the Trust. All parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage. The Mortgage Note and the Mortgage have been duly and properly
executed by such parties. The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder, and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with;
(s) The Mortgage Loan is covered by an ALTA lender's title
insurance policy or other generally acceptable form of policy of insurance,
issued by a title insurer qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the
exceptions contained in (m) (1), (2) and (3) above) the originator, its
respective successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage Loan. The
originator, its respective successors and assigns are the sole insured of
such lender's title insurance policy, such lender's title insurance policy
is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by the Pooling and Servicing
Agreement and this Agreement and will inure to the benefit of the Trust and
its assigns without any further act. No claims have been made under such
lender's title insurance policy, and no prior holder of the related
Mortgage has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy;
(t) Each Mortgage Loan was originated by or for Headlands
Mortgage Company ("Headlands"). Each Mortgage Loan complies in all material
respects with all the terms, conditions and requirements of Headlands'
underwriting standards in effect at the time of origination of such
Mortgage Loan; provided, that certain Mortgage Loans may have
characteristics outside of such underwriting guidelines where compensating
factors are present acceptable to the mortgage banking industry. The
Mortgage Note and Mortgage are on uniform Xxxxxx Xxx/Xxxxxxx Mac
instruments or are on forms acceptable to Xxxxxx Mae or Xxxxxxx Mac. The
Mortgage Loan bears interest at a fixed rate as set forth in the Mortgage
Loan Schedule, and Monthly Payments under the Mortgage Note are due and
payable on the first day of each month. The Mortgage Loan contains the
usual and enforceable provisions of the originator at the time of
origination for the acceleration of the payment of the unpaid principal
amount if the related Mortgaged Property is sold without the prior consent
of the mortgagee thereunder;
(u) The related Mortgage contains enforceable provisions such
as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (1) in the case of a Mortgage designated as a
deed of trust, by trustee's sale, and (2) otherwise by judicial
foreclosure. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
(v) If the Mortgage constitutes a deed of trust, a trustee,
duly qualified if required under applicable law to act as such, has been
properly designated and currently so serves and is named in the Mortgage,
and no fees or expenses are or will become payable by the Trust to the
trustee under the deed of trust, except in connection with a trustee's sale
or attempted sale after default by the Mortgagor;
(w) The Mortgage File contains an appraisal of the related
Mortgaged Property made and signed prior to the final approval of the
mortgage loan application by a qualified appraiser, approved by the
originator thereof. The appraisal is in a form generally acceptable to
Xxxxxx Mae or Xxxxxxx Mac;
(x) The related Mortgage Note is not and has not been secured
by any collateral except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel mortgage
referred to above and such collateral does not serve as security for any
other obligation;
(y) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of such mortgage
loans;
(z) [Reserved];
(aa) Each Mortgage Loan has an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of
each month. No Mortgage Loan contains terms or provisions which would
result in negative amortization;
(bb) Each of the Mortgaged Properties consists of a single
parcel of real property with single-family residence erected thereon, or a
two- to four-family dwelling, or an individual condominium unit in a
condominium project. Any condominium unit either conforms with applicable
Xxxxxx Mae or Xxxxxxx Mac requirements regarding such dwellings or is
covered by a waiver confirming that such condominium unit is acceptable to
Xxxxxx Mae or Xxxxxxx Mac or is otherwise "warrantable" with respect
thereto;
(cc) The Mortgage Loans were originated with full, or
alternative or reduced documentation;
(dd) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located; and
(ee) Each Mortgage Loan was originated by, (i) a savings and
loan association, savings bank, commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a
federal or State authority, (ii) a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 and 211 of the
National Housing Act or (iii) a mortgage banker or broker licensed or
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located, applying the same standards and procedures
used by the applicable seller in originating Mortgage Loans directly.
EXHIBIT D
REQUEST FOR RELEASE
(for Trustee)
Loan Information
Name of Mortgagor: _____________________________
Loan No.: ____________________________
Trustee
Name: Bankers Trust Company of California N.A.
Address: 0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department,
ref: Bear Xxxxxxx/Liberty (SAMI) 1998-10
Trustee Mortgage
File No.: _____________________________
Master Servicer
Name: Liberty Lending Services, Inc.
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 ATTN:
______________
Certificates: Mortgage Pass-Through Certificates,
Series 1998-10
The undersigned hereby acknowledges that it has received
from Bankers Trust Company of California, N.A., as Trustee for the holders
of Structured Asset Mortgage Investments Trust 1998-10, Mortgage
Pass-Through Certificates, Series 1998-10, the documents referred to below
(the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement dated as of November 1, 1998 (the "Pooling and
Servicing Agreement") among the Trustee, Liberty Lending Services, Inc. and
Structured Asset Mortgage Investments Inc.
( ) Mortgage Note dated ________, 19__, in the original
principal sum of $____________, made by _____________,
payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on _____________ as instrument
no. _____________ in the County Recorder'sCounty off the
_______________, State of __________book/reel/docket
_______________ of official repage/image ________.
( ) Deed of Trust recorded on _______________ as instrument
no. _________ in the County Recorder's Office of the County
of _______________, State of _______________ in
book/reel/docket __________ of official records at
page/image ____________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
______________ as instrument no. ______ in the County
Recorder's Office of the County of _______________,
State of _______________ in book/reel/docket __________ of
official records at page/image _______________.
( ) Other documents, including any amendments, assignments
or other assumptions of the Mortgage Note or Mortgage:
( )______________________________
( )______________________________
( )______________________________
The undersigned hereby acknowledges and agrees as follows:
(1) The Master Servicer shall, and if the Master Servicer
releases the Documents to a Sub-Servicer or related Insurer the
Master Servicer shall cause such Sub-Servicer or related Insurer
to, hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The Master Servicer shall not cause or permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Master Servicer assert or seek to
assert any claims or rights of setoff to or against the
Documents or any proceeds thereof.
(3) The Master Servicer shall return the Documents to the
Trustee when the need therefor no longer exists, unless the
Mortgage Loan relating to the Documents has been liquidated and
the proceeds thereof have been remitted to the Certificate
Account or the Documents are being used to pursue foreclosure or
other legal proceedings and except as expressly provided in the
Agreement.
(4) Prior to the return of the Documents to the Trustee,
the Master Servicer shall, and if the Master Servicer releases
such Documents to a Sub- Servicer or related Insurer, the Master
Servicer shall cause such Sub-Servicer or related Insurer to,
retain the Documents in its control unless the Documents have
been delivered to an attorney, or to a public trustee or other
public official as required by law, to initiate or pursue legal
action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or nonjudicially, and the Master
Servicer has delivered to the Trustee a certificate of a
Servicing Officer certifying as to the name and address of the
Person to which the Documents were delivered and the purpose or
purposes of such delivery.
(5) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of
the Master Servicer shall at all times be earmarked for the
account of the Trustee, and the Master Servicer shall keep the
Documents and any proceeds separate and distinct from all other
property in the possession, custody or control of the Master
Servicer.
Date: ______________________, 19__
LIBERTY LENDING SERVICES, INC.
By: _______________________________________
Name:
Title:
EXHIBIT E
Affidavit pursuant to
Section 860E(e)(4) of the
Internal Revenue Code of
1986, as amended, and for
other purposes
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and
says:
1. That he is [Title of Officer] of [Name of Investor]
(the "Investor"), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of__________] [the United States], on
behalf of which he makes this affidavit.
2. That (i) the Investor is not a "disqualified
organization" as defined in Section 860E(e)(5) of the Internal Revenue Code
of 1986, as amended, and will not be a disqualified organization as of
[Closing Date] [date of purchase]; (ii) it is not acquiring the Structured
Asset Mortgage Investments Trust 1998-10, Mortgage Pass-Through
Certificates, Series 1998-10, Class R Certificate (the "Residual
Certificate") for the account of a disqualified organization; (iii) it
consents to any amendment of the Pooling and Servicing Agreement that shall
be deemed necessary by Structured Asset Mortgage Investments Inc. (upon
advice of counsel) to constitute a reasonable arrangement to ensure that
the Residual Certificate will not be owned directly or indirectly by a
disqualified organization; and (iv) it will not transfer such Residual
Certificate unless (a) it has received from the transferee an affidavit in
substantially the same form as this affidavit containing these same four
representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a
citizen or resident of the United States, (ii) a corporation, partnership
or other entity taxable as such created or organized in or under the laws
of the United States or any political subdivision thereof or (iii) an
estate that is subject to U.S. federal income tax regardless of the source
of its income, or (iv) a trust other than a "foreign trust," as defined in
Section 7701(a)(31) of the Code.
4. That the Investor's taxpayer identification number is
___________.
5. That no purpose of the acquisition of the Residual
Certificate is to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of
the Residual Certificate, the Investor may incur tax liabilities in excess
of any cash flows generated by such Residual Certificate.
7. That the Investor intends to pay taxes associated with
holding the Residual Certificate as they become due.
IN WITNESS WHEREOF, the Investor 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 , 20__.
[NAME OF INVESTOR]
By:
[Name of Officer]
[Title of Officer]
[Address of Investor for
receipt of distributions]
Address of Investor for
receipt of tax information:
__________________________
__________________________
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 Investor, and
acknowledged to me 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 _______, 20__.
_____________________________
NOTARY PUBLIC
COUNTY OF ___________________
STATE OF ____________________
My commission expires the ___ day of _____________, 19__.
EXHIBIT F-1
FORM OF INVESTMENT LETTER
[Date]
[SELLER]
Bankers Trust Company of
California, N.A.
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Attention: Corporate Trust Department,
ref: Bear Xxxxxxx/Liberty (SAMI) 1998-10
Structured Asset Mortgage Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Structured Asset Mortgage Investments Trust 1998-10,
Mortgage Pass- Through Certificates, Series 1998-10 (the
"Certificates"), including the Class B-4, Class B-5,
Class B-6 (the "Privately Offered Certificates
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered
Certificates, we confirm that:
(i) we understand that the Privately Offered
Certificates are not being registered under
the Securities Act of 1933, as amended (the
"Act") or any applicable state securities or
"Blue Sky" laws, and are being sold to us in
a transaction that is exempt from the
registration requirements of such laws;
(ii) any information we desired concerning the
Certificates, including the Privately Offered
Certificates, the trust in which the
Certificates represent the entire beneficial
ownership interest (the "Trust") or any other
matter we deemed relevant to our decision to
purchase Privately Offered Certificates has
been made available to us;
(iii) we are able to bear the economic risk of
investment in Privately Offered Certificates;
we are an institutional "accredited investor"
as defined in Section 501(a) of Regulation D
promulgated under the Act and a sophisticated
institutional investor;
(iv) we are acquiring Privately Offered
Certificates for our own account, not as
nominee for any other person, and not with a
present view to any distribution or other
disposition of the Privately Offered
Certificates;
(v) we agree the Privately Offered Certificates
must be held indefinitely by us (and may not
be sold, pledged, hypothecated or in any way
disposed of) unless subsequently registered
under the Act and any applicable state
securities or "Blue Sky" laws or an exemption
from the registration requirements of the Act
and any applicable state securities or "Blue
Sky" laws is available;
(vi) we agree that in the event that at some
future time we wish to dispose of or exchange
any of the Privately Offered Certificates
(such disposition or exchange not being
currently foreseen or contemplated), we will
not transfer or exchange any of the Privately
Offered Certificates unless:
(A) (1) the sale is to an Eligible
Purchaser (as defined below), (2) if required
by the Pooling and Servicing Agreement (as
defined below) a letter to substantially the
same effect as either this letter or, if the
Eligible Purchaser is a Qualified
Institutional Buyer as defined under Rule
144A of the Act, the Rule 144A and Related
Matters Certificate in the form attached to
the Pooling and Servicing Agreement (as
defined below) (or such other documentation
as may be acceptable to the Trustee) is
executed promptly by the purchaser and
delivered to the addressees hereof and (3)
all offers or solicitations in connection
with the sale, whether directly or through
any agent acting on our behalf, are limited
only to Eligible Purchasers and are not made
by means of any form of general solicitation
or general advertising whatsoever; and
(B) if the Privately Offered Certificate
is not registered under the Act (as to which
we acknowledge you have no obligation), the
Privately Offered Certificate is sold in a
transaction that does not require
registration under the Act and any applicable
state securities or "blue sky" laws and, if
Bankers Trust Company of California, N.A.(the
"Trustee") so requests, a satisfactory
Opinion of Counsel is furnished to such
effect, which Opinion of Counsel shall be an
expense of the transferor or the transferee;
(vii) we agree to be bound by all of the terms
(including those relating to restrictions on
transfer) of the Pooling and Servicing
Agreement (as defined below), pursuant to
which the Trust was formed; we have reviewed
carefully and understand the terms of the
Pooling and Servicing Agreement;
(viii) we either: (i) are not acquiring the
Privately Offered Certificate directly or
indirectly by, or on behalf of, an employee
benefit plan or other retirement arrangement
which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as
amended ("ERISA"), and/or section 4975 of the
Internal Revenue Code of 1986, as amended
(the "Code"), or (ii) hereby certify that the
proposed transfer and/or holding of a
Privately Offered Certificate and the
servicing, management and/or operation of the
Trust: (i) will not result in a prohibited
transaction under Section 406 of ERISA or
Section 4975 of the Code which is not covered
under an individual or class prohibited
transaction exemption including but not
limited to Department of Labor Prohibited
Transaction Exemption ("PTE") 84-14 (Class
Exemption for Plan Asset Transactions
Determined by Independent Qualified
Professional Asset Managers), PTE 91-38
(Class Exemption for Certain Transactions
Involving Bank Collective Investment Funds),
PTE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company
Pooled Separate Accounts), PTE 95-60 (Class
Exemption for Certain Transactions Involving
Insurance Company General Accounts) and PTCE
96-23 (Class Exemption for Plan Asset
Transactions Determined by In-House Asset
Managers and (ii) will not give rise to any
additional fiduciary duties under ERISA on
the part of the Master Servicer or the
Trustee.
(ix) We understand that each of the Class X-0, X-0
and B-6 Certificates bears, and will continue
to bear, legends to substantially the
following effect: "THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR
THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN
THE MEANING THEREOF IN RULE 501(a)(1), (2),
(3) or (7) OF REGULATION D UNDER THE ACT OR
ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS
COME WITHIN SUCH PARAGRAPHS PURCHASING NOT
FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM PROVIDED IN THE AGREEMENT AND (B) THE
RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER,
RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE
JURISDICTION." "THIS CERTIFICATE MAY NOT BE
ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, AND/OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED
TRANSFER AND/OR HOLDING OF A CERTIFICATE AND
THE SERVICING, MANAGEMENT AND/OR OPERATION OF
THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT
IN ANY PROHIBITED TRANSACTION WHICH IS NOT
COVERED UNDER AN INDIVIDUAL OR CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING,
BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION ("PTE") 84-14, XXX 00-00, XXX 00-0,
XXX 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE
RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON
THE PART OF THE MASTER SERVICER OR THE
TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY
AN OWNER OF A BOOK- ENTRY CERTIFICATE OR A
GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF
OF A HOLDER OF A PRIVATE CERTIFICATE OR CLASS
X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL
NOT APPLY TO THE CLASS X CERTIFICATES EITHER:
(I) IN THE EVENT THAT THE CLASS X
CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN
ENTITY WHICH HAS BEEN GRANTED AN EXEMPTION BY
THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30,
OR SUCH ENTITY ACTS AS A SELLING AGENT FOR
SUCH CLASS X CERTIFICATES OR (II) IN
SECONDARY MARKET TRANSFERS THEREAFTER."
"Eligible Purchaser" means a corporation, partnership or other
entity which we have reasonable grounds to believe and do believe (i) can
make representations with respect to itself to substantially the same
effect as the representations set forth herein, and (ii) is either a
Qualified Institutional Buyer as defined under Rule 144A of the Act or an
institutional "Accredited Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of
November 1, 1998 among Structured Asset Mortgage Investments Inc., Liberty
Lending Services, Inc. and Bankers Trust Company of California, N.A., as
Trustee (the "Pooling and Servicing Agreement").
If the Purchaser proposes that its Certificates be registered
in the name of a nominee on its behalf, the Purchaser has identified such
nominee below, and has caused such nominee to complete the Nominee
Acknowledgment at the end of this letter.
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the
undersigned who is duly authorized to do so on behalf of the undersigned
Eligible Purchaser on the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
---------------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Purchaser identified above, for whom the
undersigned is acting as nominee.
[NAME OF NOMINEE]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
EXHIBIT F-2
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
[SELLER]
Bankers Trust Company of
California, N.A.
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Attention: Corporate Trust Department,
ref: Bear Xxxxxxx/Liberty (SAMI) 1998-10
Structured Asset Mortgage Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Structured Asset Mortgage Investments Trust 1998-10
Mortgage Pass- Through Certificates, Series 1998-10 (the
"Certificates"), including the Class B-4, Class B-5,
Class B-6 Cert(the "Privately Offered Certificates")
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered
Certificates, the undersigned certifies to each of the parties to whom this
letter is addressed that it is a qualified institutional buyer (as defined
in Rule 144A under the Securities Act of 1933, as amended (the "Act")) as
follows:
1. It owned and/or invested on a discretionary basis
eligible securities (excluding affiliate's securities,
bank deposit notes and CD's, loan participations,
repurchase agreements, securities owned but subject to a
repurchase agreement and swaps), as described below:
Date: _____________, 19__ (must be on or after the close of
its most recent fiscal year)
Amount: $_________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the
following entities:
(1) o an insurance company as defined in Section
2(13) of the Act; or1
(2) o an investment company registered under the
Investment Company Act or any business
development company as defined in Section
2(a)(48) of the Investment Company Act of
1940; or
(3) o a Small Business Investment Company
licensed by the U.S. Small Business
Administration under Section 301(c) or
(d) of the Small Business Investment
Act of 1958; or
(4) o a plan (i) established and maintained
by a state, its political subdivisions,
or any agency or instrumentality of a
state or its political subdivisions,
the laws of which permit the purchase
of securities of this type, for the
benefit of its employees and (ii) the
governing investment guidelines of
which permit the purchase of securities
of this type; or
---------------------
1 A purchase by an insurance company for one or more of its separate
accounts, as defined by Section 2(a)(37) of the Investment Company
Act of 1940, which are neither registered nor required to be
registered thereunder, shall be deemed to be a purchase for the
account of such insurance company.
(5) o a business development company as
defined in Section 202(a)(22) of the
Investment Advisers Act of 1940; or
(6) o a corporation (other than a U.S. bank,
savings and loan association or
equivalent foreign institution),
partnership, Massachusetts or similar
business trust, or an organization
described in Section 501(c)(3) of the
Internal Revenue Code; or
(7) o a U.S. bank, savings and loan
association or equivalent foreign
institution, which has an audited net
worth of at least $25 million as
demonstrated in its latest annual
financial statements; or
(8) o an investment adviser registered under the
Investment Advisers Act; or
b. o greater than $10 million, and the undersigned
is a broker- dealer registered with the SEC;
or
c. o less than $10 million, and the undersigned is
a broker- dealer registered with the SEC and
will only purchase Rule 144A securities in
transactions in which it acts as a riskless
principal (as defined in Rule 144A); or
d. o less than $100 million, and the undersigned
is an investment company registered under the
Investment Company Act of 1940, which,
together with one or more registered
investment companies having the same or an
affiliated investment adviser, owns at least
$100 million of eligible securities; or
e. o less than $100 million, and the undersigned
is an entity, all the equity owners of which
are qualified institutional buyers.
The undersigned further certifies that it is purchasing a
Privately Offered Certificate for its own account or for the account of
others that independently qualify as "Qualified Institutional Buyers" as
defined in Rule 144A. It is aware that the sale of the Privately Offered
Certificates is being made in reliance on its continued compliance with
Rule 144A. It is aware that the transferor may rely on the exemption from
the provisions of Section 5 of the Act provided by Rule 144A. The
undersigned understands that the Privately Offered Certificates may be
resold, pledged or transferred only to (i) a person reasonably believed to
be a Qualified Institutional Buyer that purchases for its own account or
for the account of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance in Rule 144A,
or (ii) an institutional "accredited investor," as such term is defined
under Rule 501 of the Act in a transaction that otherwise does not
constitute a public offering.
The undersigned agrees that if at some future time it
wishes to dispose of or exchange any of the Privately Offered Certificates,
it will not transfer or exchange any of the Privately Offered Certificates
to a Qualified Institutional Buyer without first obtaining a Rule 144A and
Related Matters Certificate in the form hereof from the transferee and
delivering such certificate to the addressees hereof. Prior to making any
transfer of Privately Offered Certificates, if the proposed Transferee is
an institutional "accredited investor," the transferor shall obtain from
the transferee and deliver to the addressees hereof an Investment Letter in
the form attached to the Pooling and Servicing Agreement dated as of
November 1, 1998 among Structured Asset Mortgage Investments Inc., as
Seller, Liberty Lending Services, Inc. as Master Servicer, and Bankers
Trust Company of California, N.A., as Trustee, pursuant to which the
Certificates were issued.
The undersigned certifies that it either: (i) is not
acquiring the Privately Offered Certificate directly or indirectly by, or
on behalf of, an employee benefit plan or other retirement arrangement
which is subject to Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and/or section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or (ii) the proposed transfer and/or
holding of a Privately Offered Certificate and the servicing, management
and/or operation of the Trust and its assets: (i) will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code which is not covered under an individual or class prohibited
transaction exemption including but not limited to Department of Labor
Prohibited Transaction Exemption ("PTE") 84-14 (Class Exemption for Plan
Asset Transactions Determined by Independent Qualified Professional Asset
Managers), PTE 91-38 (Class Exemption for Certain Transactions Involving
Bank Collective Investment Funds), PTE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company Pooled Separate Accounts), PTE
95-60 (Class Exemption for Certain Transactions Involving Insurance Company
General Accounts) and PTCE 96-23 (Class Exemption for Plan Asset
Transactions Determined by In-House Asset Managers and (ii) will not give
rise to any additional fiduciary duties under ERISA on the part of the
Master Servicer or the Trustee.
If the Purchaser proposes that its Certificates be
registered in the name of a nominee on its behalf, the Purchaser has
identified such nominee below, and has caused such nominee to complete the
Nominee Acknowledgment at the end of this letter.
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the
undersigned who is duly authorized to do so on behalf of the undersigned
Eligible Purchaser on the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
----------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Purchaser identified above, for whom the
undersigned is acting as nominee.
[NAME OF NOMINEE]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
EXHIBIT G
FORM OF INITIAL CERTIFICATION
Structured Asset Mortgage Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Liberty Lending Services, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Pooling and Servicing Agreement dated as of
November 1, 1998, among Structured Asset
Mortgage Investments Inc., as seller, Liberty
Lending Services, Inc., as master servicer,
and Bankers Trust Company of California,
N.A., as trustee, regarding Structured Asset
Mortgage Investments Trust 1998-10, Mortgage
Pass-Through Certificates, Series 1998-10
-------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies
that, except as otherwise noted on the attached exception report, that as
to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has
reviewed the Mortgage File and the Mortgage Loan Schedule and has
determined that: (i) all documents required to be included in the Mortgage
File pursuant to the Pooling and Servicing Agreement are in its possession;
(ii) such documents have been reviewed by it and appear regular on their
face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents,
the information set forth in the Mortgage Loan Schedule as to Mortgagor
Name, original principal balance and loan number respecting such Mortgage
Loan is correct and accurately reflects the information in the Mortgage
Loan File.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The
Trustee makes no representation that any documents specified in subclauses
(iv), (v) and (vii) of Section 2.01(b) should be included in any Mortgage
File. The Trustee makes no representations as to: (i) the validity,
legality, enforceability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as
Trustee
By:_______________________
Name:
Title:
EXHIBIT H
FORM OF FINAL CERTIFICATION
Structured Asset Mortgage Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Liberty Lending Services, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Pooling and Servicing Agreement dated as of
November 1, 1998, among Structured Asset
Mortgage Investments Inc., as seller, Liberty
Lending Services, Inc., as master servicer,
and Bankers Trust Company of California,
N.A., as trustee, regarding Structured Asset
Mortgage Investment Trust 1998-10, Mortgage
Pass-Through Certificates, Series 1998-10
-------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies
that, except as otherwise noted on the attached exception report, that as
to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has
received the documents set forth in Section 2.01 and has determined that
(i) all documents required to be included in the Mortgage File pursuant to
the Pooling and Servicing Agreement are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face, have,
where applicable, been executed and relate to such Mortgage Loan; and (iii)
based on examination by it, and only as to such documents, the information
set forth in the Mortgage Loan Schedule as to Mortgagor name, original
principal balance and loan number respecting such Mortgage Loan is correct
and accurately reflects the information in the Mortgage Loan File.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The
Trustee makes no representation that any documents specified in subclauses
(iv), (v) and (vii) of Section 2.01(b) should be included in any Mortgage
File. The Trustee makes no representations as to: (i) the validity,
legality, enforceability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A. as Trustee
By:_______________________
Name:
Title:
EXHIBIT I
FORM OF ERISA LETTER FOR CLASS X CERTIFICATES
[Date]
[SELLER]
Bankers Trust Company of
California, N.A.
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Attention: Corporate Trust Department,
ref: Bear Xxxxxxx/Liberty (SAMI) 1998-10
Structured Asset Mortgage Investments Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Structured Asset Mortgage Investments Trust 1998-10,
Mortgage Pass-Through Certificates, Series 1998-10 (the
"Certificates"), including the Class X Certificates(the
"Class X Certificates")
-------------------------------------------------------
Dear Ladies and Gentlemen:
In connection with our purchase of Class X Certificates, we
confirm that:
(i) we either:
(A) (i) are not acquiring the Class X
Certificates directly or indirectly by, or on
behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I
of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and/or section 4975 of
the Internal Revenue Code of 1986, as amended (the
"Code"), or (ii) hereby certify that the proposed
transfer and/or holding of a Class X Certificate
and the servicing, management and/or operation of
the Trust: (i) will not result in a prohibited
transaction under Section 406 of ERISA or Section
4975 of the Code which is not covered under an
individual or class prohibited transaction
exemption including but not limited to Department
of Labor Prohibited Transaction Exemption ("PTE")
84-14 (Class Exemption for Plan Asset Transactions
Determined by Independent Qualified Professional
Asset Managers), PTE 91-38 (Class Exemption for
Certain Transactions Involving Bank Collective
Investment Funds), PTE 90-1 (Class Exemption for
Certain Transactions Involving Insurance Company
Pooled Separate Accounts), PTE 95-60 (Class
Exemption for Certain Transactions Involving
Insurance Company General Accounts) and PTCE 96-23
(Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers and (ii) will
not give rise to any additional fiduciary duties
under ERISA on the part of either Master Servicer
or the Trustee; or
(B) hereby certify that the Class X
Certificates either: (i) are underwritten, placed
by an entity which has been granted an exemption by
the Department of Labor similar to PTE 90-30, or
such entity acts as a selling agent for such Class
X Certificates or (ii) are being transferred in a
secondary market transfer thereafter;
(ii) We understand that if (B) above does not
apply, the Class X Certificates bear, and
will continue to bear, a legend to
substantially the following effect: "THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, UNLESS THE
PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT
AND/OR OPERATION OF THE TRUST AND ITS ASSETS:
(I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN
INDIVIDUAL OR CLASS PROHIBITED TRANSACTION
EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION EXEMPTION ("PTE")
84-14, XXX 00-00, XXX 00-0, XXX 95-60 OR PTE
96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF
THE MASTER SERVICER OR THE TRUSTEE, WHICH
WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK- ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF
OF A HOLDER OF A PRIVATE CERTIFICATE OR CLASS
X CERTIFICATE. THE ABOVE RESTRICTIONS SHALL
NOT APPLY TO THE CLASS X CERTIFICATES EITHER:
(I) IN THE EVENT THAT THE CLASS X
CERTIFICATES ARE UNDERWRITTEN, PLACED BY AN
ENTITY WHICH HAS BEEN GRANTED AN EXEMPTION BY
THE DEPARTMENT OF LABOR SIMILAR TO PTE 90-30,
OR SUCH ENTITY ACTS AS A SELLING AGENT FOR
SUCH CLASS X CERTIFICATES OR (II) IN
SECONDARY MARKET TRANSFERS THEREAFTER."
Terms not otherwise defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of
November 1, 1998 among Structured Asset Mortgage Investments Inc., Liberty
Lending Services, Inc. and Bankers Trust Company of California, N.A., as
Trustee (the "Pooling and Servicing Agreement").
If the Purchaser proposes that its Certificates be registered
in the name of a nominee on its behalf, the Purchaser has identified such
nominee below, and has caused such nominee to complete the Nominee
Acknowledgment at the end of this letter.
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the
undersigned who is duly authorized to do so on behalf of the undersigned on
the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
---------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Purchaser identified above, for whom the
undersigned is acting as nominee.
[NAME OF NOMINEE]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
