SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
May 14, 1999
STRUCTURED ASSET SECURITIES CORPORATION (as Depositor under the Trust
Agreement, dated as of May 1, 1999, providing for the issuance of
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1999-ALS2)
Structured Asset Securities Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 333-68513-05 74-2440850
------------------------- ------------ --------------
State or Other Jurisdiction (Commission (I.R.S. Employer
Of Incorporation) File Number) Identification No.)
200 Vesey Street
New York, New York 10285
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(Address of Principal Executive (Zip Code)
Offices)
Registrant's telephone number, including area code: (212) 526-5594
No Change
-----------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events
The Registrant registered issuances of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"),
by a Registration Statement on Form S-3 (Registration File No. 333-68513) (the
"Registration Statement"). Pursuant to the Registration Statement, the
Registrant issued $357,803,847 in aggregate principal amount of Class A1, Class
A2, Class A3, Class A4, Class A5, Class AP, Class B1, Class B2, Class B3 and
Class R Certificates of its Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 1999-ALS2 on May 27, 1999. This Current Report
on Form 8-K is being filed to satisfy an undertaking, contained in the
definitive Prospectus dated January 15, 1999, as supplemented by the Prospectus
Supplement dated May 14, 1999 (the "Prospectus Supplement"), to file a copy of
the Trust Agreement (as defined below) executed in connection with the issuance
of the Certificates, a form of which was filed as an exhibit to the Registration
Statement.
The Certificates were issued pursuant to a Trust Agreement (the "Trust
Agreement"), attached hereto as Exhibit 4.1, dated as of May 1, 1999, among
Structured Asset Securities Corporation, as depositor (the "Depositor"), Aurora
Loan Services Inc., as master servicer, and The Chase Manhattan Bank, as trustee
(the "Trustee"). The "Certificates" consist of the following classes: Class A1,
Class A2, Class A3, Class A4, Class A5, Class AP, Class B1, Class B2, Class B3,
Class B4, Class B5, Class B6 and Class R. The Certificates evidence all the
beneficial ownership interest in a trust fund (the "Trust Fund") that consists
primarily of a pool of fixed rate, conventional, first lien residential mortgage
loans (the "Mortgage Loans") with an aggregate outstanding principal balance of
$364,365,016 as of May 1, 1999, together with certain other assets. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
them in the Trust Agreement.
<PAGE>
Item 7. Financial Statements; Pro Forma Financial Information and Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1.1 Terms Agreement, dated May 14, 1999, between Structured Asset
Securities Corporation and Lehman Brothers Inc.
4.1 Trust Agreement, dated as of May 1, 1999, among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services Inc., as
Master Servicer, and The Chase Manhattan Bank, as Trustee.
4.2 Insurance Agreement, dated as of May 1, 1999, among MBIA Insurance
Corporation, as Insurer, Lehman Capital, a Division of Lehman
Brothers Holdings Inc., as Seller, Structured Asset Securities
Corporation, as Depositor and The Chase Manhattan Bank, as Trustee.
99.1 Mortgage Loan Sale and Assignment Agreement, dated as of May 1,
1999, between Lehman Capital, A Division of Lehman Brothers
Holdings Inc., as Seller, and Structured Asset Securities
Corporation, as Purchaser.
99.2 Servicing Agreement, dated as of May 1, 1999, between Lehman
Capital, A Division of Lehman Brothers Holdings Inc., and Aurora
Loan Services Inc., as servicer.
99.3* Flow Servicing Agreement, dated as of September 1, 1997, between
Lehman Capital, A Division of Lehman Brothers Holdings Inc., and
Aurora Loan Services Inc., as servicer.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Joseph J. Kelly
-----------------------------
Name: Joseph J. Kelly
Title: Vice President
Dated: June 9, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
1.1 Terms Agreement, dated May 14, 1999, between
Structured Asset Securities Corporation and
Lehman Brothers Inc.
4.1 Trust Agreement, dated as of May 1, 1999,
among Structured Asset Securities Corporation,
as Depositor, Aurora Loan Services Inc., as
Master Servicer, and The Chase Manhattan Bank,
as Trustee.
4.2 Insurance Agreement, dated as of May 1, 1999,
among MBIA Insurance Corporation, as Insurer,
Lehman Capital, a Division of Lehman Brothers
Holdings Inc., as Seller, Structured Asset
Securities Corporation, as Depositor and
The Chase Manhattan Bank, as Trustee.
99.1 Mortgage Loan Sale and Assignment Agreement,
dated as of May 1, 1999, between Lehman Capital,
A Division of Lehman Brothers Holdings Inc.,
as Seller, and Structured Asset Securities
Corporation, as Purchaser.
99.2 Servicing Agreement, dated as of May 1, 1999,
between Lehman Capital, A Division of Lehman
Brothers Holdings Inc., and Aurora Loan Services
Inc., as servicer.
99.3* Flow Servicing Agreement, dated as of
September 1, 1997, between Lehman Capital,
A Division of Lehman Brothers Holdings Inc., and
Aurora Loan Services Inc., as servicer.
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* Incorporated by reference to the Depositor's Current Report on Form 8-K
dated March 30, 1998, filed with the Securities and Exchange Commission
on April 14, 1998 (File No. 333-47499).
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-ALS2
TERMS AGREEMENT
Dated: May 14, 1999
To: Structured Asset Securities Corporation, as Depositor under the
Trust Agreement dated as of May 1, 1999 (the "Trust Agreement").
Re: Underwriting Agreement Standard Terms dated as of May 16, 1996
(the "Standard Terms," and together with this Terms Agreement,
the "Agreement").
Series Designation: Series 1999-ALS2.
Terms of the Series 1999-ALS2 Certificates: Structured Asset Securities
Corporation, Series 1999-ALS2 Mortgage Pass-Through Certificates, Class A1,
Class A2, Class A3, Class A4, Class A5, Class AP, Class B1, Class B2, Class
B3, Class B4, Class B5, Class B6 and Class R (the "Certificates") will
evidence, in the aggregate, the entire beneficial ownership interest in a
trust fund (the "Trust Fund"). The primary assets of the Trust Fund consist of
a pool of fixed rate, conventional, first lien residential mortgage loans (the
"Mortgage Loans"). Only the Class A1, Class A2, Class A3, Class A4, Class A5,
Class AP, Class B1, Class B2, Class B3 and Class R Certificates (the "Offered
Certificates") are being sold pursuant to the terms hereof.
Registration Statement: File Number 333-68513.
Certificate Ratings: It is a condition of Closing that at the Closing Date:
the Class A1, Class A2, Class A3 and Class A4 Certificates be rated "AAA" by
each of Duff & Phelps Credit Rating Co. ("DCR"), and Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. ("S&P," together with
DCR, the "Rating Agencies"); the Class AP and Class A5 Certificates be rated
"AAA" by each of DCR and "AAAr" by S&P; the Class B1 Certificates be rated
"AA" by DCR; the Class B2 Certificates be rated "A" by DCR; and the Class B3
Certificates be rated "BBB" by DCR.
Terms of Sale of Offered Certificates: The Depositor agrees to sell to Lehman
Brothers Inc. (the "Underwriter") and the Underwriter agrees to purchase from
the Depositor, the Offered Certificates in the principal amounts and prices
set forth on Schedule 1 annexed hereto. The purchase price for the Offered
Certificates shall be the Purchase Price Percentage set forth in Schedule 1
plus accrued interest at the initial interest rate per annum from and
including the Cut-off Date up to, but not including, the Closing Date.
The Underwriter will offer the Offered Certificates to the public from time to
time in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
Cut-off Date: May 1, 1999.
Closing Date: 10:00 A.M., New York time, on or about May 27, 1999. On the
Closing Date, the Depositor will deliver the Offered Certificates to the
Underwriter against payment therefor for the account of the Underwriter.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Depositor and the Underwriter in accordance with its terms.
LEHMAN BROTHERS INC.
By: /s/ Stanley Labanowski
Name: Stanley Labanowski
Title: Vice President
Accepted:
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Joseph J. Kelly
Name: Joseph J. Kelly
Title: Vice President
<PAGE>
Schedule 1
Certificate Purchase
Initial Certificate Interest Price
Class Principal Amount(1) Rate Percentage
Class A1 $ 59,060,000 6.75% 99.3046875%
Class A2 228,800,000 6.75% 99.3046875%
Class A3 23,000,000 6.65% 99.3046875%
Class A4 15,000,000 6.75% 99.3046875%
Class A5 (2) 6.75% 0.0000000%
Class AP 245,747.46 (3) 65.0000000%
Class B1 20,404,000 6.75% 94.1250000%
Class B2 7,651,000 6.75% 91.6250000%
Class B3 3,643,000 6.75% 84.0000000%
Class R 100 6.75% 99.3046875%
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(1) Approximate.
(2) The Class A5 Certificates will have no Certificate Principal Amount and
will accrue interest on a calculated aggregate Notional Amount as
described in the Prospectus Supplement under "Description of the
Certificates - Distributions of Interest".
(3) The Class AP Certificates are principal-only certificates and,
accordingly, will not accrue interest.
Exhibit 4.1 for EDGAR Purposes
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
and
THE CHASE MANHATTAN BANK, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of May 1, 1999
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-ALS2
<PAGE>
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................3
Section 1.02. Calculations Respecting Mortgage Loans.......................34
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans...............................................34
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for Trust Fund...............................................37
Section 2.03. Representations and Warranties of the Depositor..............39
Section 2.04. Discovery of Breach..........................................41
Section 2.05. Repurchase, Purchase or Substitution of Mortgage
Loans.........................,..............................41
Section 2.06. Grant Clause.................................................42
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates.............................................42
Section 3.02. Registration.................................................43
Section 3.03. Transfer and Exchange of Certificates........................43
Section 3.04. Cancellation of Certificates.................................46
Section 3.05. Replacement of Certificates..................................46
Section 3.06. Persons Deemed Owners........................................47
Section 3.07. Temporary Certificates.......................................47
Section 3.08. Appointment of Paying Agent..................................47
Section 3.09. Book-Entry Certificates......................................47
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account...........................................49
Section 4.02. Application of Funds in the Collection Account...............51
Section 4.03. Reports to Certificateholders................................52
Section 4.04. Certificate Account..........................................55
Section 4.05. The Reserve Fund.............................................56
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally......................................57
Section 5.02. Distributions from the Certificate Account...................57
Section 5.03. Allocation of Realized Losses................................62
Section 5.04. Advances by Master Servicer and Trustee......................63
Section 5.05. Compensating Interest Payments...............................64
Section 5.06. Distributions of Principal on Redemption Certificates........64
Section 5.07. The Certificate Insurance Policies.........................69
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee............................................72
Section 6.02. Certain Matters Affecting the Trustee........................75
Section 6.03. Trustee Not Liable for Certificates..........................76
Section 6.04. Trustee May Own Certificates.................................76
Section 6.05. Eligibility Requirements for Trustee.........................76
Section 6.06. Resignation and Removal of Trustee...........................77
Section 6.07. Successor Trustee............................................77
Section 6.08. Merger or Consolidation of Trustee...........................78
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.....78
Section 6.10. Authenticating Agents........................................80
Section 6.11. Indemnification of Trustee...................................80
Section 6.12. Fees and Expenses of Trustee.................................81
Section 6.13. Collection of Monies.........................................81
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor....................................................81
Section 6.15. Additional Remedies of Trustee Upon Event of Default.........85
Section 6.16. Waiver of Defaults...........................................85
Section 6.17. Notification to Holders......................................85
Section 6.18. Directions by Certificateholders and Duties of
Trustee During Event of Default..............................86
Section 6.19. Action Upon Certain Failures of the Master Servicer
and Upon Event of Default....................................86
Section 6.20. Preparation of Tax Returns and Other Reports.................86
ARTICLE VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation
of All Mortgage Loans........................................87
Section 7.02. Procedure Upon Termination of Trust Fund.....................88
Section 7.03. Additional Trust Fund Termination Requirements...............89
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders..............................89
Section 8.02. Access to List of Holders....................................90
Section 8.03. Acts of Holders of Certificates..............................91
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer................................92
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy........................92
Section 9.03. Master Servicer's Financial Statements and Related
Information..................................................92
Section 9.04. Power to Act; Procedures.....................................93
Section 9.05. Servicing Agreements Between the Master Servicer
and Servicers; Enforcement of Servicers' Obligations.........94
Section 9.06. Collection of Taxes, Assessments and Similar Items...........95
Section 9.07. Termination of Servicing Agreements; Successor Servicers.....95
Section 9.08. Master Servicer Liable for Enforcement.......................96
Section 9.09. No Contractual Relationship Between Servicers and Trustee
or Depositor.................................................96
Section 9.10. Assumption of Servicing Agreement by Trustee.................96
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.................97
Section 9.12. Release of Mortgage Files....................................97
Section 9.13. Documents, Records and Funds in Possession of
Master Servicer To Be Held for Trustee.......................98
Section 9.14. Representations and Warranties of the Master Servicer........99
Section 9.15. Closing Certificate and Opinion.............................101
Section 9.16. Standard Hazard and Flood Insurance Policies................101
Section 9.17. Presentment of Claims and Collection of Proceeds............102
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies......102
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents......................................102
Section 9.20. Realization Upon Defaulted Mortgage Loans...................103
Section 9.21. Compensation to the Master Servicer.........................103
Section 9.22. REO Property................................................103
Section 9.23. [Omitted]...................................................104
Section 9.24. Reports to the Trustee......................................104
Section 9.25. Annual Officer's Certificate as to Compliance...............104
Section 9.26. Annual Independent Accountants' Servicing Report............105
Section 9.27. Merger or Consolidation.....................................105
Section 9.28. Resignation of Master Servicer..............................106
Section 9.29. Assignment or Delegation of Duties by the
Master Servicer.............................................106
Section 9.30. Limitation on Liability of the Master Servicer
and Others..................................................106
Section 9.31. Indemnification; Third-Party Claims.........................107
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration........................................107
Section 10.02. Prohibited Transactions and Activities......................109
Section 10.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status........................................109
Section 10.04. REO Property................................................110
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment.....................111
Section 11.02. Entire Agreement............................................111
Section 11.03. Amendment...................................................111
Section 11.04. Voting Rights...............................................112
Section 11.05. Provision of Information....................................112
Section 11.06. Governing Law...............................................113
Section 11.07. Notices.....................................................113
Section 11.08. Severability of Provisions..................................113
Section 11.09. Indulgences; No Waivers.....................................113
Section 11.10. Headings Not To Affect Interpretation.......................113
Section 11.11. Benefits of Agreement.......................................114
Section 11.12. Special Notices to the Rating Agencies......................114
Section 11.13. Counterparts................................................115
Section 11.14. Transfer of Servicing.......................................115
Section 11.15. Matters Relating to the Certificate Insurance Policies......116
<PAGE>
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreement
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit M The Certificate Insurance Policies
Exhibit N The Insurance Agreement
Schedule A Mortgage Loan Schedule
Schedule B Principal Amount Schedules
<PAGE>
This TRUST AGREEMENT, dated as of May 1, 1999 (the "Agreement"), is by and
among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as
depositor (the "Depositor"), AURORA LOAN SERVICES INC., as master servicer (the
"Master Servicer"), and THE CHASE MANHATTAN BANK, a New York banking
corporation with its main office in New York, New York, as trustee (the
"Trustee").
PRELIMINARY STATEMENT
All defined terms used in this Preliminary Statement that are not defined
in the Preliminary Statement are defined in Article I (Definitions) herein.
The Depositor has acquired the Mortgage Loans from Lehman Capital, A
Division of Lehman Brothers Holdings Inc. (the "Seller"), and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trust Fund, as consideration
for its transfer to the Trust Fund of the Mortgage Loans (exclusive of any
Retained Interest) and the other property constituting the Trust Fund. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the conveyance to the Trustee of the Mortgage Loans and the other
property constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates and the
Certificate Insurer. The Depositor and the Master Servicer are entering into
this Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be treated
for federal income tax purposes as comprising two real estate mortgage
investment conduits (each a "REMIC" or, in the alternative , the Lower Tier
REMIC and the Upper Tier REMIC, respectively). Each Certificate, other than the
Class R Certificate, represents ownership of a regular interest in the Upper
Tier REMIC for purposes of the REMIC Provisions. The Class R Certificate
represents ownership of the sole class of residual interest in each of the
Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC Provisions.
The Upper Tier REMIC shall hold as assets the several classes of uncertificated
Lower Tier Interests set out below.
Corresponding
Lower Tier Class Initial Class Class of
Designation Interest Rate Principal Amount Certificate(s)
Class LT-A1 6.75% $59,060,000.00 Class A1
Class LT-A2 6.75 228,800,000.00 Class A2
Class LT-A3 6.65 23,000,000.00 Class A3
Class LT-A4 6.75 15,000,000.00 Class A4
Class LT-A5(1) 6.75 - Class A5
Class LT-N(2) 6.75 100.00 Class R
Class LT-AP 0.00 245,747.46 Class AP
Class LT-B1 6.75 20,404,000.00 Class B1
Class LT-B2 6.75 7,651,000.00 Class B2
Class LT-B3 6.75 3,643,000.00 Class B3
Class LT-B4 6.75 2,186,000.00 Class B4
Class LT-B5 6.75 1,457,000.00 Class B5
Class LT-B6 6.75 2,918,168.70 Class B6
Class LT-R (3) (3) Class R
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(1) The Class A5 Certificates will be entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class A3 Interest
that, for any Distribution Date, can be expressed as the product of the
Class LT-A3 balance and a fixed rate of approximately 0.5043478261%.
(2) The Class R Certificate will be entitled to receive $100 of principal plus
interest at the rate of 6.75% from amounts payable with respect to the
Class LT-N Interest.
(3) The Class LTR does not have a stated principal amount or a stated interest
rate. Ownership of the Class LTR Interest will be evidenced by the Class R
Certificate.
The Lower Tier REMIC shall hold as assets all assets included in the Trust
Fund other than the uncertificated Lower Tier Interests, the Reserve Fund, the
Rounding Accounts and the Escrow Account.
Distributions of principal payments on each class of Lower Tier Interest
for any Distribution Date shall correspond to the principal distributions
required to be made on the Corresponding Class of Certificates on such
Distribution Date. Realized Losses and Net Prepayment Interest Shortfalls as of
any Distribution Date shall be allocated among the classes of Lower Tier
Interests in the same manner that such items are allocated among the
Corresponding Classes of Certificates.
The following table sets forth the Class designation, Interest Rate,
initial Class Principal Amount (or Class Notional Amount) and minimum
denomination for each Class of Certificates comprising the interests in the
Trust Fund created hereunder.
Initial Class Minimum
Class Designation Interest Rate Principal Amount Denominations
Class A1 6.75% $ 59,060,000.00 $100,000
Class A2 6.75 228,800,000.00 100,000
Class A3 6.65 23,000,000.00 1,000
Class A4 6.75 15,000,000.00 1,000
Class A5 6.75 (2) (2)
Class AP 0.00(1) 245,747.46 (1)
Class B1 6.75 20,404,000.00 100,000
Class B2 6.75 7,651,000.00 100,000
Class B3 6.75 3,643,000.00 100,000
Class B4 6.75 2,186,000.00 250,000
Class B5 6.75 1,457,000.00 250,000
Class B6 6.75 2,918,168.70 250,000
Class R 6.75 100.00 100
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(1) The Class AP Certificate is a principal-only certificate and, accordingly,
will not accrue interest. The Class AP Certificate will be issued as a
single certificate in book-entry form equal to its initial Class Principal
Amount.
(2) The Class A5 Certificate will accrue interest on a Class Notional Amount
determined as of any Distribution Date in accordance with the following
formula:
(Class of Principal Amount) ( Class Principal ) ( Class )
( of the Class A3 ) - (Amount of the Class A4) = (Notional)
( Certificates x 0.07 ) ( Certificates x 0.03% ) ( Amount )
------------------------------------------------------
6.75%
The Class A5 Certificates will be issued as a single certificate in
book-entry form representing the entire Notional Amount of such Class.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $364,365,016.16.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to the Servicer.
Accountant: A person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accretion Directed Certificate: None.
Accretion Termination Date: The first Distribution Date following the
Credit Support Depletion Date.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x) any
amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: None.
Accrual Component: None.
Accrual Period: With respect to any Distribution Date and any Class of
Certificates (other than any Class of Principal Only Certificates), the
one-month period beginning immediately following the end of the preceding
Accrual Period (or from the Cut-off Date, in the case of the first Accrual
Period) and ending on the last day of the month preceding the month in which
such Distribution Date occurs.
Accrued Certificate Interest: As to any Class of Certificates (other than
any Principal Only Certificates) and any Distribution Date, the product of the
Interest Rate for such Class of Certificates and the Class Principal Amount (or
Class Notional Amount) of such Class of Certificates immediately preceding such
Distribution Date, as reduced by (i) such Class's allocable share of the
interest portion of any Excess Losses for such Distribution Date and, after the
Credit Support Depletion Date, any Realized Losses for such date, (ii) such
Class's allocable share of any Relief Act Reductions for such date and (iii)
any Deferred Interest allocated to such Class on such date, in each case
allocable among the Senior Certificates (other than the Class AP Certificates)
and the Subordinate Certificates pro rata based on the Accrued Certificate
Interest otherwise distributable thereon. Interest will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
Additional Collateral: None.
Adjustable Rate Mortgage Loan: None.
Advance: An advance of the aggregate of payments of principal and interest
(net of the Master Servicing Fee and the Servicing Fee) on one or more Mortgage
Loans that were due on the Due Date in the related Due Period and not received
as of the close of business on the related Determination Date, required to be
made by or on behalf of the Master Servicer and any Servicer (or by the
Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Certificate Insurance Premium: As to any Distribution Date, the
sum of (a) the Class A3 Certificate Insurance Premium and the Class A4
Certificate Insurance Premium for such Distribution Date and (b) the amount of
any such Class A3 Certificate Insurance Premium or Class A4 Certificate
Insurance Premium, as applicable, that was not distributed to the Certificate
Insurer on any prior Distribution Date.
Aggregate Master Servicing Compensation: As to any Distribution Date, the
sum of (x) the aggregate of the Master Servicing Fees payable to the Master
Servicer in respect of such Distribution Date and (y) all income and gain
realized from the investment of funds in the Collection Account during the
period from and including the Deposit Date in the calendar month immediately
preceding the month in which such Distribution Date occurs, to but excluding
the Deposit Date relating to such Distribution Date.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: With respect to any Distribution Date,
the percentage equivalent of the fraction, the numerator of which is the sum of
the Class Principal Amounts of the Subordinate Certificates immediately prior
to such date and the denominator of which is the Non-AP Pool Balance for such
date.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements hereto.
AP Percentage: As to any Discount Mortgage Loan, the percentage equivalent
of a fraction, the numerator of which is 6.75% minus the Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is 6.75%. As to any
Non-Discount Mortgage Loan, 0.000%.
AP Principal Distribution Amount: For any Distribution Date, the sum of
the following amounts:
(i) the applicable AP Percentage of the principal portion of each
Scheduled Payment (without giving effect to any Debt Service Reduction
occurring prior to the Bankruptcy Coverage Termination Date) on each
Mortgage Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the applicable AP Percentage of each of the following amounts:
(1) each Principal Prepayment collected on a Mortgage Loan in the related
Mortgage Pool during the applicable Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net Liquidation
Proceeds (other than with respect to any Mortgage Loan that was finally
liquidated during the applicable Prepayment Period) representing or
allocable to recoveries of principal of such Mortgage Loan received during
the applicable Prepayment Period and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan (or, in the case of a
permitted substitution, amounts representing a principal adjustment)
actually received by the Trustee with respect to the applicable Prepayment
Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan that was finally liquidated during the related
Prepayment Period, the applicable AP Percentage of the related net
Liquidation Proceeds allocable to principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Appraised Value: With respect to any Mortgage Loan, the amount set forth
in an appraisal made in connection with the origination of such Mortgage Loan
as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall
not be responsible for determining whether any such assignment is in recordable
form.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's Certificate on
behalf of the Depositor.
Available Distribution Amount: As to any Distribution Date, the sum of the
following amounts:
(1) the total amount of all cash received by the Master Servicer
through the Remittance Date and deposited by the Master Servicer by the
Deposit Date for such Distribution Date on the Mortgage Loans (including
proceeds of any Insurance Policy and any other credit support relating to
such Mortgage Loans), plus all Advances made by the Master Servicer or any
Servicer (or the Trustee) for such Distribution Date, any Compensating
Interest Payment for such date and any amounts paid by any Servicer in
respect of Prepayment Interest Shortfalls in respect of the related
Mortgage Loans for such date, but not including:
(a) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(b) all Scheduled Payments of principal and interest collected
but due on a date subsequent to the related Due Period;
(c) all Principal Prepayments received or identified by the
applicable Servicer after the applicable Prepayment Period (together
with any interest payments received with such prepayments to the
extent that they represent the payment of interest accrued on the
related Mortgage Loans for the period subsequent to the applicable
Prepayment Period);
(d) any other unscheduled collection, including Net Liquidation
Proceeds and Insurance Proceeds, received by the Master Servicer
after the applicable Prepayment Period;
(e) all fees and amounts due or reimbursable to the Master
Servicer or any Servicer pursuant to the terms of this Agreement or
the applicable Servicing Agreement;
(f) any Prepayment Penalty Amounts;
(g) any Prepayment Interest Excess; and
(h) such portion of each payment in respect of interest
representing Retained Interest.
(2) any other payment made by any Servicer, the Seller, the
Depositor, or any other Person with respect to such Distribution Date
(including the Purchase Price with respect to any Mortgage Loan
repurchased by the Seller, the Depositor or any other Person).
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication as
a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or
insolvency proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking,
consenting to or acquiescing in the appointment of a trustee, receiver or
liquidator, dissolution, or termination, as the case may be, of such Person
pursuant to the provisions of either the United States Bankruptcy Code of 1986,
as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: The Distribution Date on which the
related Bankruptcy Loss Limit has been reduced to zero (or less than zero).
Bankruptcy Loss Limit: $100,000, which amount shall be reduced from time
to time by the amount of Bankruptcy Losses allocated to the Certificates.
Bankruptcy Losses: Any Realized Losses (as reported by the applicable
Servicer to the Master Servicer) arising from a proceeding under the United
States Bankruptcy Code or any other similar state law or other proceeding with
respect to the Mortgagor of or Mortgaged Property under a Mortgage Loan,
including, without limitation, any such loss arising from (a) the difference
between (i) the principal amount that would have been due under the original
scheduled payments of principal and interest due on the related Mortgage Loan
and (ii) the value established in the relevant court with respect to such
Mortgaged Property, including without limitation a Deficient Valuation, or (b)
a Debt Service Reduction.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the Trustee to
the effect that any proposed transfer will not (i) cause the assets of the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of
which shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer permitted and
Definitive Certificates are to be issued to Certificate Owners, such Book-Entry
Certificates shall no longer be "Book-Entry Certificates." As of the Closing
Date, the following Classes of Certificates constitute Book-Entry Certificates:
Class A1, Class A2, Class A3, Class A4, Class A5 , Class AP, Class B1, Class B2
and Class B3.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day on
which banking institutions in New York, New York or, if other than New York,
the city in which the Corporate Trust Office of the Trustee is located or the
principal place of business of the Certificate Insurer is located, or the State
of Colorado, or (iii) with respect to any Remittance Date or any Servicer
reporting date, the States specified in the definition of "Business Day" in the
applicable Servicing Agreement, are authorized or obligated by law or executive
order to be closed.
Certificate: Any one of the certificates signed and countersigned by the
Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in accordance
with the provisions of Section 4.04.
Certificate Insurance Policy (Policies): Either or both of the Class A3
Certificate Insurance Policy and the Class A4 Certificate Insurance Policy, as
the context requires.
Certificate Insurer: MBIA Insurance Corporation, or any successor thereto,
as issuer of the Certificate Insurance Policies.
Certificate Insurer Default: With respect to either Certificate Insurance
Policy, the occurrence and continuance of any of the following events:
(a) the Certificate Insurer shall have failed to make a payment
required to be made under the Certificate Insurance Policy in accordance with
its terms; provided however, the failure of the Certificate Insurer to make a
required payment under one Certificate Insurance Policy shall not cause a
Certificate Insurer Default under the other Certificate Insurance Policy.
(b) the Certificate Insurer shall have (i) filed a petition or
commenced a case or proceeding under any provision or chapter of the United
States Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii)
made a general assignment for the benefit of its creditors, or (iii) had an
order for relief entered against it under the United States Bankruptcy Code or
any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization that is final and nonappealable;
or
(c) a court of competent jurisdiction, the Office of the Commissioner
of Insurance of the State of New York or other competent regulatory authority
shall have entered a final and nonappealable order, judgment or decree (i)
appointing a custodian, trustee, agent or receiver for the Certificate Insurer
or for all or any material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or receiver of the
Certificate Insurer (or the taking of possession of all or any material portion
of the property of the Certificate Insurer).
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate other than a
Notional Certificate, at the time of determination, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth on
the face of such Certificate (plus, in the case of any Negative Amortization
Certificate, any Deferred Interest allocated thereto on previous Distribution
Dates, and plus, in the case of any Accrual Certificate, its Percentage
Interest of any related Accrual Amount for each previous Distribution Date),
less the amount of all principal distributions previously made with respect to
such Certificate, all Realized Losses allocated to such Certificate, and, in
the case of a Subordinate Certificate, any Subordinate Certificate Writedown
Amount allocated to such Certificate. For purposes of Article V hereof, unless
specifically provided to the contrary, Certificate Principal Amounts shall be
determined as of the close of business of the immediately preceding
Distribution Date, after giving effect to all distributions made on such date.
Notional Certificates are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same class designation.
Class A Certificate: Any Class A1, Class A2, Class A3, Class A4, Class A5
and Class AP Certificate.
Class A3 Certificate Insurance Policy: The Certificate Guaranty Insurance
Policy No. 29326, dated the Closing Date, issued by the Certificate Insurer to
the Trustee for the benefit of the Holders of the Class A3 Certificates.
Class A4 Certificate Insurance Policy: The Certificate Guaranty Insurance
Policy No. 29327, dated the Closing Date, issued by the Certificate Insurer to
the Trustee for the benefit of the Holders of the Class A4 Certificates.
Class A3 Certificate Insurance Premium: With respect to any Distribution
Date and with respect to the Class A3 Certificate Insurance Policy, an amount
equal to 1/12th of the product of (a) the Class Principal Amount of the Class
A3 Certificates as of such Distribution Date (prior to giving effect to any
distribution thereon on such Distribution Date) and (b) the Class A3 Premium
Percentage.
Class A4 Certificate Insurance Premium: With respect to any Distribution
Date and with respect to the Class A4 Certificate Insurance Policy, an amount
equal to 1/12 of the product of (a) the Class Principal Amount of the Class A4
Certificates as of such Distribution Date (prior to giving effect to any
distribution thereon on such Distribution Date) and (b) the Class A4 Premium
Percentage.
Class A3 Guaranteed Distributions: (a) With respect to any Distribution
Date, (i) the Accrued Certificate Interest for the Class A3 Certificates for
such Distribution Date, including the amount of any Net Prepayment Interest
Shortfalls attributable to Principal Prepayments in full allocable to the Class
A3 Certificates on such Distribution Date that are not covered by Reserve Fund,
and (ii) the amount of any Realized Loss, including any Excess Loss, allocated
to the Class A3 Certificates on such Distribution Date and (b) for the Final
Scheduled Distribution Date, the Class Principal Amount of the Class A3
Certificates to the extent unpaid on the Final Scheduled Distribution Date.
Class A4 Guaranteed Distributions: (a) With respect to any Distribution
Date, (i) the Accrued Certificate Interest for the Class A4 Certificates for
such Distribution Date, including the amount of any Net Prepayment Interest
Shortfalls attributable to Principal Prepayments in full allocable to the Class
A4 Certificates on such Distribution Date that are not covered by the Reserve
Fund and (ii) the amount of any Realized Loss, including any Excess Loss,
allocated to the Class A4 Certificates on such Distribution Date and (b) for
the Final Scheduled Distribution Date, the Class Principal Amount of the Class
A4 Certificates to the extent unpaid on the Final Scheduled Distribution Date.
Class A3 Policy Payments Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 5.07(c) in the name of the
Trustee for the benefit of the Class A3 Certificateholders and designated "U.S.
Bank National Association, Class A3 Policy Payments Account in trust for
registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 1999-ALS2, Class A3." Funds in the Class A3
Policy Payments Account shall be held in trust for the benefit of the Class A3
Certificateholders for the uses and purposes set forth in this Agreement.
Class A4 Policy Payments Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 5.07(c) in the name of the
Trustee for the benefit of the Class A4 Certificateholders and designated "U.S.
Bank National Association, Class A4 Policy Payments Account in trust for
registered holders of Structured Assets Securities Corporation Mortgage
Pass-Through Certificates, Series 1999-ALS2, Class A4." Funds in the Class A4
Policy Payments Account shall be held in trust for the benefit of the Class A4
Certificateholders for the uses and purposes set forth in the Agreement.
Class A3 Premium Percentage: The Premium Percentage applicable to the
Class A3 Certificate Insurance Policy as defined in the Insurance Agreement.
Class A4 Premium Percentage: The Premium Percentage applicable to the
Class A4 Certificate Insurance Policy as defined in the Insurance Agreement.
Class A3 Rounding Account: The separate Eligible Account established and
maintained by the Trustee pursuant to Section 5.06(e) in the name of the
Trustee for the benefit of the Class A3 Certificateholders and designated "The
Chase Manhattan Bank Class A3 Rounding Account in trust for registered holders
of Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 1999-ALS2, Class A3." Funds in the Rounding Account shall be held in
trust for the benefit of the Class A3 Certificateholders for the uses and
purposes set forth in this Agreement. The Class A3 Rounding Account will not be
a part of any REMIC and, for all federal and state income tax purposes, will be
beneficially owned by Lehman Brothers Inc.
Class A4 Rounding Account: The separate Eligible Account established and
maintained by the Trustee pursuant to Section 5.06(e) in the name of the
Trustee for the benefit of the Class A4 Certificateholders and designated "The
Chase Manhattan Bank Class A4 Rounding Account in trust for registered holders
of Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 1999-ALS2, Class A4." Funds in the Rounding Account shall be held in
trust for the benefit of the Class A4 Certificateholders for the uses and
purposes set forth in this Agreement. The Class A4 Rounding Account will not be
a part of any REMIC and, for all federal and state income tax purposes, will be
beneficially owned by Lehman Brothers Inc.
Class AP Deferred Amount: As to any Distribution Date on or prior to the
Credit Support Depletion Date and the Class AP Certificates, the aggregate of
the applicable AP Percentage of the principal portion of each Realized Loss on
a Discount Mortgage Loan, other than, an Excess Loss, to be allocated to such
Class of Certificates on such Distribution Date or previously allocated to such
Class of Certificates and not yet paid to the Holders of such Class of
Certificates pursuant to Section 5.02(a)(v).
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4, Class B5
or Class B6 Certificate.
Class LTR Interest: The sole residual interest in the Lower Tier REMIC.
Class Notional Amount: With respect to any Class of Notional Certificates,
the applicable class notional amount described in the Preliminary Statement
hereto.
Class Principal Amount: With respect to each Class of Certificates other
than any Class of Notional Certificates, the aggregate of the Certificate
Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates, zero.
Class Percentage: With respect to each Class of Subordinate Certificates,
for each Distribution Date, the percentage obtained by dividing the Class
Principal Amount of such Class immediately prior to such Distribution Date by
the aggregate Certificate Principal Amount of all Certificates immediately
prior to such date.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: May 27, 1999.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by the
Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to any Distribution Date, an
amount equal to the excess of (x) the aggregate of any Prepayment Interest
Shortfalls with respect to such Distribution Date over (y) the aggregate of any
amounts required to be paid by any Servicer in respect of such shortfalls but
not paid; provided, that such amount, to the extent payable by the Master
Servicer, shall not exceed the Aggregate Master Servicing Compensation that
would be payable to the Master Servicer on such Distribution Date without
giving effect to any Compensating Interest Payment. Component: None.
Component Certificate: None.
Component Interest Rate: None.
Component Principal Amount: Not applicable.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest in
the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 450 West 33rd
Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services.
Corresponding Component: None.
Credit Score: With respect to any Mortgage Loan, a numerical assessment of
default risk with respect to the Mortgagor under such Mortgage Loan, determined
based on a methodology developed by Fair, Isaac & Co., Inc.
Credit Support Depletion Date: The Distribution Date on which, giving
effect to all distributions on such date, the aggregate Certificate Principal
Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate Certificates and
any Distribution Date, the sum of the Class Percentages of all Classes of
Certificates that rank lower in priority than such Class.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a Custodial
Agreement, and any successor thereto.
Cut-off Date: May 1, 1999.
Cut-off Date Aggregate Principal Balance: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Principal Balance
for all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & Phelps Credit Rating Co., or any successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction of
the Scheduled Payment that the related Mortgagor is obligated to pay on any Due
Date as a result of any proceeding under Bankruptcy law or any similar
proceeding.
Deferred Interest: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization,
if any, for the related Due Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the Trust
Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, the Business Day
immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
Determination Date: With respect to each Distribution Date, the 18th day
of the month in which such Distribution Date occurs, or, if such 18th day is
not a Business Day, the next succeeding Business Day.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate less
than 6.75% per annum.
Disqualified Organization: Either (i) the United States, (ii) any state or
political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in section 521 of the Code) which is exempt from the tax imposed by Chapter 1
of the Code unless such organization is subject to the tax imposed by section
511 of the Code, (vii) any organization described in section 1381(a)(2)(C) of
the Code, (viii) any "electing large partnership" described in section 775 of
the Code, or (ix) any other entity designated as a Disqualified Organization by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of the determination. In addition, a corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof if all of its activities are subject to tax
and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month, or, if such 25th day is not
a Business Day, the next succeeding Business Day commencing in June 1999.
Due Date: With respect to any Mortgage Loan, the date on which a Scheduled
Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period commencing
on the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided
that any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt or deposit obligations of such holding company
or depository institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category, or (iii) a segregated trust
account or accounts (which shall be a "special deposit account") maintained
with the Trustee or any other federal or state chartered depository institution
or trust company, acting in its fiduciary capacity, in a manner acceptable to
the Trustee and the Rating Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(v) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America ("Direct Obligations");
(vi) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution
or trust company (including U.S. subsidiaries of foreign depositories and
the Trustee or any agent of the Trustee, acting in its respective
commercial capacity) incorporated or organized under the laws of the
United States of America or any state thereof and subject to supervision
and examination by federal or state banking authorities, so long as at the
time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal subsidiary
of a holding company, the commercial paper or other short-term debt or
deposit obligations of such holding company or deposit institution, as the
case may be) have been rated by each Rating Agency in its highest
short-term rating category or one of its two highest long-term rating
categories;
(vii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by GNMA, FNMA or FHLMC with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such
broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(viii) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each Rating
Agency, at the time of investment or the contractual commitment providing
for such investment, at least equal to one of the two highest short-term
credit ratings of each Rating Agency; provided, however, that securities
issued by any particular corporation will not be Eligible Investments to
the extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held as part
of the Trust Fund to exceed 20% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible Investments in
the Certificate Account; provided, further, that such securities will not
be Eligible Investments if they are published as being under review with
negative implications from either Rating Agency;
(ix) commercial paper (including both noninterest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of issuance thereof)
rated by each Rating Agency in its highest short-term ratings;
(x) a Qualified GIC;
(xi) certificates or receipts representing direct ownership interests
in future interest or principal payments on obligations of the United
States of America or its agencies or instrumentalities (which obligations
are backed by the full faith and credit of the United States of America)
held by a custodian in safekeeping on behalf of the holders of such
receipts; and
(xii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating Agency
or (B) that would not adversely affect the then current rating by either
Rating Agency of any of the Certificates (in the case of the Class A3
Certificates, determined without regard to the Class A3 Certificate
Insurance Policy and in the case of the Class A4 Certificates, determined
without regard to the Class A4 Certificate Insurance Policy). Such
investments in this subsection (viii) may include money market mutual
funds, including, without limitation, the VISTA U.S. Government Money
Market Fund or any other fund for which The Chase Manhattan Bank (the
"Bank"), the Trustee or an affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) the Bank or an affiliate thereof
charges and collects fees and expenses from such funds for services
rendered, (ii) the Bank or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement, and (iii)
services performed for such funds and pursuant to this Agreement may
converge at any time. The Trustee specifically authorizes the Bank or an
affiliate thereof to charge and collect from the Trustee such fees as are
collected from all investors in such funds for services rendered to such
funds (but not to exceed investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Subordinate Certificate.
Escrow Account: Any account established and maintained by the applicable
Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances enumerated in
Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of the
then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof, in
excess of the then-applicable Fraud Loss Limit, and any Special Hazard Loss, or
portion thereof, in excess of the then-applicable Special Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: The Distribution Date occurring in July
2029.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch IBCA, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Mortgage Loan sustained by reason of a
default arising from fraud, dishonesty or misrepresentation in connection with
the related Mortgage Loan, as reported by the applicable Servicer to the Master
Servicer.
Fraud Loss Limit: As of any Distribution Date after the Cut-off Date (w)
prior to the first anniversary of the Cut-off Date, $10,930,951, less the
aggregate of the Fraud Losses since the Cut-off Date; (x) on the first
anniversary of the Cut-off Date, an amount equal to 2% of the aggregate
Scheduled Principal Balance of all the Mortgage Loans and (y) from the second
to the fourth anniversary of the Cut-off Date, an amount equal to (1) the
lesser of (a) the Fraud Loss Limit as of the most recent anniversary of the
Cut-off Date and (b) 1% of the Scheduled Principal Balance of all the Mortgage
Loans as of the most recent anniversary of the Cut-off Date and (z) on or after
the fifth anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee, the
Master Servicer, any Servicer or any Affiliate thereof shall be deemed not to
be outstanding in determining whether the requisite percentage necessary to
effect any such consent has been obtained, except that, in determining whether
the Trustee shall be protected in relying upon any such consent, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be disregarded. The Trustee may request and conclusively rely on
certifications by the Depositor, the Master Servicer and any Servicer in
determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
Individual Redemption Certificate: A Redemption Certificate with a $1,000
Certificate Principal Amount.
Insurance Agreement: The Insurance Agreement, dated as of May 1, 1999,
among the Depositor, the Seller, the Trustee and the Certificate Insurer, a
copy of which is attached as Exhibit N hereto.
Insurance Policy: Any Primary Mortgage Insurance Policy and any standard
hazard insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect as
of the Closing Date or thereafter during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to be
paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Insured Payment: The meaning assigned to such term in the Class A3
Certificate Insurance Policy or the Class A4 Certificate Insurance Policy, as
the context requires.
Interest Distribution Amount: Not applicable.
Interest Rate: With respect to each Class of Certificates, the applicable
per annum rate set forth or described in the Preliminary Statement hereto.
Interest Shortfall: With respect to any Class of Certificates and any
Distribution Date, any Accrued Certificate Interest not distributed (or added
to principal) with respect to any previous Distribution Date, other than any
Net Prepayment Interest Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: July 25, 2031.
Lehman Capital: Lehman Capital, A Division of Lehman Brothers Holdings
Inc., or any successor in interest.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts that
it expects to recover on behalf of the Trust Fund from or on account of such
Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master Servicer or
a Servicer in connection with the liquidation of any defaulted Mortgage Loan
and are not recoverable under the applicable Primary Mortgage Insurance Policy,
including, without limitation, foreclosure and rehabilitation expenses, legal
expenses and unreimbursed amounts expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the sale of
the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Living Holder: Any Holder of a Redemption Certificate other than a
Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of the
principal balance of such Mortgage Loan at origination, or such other date as
is specified, to the Original Value thereof.
Maintenance: With respect to any Cooperative Unit, the rent or fee paid by
the Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
Master Servicer: Aurora Loan Services Inc., or any successor in interest,
or if any successor master servicer shall be appointed as herein provided, then
such successor master servicer.
Master Servicing Fee: As to any Distribution Date and each Mortgage Loan,
an amount equal to the product of the Master Servicing Fee Rate and the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Due Period. The Master Servicing Fee for any Mortgage Loan shall be
payable in respect of any Distribution Date solely from the interest portion of
the Scheduled Payment or other payment or recovery with respect to such
Mortgage Loan.
Master Servicing Fee Rate: 0.02% per annum.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage, or
an Assignment of Mortgage, has been or will be recorded in the name of MERS, as
agent for the holder from time to time of the Mortgage Note.
Moody's: Moody's Investors Service, Inc., or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan required to be delivered to the Trustee or a
Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The agreement, dated as of May 1, 1999, for
the sale of the Mortgage Loans by Lehman Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended from time to
time pursuant to Section 2.02.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
the related Liquidation Proceeds net of unreimbursed expenses incurred in
connection with liquidation or foreclosure and unreimbursed Advances, Servicing
Advances, Servicing Fees and Retained Interest, if any, received and retained
in connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the sum of the applicable Servicing Fee Rate, the Master
Servicing Fee Rate, the Trustee Fee Rate and the Retained Interest Rate.
Net Prepayment Interest Shortfall: With respect to any Distribution Date,
the excess, if any, of any Prepayment Interest Shortfalls with respect to the
Mortgage Loans for such date over the sum of any amounts paid by the Servicers
with respect to such shortfalls and any amount that is required to be paid by
the Master Servicer in respect of such shortfalls pursuant to this Agreement.
Non-AP Senior Certificate: Any Class A1, Class A2, Class A3, Class A4,
Class A5 or Class R Certificate.
Non-AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of the fraction, the numerator of which is the Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is 6.75%. As to any
Premium Mortgage Loan in any Mortgage Pool, 100%.
Non-AP Pool Balance: As to any Distribution Date and any Mortgage Loan,
the sum of, as to each Mortgage Loan, the product of the applicable Non-AP
Percentage and the Scheduled Principal Balance of such Mortgage Loan for such
Distribution Date.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
equal to or greater than 6.75% per annum. Non-MERS
Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any individual, corporation, partnership or other person
other than a citizen or resident of the United States; a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, including for this purpose, the District of
Columbia; an estate that is subject to U.S. federal income tax regardless of
the source of its income; or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States trustees have authority to control all substantial
decisions of the trust.
Notice of Nonpayment: The notice to be delivered by the Trustee to the
Certificate Insurer with respect to any Distribution Date pursuant to Section
5.07(a), which shall be in the form attached to the Certificate Insurance
Policies.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class Notional
Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: The Class A5 Certificates.
Notional Component: None.
Notional Component Amount: None.
Offering Document: Either of the Prospectus or the private placement
memorandum dated May 14, 1999 relating to the Class B4, Class B5 and Class B6
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
any Vice Chairman, the President, any Vice President or any Assistant Vice
President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable in
form and substance to the Trustee, and who may be in-house or outside counsel
to the Depositor, the Master Servicer or a Servicer but which must be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the taxation, or the federal income tax status, of each
REMIC.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Subordinate Amount: The Subordinate Amount on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate, the Percentage
Interest evidenced thereby shall equal the initial Certificate Principal Amount
thereof divided by the initial Class Principal Amount of all Certificates of
the same Class. With respect to any Notional Certificate, the Percentage
Interest evidenced thereby shall be as specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Lehman Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth in
29 C.F.R. 2510.3-101.
Policy Payments Account: Either or both of the Class A3 Policy Payments
Account and the Class A4 Policy Payments Account, as the context requires.
Preference Amount: The meaning assigned to such term in the applicable
Certificate Insurance Policy.
Premium Mortgage Loan. Any Mortgage Loan with a Net Mortgage Rate greater
than or equal to 6.75% per annum.
Prepayment Interest Excess: With respect to any Principal Prepayment in
full received from the first day through the sixteenth day of any month, all
amounts paid in respect of interest at the applicable Net Mortgage Rate on such
Principal Prepayment.
Prepayment Interest Shortfall: With respect to any Distribution Date and
(x) any Principal Prepayment in part (other than any such prepayment received
on the first of the month) and (y) any Principal Prepayment in full received on
or after the seventeenth day of the month immediately preceding the month of
such Distribution Date, but on or before the last day of the month immediately
preceding the month of such Distribution Date, the difference between (i) one
full month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Master Servicing Fee Rate,
the applicable Servicing Fee Rate and the Retained Interest Rate, on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date, all
premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
Prepayment Period: With respect to any Distribution Date and any partial
Principal Prepayment, the period from the second day of the month immediately
preceding the month of such Distribution Date to the first day of the month of
such Distribution Date. With respect to any Distribution Date and a full
Principal Prepayment, the period from the seventeenth day of the month
immediately preceding the month of such Distribution Date to the sixteenth day
of the month of such Distribution Date.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if any, on
an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Any Class AP Certificate.
Principal Prepayment: Any Mortgagor payment of principal (other than a
Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled Due
Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated May 14, 1999, together with
the accompanying prospectus dated January 15, 1999, relating to the Class A1,
Class A2, Class A3, Class A4, Class A5, Class AP, Class B1, Class B2, Class B3
and Class R Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan pursuant
to this Agreement, an amount equal to the sum of (a) 100% of the unpaid
principal balance of such Mortgage Loan, (b) accrued interest thereon at the
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date immediately preceding the related Distribution Date and
(c) any unreimbursed Servicing Advances. The Certificate Insurer shall be
reimbursed from the Purchase Price for any unpaid Reimbursement Amount due to
the Certificate Insurer with respect to such repurchased Mortgage Loan. The
Master Servicer or the applicable Servicer (or the Trustee, if applicable)
shall be reimbursed from the Purchase Price for any Mortgage Loan or related
REO Property for any Advances made with respect to such Mortgage Loan that are
reimbursable to the Master Servicer or such Servicer under this Agreement or
the related Servicing Agreement, as well as any unreimbursed Servicing Advances
and accrued and unpaid Master Servicing Fees or Servicing Fees, as applicable.
Qualified GIC: A guaranteed investment contract or surety bond providing
for the investment of funds in the Collection Account or the Certificate
Account and insuring a minimum, fixed or floating rate of return on investments
of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no long-term
debt, whose claims paying ability is rated by each Rating Agency in one of
its two highest rating categories, and whose short-term debt is rated by
each Rating Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action by
any other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result in a
downgrading of any rating of the Certificates, the Trustee shall terminate
such contract without penalty and be entitled to the return of all funds
previously invested thereunder, together with accrued interest thereon at
the interest rate provided under such contract to the date of delivery of
such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be transferable
to any successor trustee hereunder: and
(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Collection Account or the Certificate
Account, as the case may be, not later than the Business Day prior to any
Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under the
laws of the states in which the related Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided and whose claims paying ability is
rated by each Rating Agency in its highest rating category or whose selection
as an insurer will not adversely affect the rating of the Certificates.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate net of the Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Trustee for deposit into the Certificate Account, and shall be treated as a
Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than the
Net Mortgage Rate of the related Deleted Mortgage Loan; (iii) has a remaining
stated term to maturity not longer than, and not more than one year shorter
than, the remaining term to stated maturity of the related Deleted Mortgage
Loan; (iv) (A) has a Loan-to-Value Ratio as of the date of such substitution of
not greater than 80%, provided, however, that if the related Deleted Mortgage
Loan has a Loan-to-Value Ratio of greater than 80%, then the Loan-to-Value
Ratio of such substitute Mortgage Loan may be greater than 80% but shall not be
greater than the Loan-to-Value Ratio of the related Deleted Mortgage Loan and
(B) the addition of such substitute Mortgage Loan does not increase the
weighted average Loan-to-Value Ratio of the related Mortgage Pool by more than
5%; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) is not a Cooperative Loan unless the related Deleted Mortgage Loan
was a Cooperative Loan; (vii) if applicable, has the same index as and a margin
not less than that of the related Deleted Mortgage Loan; (viii) has not been
delinquent for a period of more than 30 days more than once in the twelve
months immediately preceding such date of substitution; (ix) is covered by a
Primary Mortgage Insurance Policy if the related Deleted Mortgage Loan is so
covered, and the Loan-to-Value Ratio of such Mortgage Loan is greater than 80%;
and (x) has a Credit Score not greater than 20 points lower than the Credit
Score of the related Deleted Mortgage Loan, provided, however, that if the
Deleted Mortgage Loan does not have a Credit Score, then such substitute
Mortgage Loan shall have a Credit Score equal to or greater than 700. In the
event that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the Scheduled Principal Balance referred to in
clause (i) above shall be determined such that the aggregate Scheduled
Principal Balance of all such substitute Mortgage Loans shall not exceed the
aggregate Scheduled Principal Balance of all Deleted Mortgage Loans and (b)
each of (1) the rate referred to in clause (ii) above, (2) the remaining term
to stated maturity referred to in clause (iii) above, (3) the Loan-to-Value
Ratio referred to in clause (iv) above and (4) the Credit Score referred to in
clause (x) above shall be determined on a weighted average basis, provided that
the final scheduled maturity date of any Qualifying Substitute Mortgage Loan
shall not exceed the Final Scheduled Distribution Date of any Class of
Certificates. Whenever a Qualifying Substitute Mortgage Loan is substituted for
a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify such qualification in writing to the Trustee.
Rating Agency: Each of DCR and S&P.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage Rate
from the date as to which interest was last paid up to the last day of the
month of such liquidation, minus (iii) Liquidation Proceeds received, net of
amounts that are reimbursable to the Master Servicer or any Servicer with
respect to such Mortgage Loan (other than Advances of principal and interest)
including expenses of liquidation, and (b) with respect to each Mortgage Loan
that has become the subject of a Deficient Valuation, the difference between
the unpaid principal balance of such Mortgage Loan immediately prior to such
Deficient Valuation and the unpaid principal balance of such Mortgage Loan as
reduced by the Deficient Valuation. In determining whether a Realized Loss is a
Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the related Cooperative Corporation and the originator of such Mortgage
Loan to establish the rights of such originator in the related Cooperative
Property.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month immediately preceding the month in which
such Distribution Date occurs.
Redemption Certificate: Any Class A3 Certificate or Class A4 Certificate.
Reference Banks: None.
Reimbursement Amount: As defined in Section 5.02(a)(vii).
Relief Act Reduction: With respect to any Mortgage Loan as to which there
has been a reduction in the amount of interest collectible thereon as a result
of application of the Solders' and Sailors' Civil Relief Act of 1940, as
amended, any amount by which interest collectible on such Mortgage Loan for the
Due Date in the related Due Period is less than interest accrued thereon for
the applicable one-month period at the Mortgage Rate without giving effect to
such reduction.
REMIC: The Lower Tier REMIC or Upper Tier REMIC as described in the
Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
86OG of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The day in each month on which each Servicer is required
to remit payments to the account maintained by the Master Servicer, as
specified in the related Servicing Agreement, which in the case of each
Servicer is the 18th day of each month (or if such 18th day is not a Business
Day, the immediately preceding Business Day).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Reserve Fund: The separate, interest-bearing Eligible Account created and
maintained by the Trustee pursuant to Section 4.05 with a depository
institution in the name of the Trustee for the benefit of the Class A3 and
Class A4 Certificateholders and designated "The Chase Manhattan Bank Reserve
Fund in trust for registered holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 1999-ALS2, Class A3 and Class A4."
The Reserve Fund will not be a part of any REMIC and, for all federal and state
income tax purposes, will be beneficially owned by Lehman Brothers Inc.
Reserve Interest Rate: Not applicable.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having direct responsibility for the administration of this
Agreement.
Restricted Certificate: Any Class B4, Class B5 or Class B6 Certificate.
Retained Interest: Interest in respect of each Mortgage Loan retained by
the Retained Interest Holder at the Retained Interest Rate.
Retained Interest Holder: The Depositor or any successor in interest by
assignment or otherwise.
Retained Interest Rate: With respect to each Mortgage Loan, the excess of
the Mortgage Rate of such Mortgage Loan over the Trust Rate.
Rounding Accounts: The Class A3 Rounding Account together with the Class
A4 Rounding Account.
S&P: Standard & Poor's Rating Services, a division of the McGraw-Hill
Companies, Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest (or of
interest only, if applicable) to be paid by the Mortgagor on a Mortgage Loan,
as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction (excluding all amounts of principal and interest
that were due on or before the Cut-off Date whenever received) and, in the case
of an REO Property, an amount equivalent to the Scheduled Payment that would
have been due on the related Mortgage Loan if such Mortgage Loan had remained
in existence. In the case of any bi-weekly payment Mortgage Loan, all payments
due on such Mortgage Loan during any Due Period shall be deemed collectively to
constitute the Scheduled Payment due on such Mortgage Loan in such Due Period.
Scheduled Principal Amount: As to any Distribution Date, an amount equal
to the amount described in clause (i)(b) of the definition of Senior Principal
Distribution Amount.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as of
any Distribution Date, the principal balance of such Mortgage Loan at the close
of business on the Cut-off Date, after giving effect to principal payments due
on or before the Cut-off Date, whether or not received, less an amount equal to
principal payments due after the Cut-off Date and on or before the Due Date in
the related Due Period, whether or not received from the Mortgagor or advanced
by any Servicer or the Master Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Net
Liquidation Proceeds, Insurance Proceeds and condemnation proceeds, in each
case to the extent identified and applied prior to or during the applicable
Prepayment Period) and (ii) any REO Property as of any Distribution Date, the
Scheduled Principal Balance of the related Mortgage Loan on the Due Date
immediately preceding the date of acquisition of such REO Property by the
Trustee (reduced by any amount applied as a reduction of principal on the
Mortgage Loan). With respect to any Mortgage Loan and the Cut-off Date, as
specified in the Mortgage Loan Schedule.
Security Agreement: With respect to any Cooperative Loan, the agreement
between the owner of the related Cooperative Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
Seller: Lehman Capital, A Division of Lehman Brothers Holdings Inc., or
any successor in interest.
Senior Certificate: Any Class A1, Class A2, Class A3, Class A4, Class A5,
Class AP or Class R Certificate.
Senior Percentage: With respect to any Distribution Date, the percentage
equivalent of the fraction, the numerator of which is the aggregate of the
Certificate Principal Amounts of the Class A1, Class A2, Class A3, Class A4
and Class R Certificates, immediately prior to such date and the denominator
of which is the related Non-AP Pool Balance for such date.
Senior Prepayment Percentage: With respect to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 100%.
With respect to any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date, the Senior Percentage plus the
following percentage of the Subordinate Percentage for such Distribution Date:
for any Distribution Date in the first year thereafter, 70%; for any
Distribution Date in the second year thereafter, 60%; for any Distribution Date
in the third year thereafter, 40%; for any Distribution Date in the fourth year
thereafter, 20%; and for any subsequent Distribution Date, 0%; provided,
however, that if on any of the foregoing Distribution Dates the Senior
Percentage exceeds the initial Senior Percentage, the Senior Prepayment
Percentage on such Distribution Date will once again equal 100% for such
Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the level in effect for the most recent
prior period set forth in the paragraph above shall be effective on any
Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all Mortgage
Loans that were delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and the Scheduled Payments that would have been
due on Mortgage Loans with respect to which the related Mortgaged Property has
been acquired by the Trust Fund if the related Mortgage Loan had remained in
existence) is greater than or equal to 50% of the Subordinate Amount
immediately prior to such Distribution Date or (ii) cumulative Realized Losses
with respect to the Mortgage Loans exceed (a) with respect to the Distribution
Date on the fifth anniversary of the first Distribution Date, 30% of the
related Original Subordinate Amount, (b) with respect to the Distribution Date
on the sixth anniversary of the first Distribution Date, 35% of the related
Original Subordinate Amount, (c) with respect to the Distribution Date on the
seventh anniversary of the first Distribution Date, 40% of the related Original
Subordinate Amount, (d) with respect to the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the related Original
Subordinate Amount, and (e) with respect to the Distribution Date on the ninth
anniversary of the first Distribution Date or thereafter, 50% of the related
Original Subordinate Amount.
Senior Principal Distribution Amount: For any Distribution Date, the sum
of the following amounts:
(i) the product of (a) the Senior Percentage for such date and (b)
the principal portion (multiplied by the applicable Non-AP Percentage) of
each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the Bankruptcy Coverage Termination Date), on
each Mortgage Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the product of (a) the Senior Prepayment Percentage for such
date and (b) each of the following amounts (multiplied by the applicable
Non-AP Percentage): (1) each Principal Prepayment on the Mortgage Loans
collected during the related Prepayment Period, (2) each other unscheduled
collection, including Insurance Proceeds and Net Liquidation Proceeds
(other than with respect to any Mortgage Loan that was finally liquidated
during the related Prepayment Period) representing or allocable to
recoveries of principal received during the related Prepayment Period, and
(3) the principal portion of all proceeds of the purchase of any Mortgage
Loan (or, in the case of a permitted substitution, amounts representing a
principal adjustment) actually received by the Trustee during the related
Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan that was finally liquidated during the related
Prepayment Period, the lesser of (a) the related net Liquidation Proceeds
allocable to principal (multiplied by the applicable Non-AP Percentage)
and (b) the product of the related Senior Prepayment Percentage for such
date and the Scheduled Principal Balance (multiplied by the applicable
Non-AP Percentage) of such related Mortgage Loan at the time of
liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Servicer: Aurora Loan Services Inc. or any successor in interest.
Servicing Advances: Expenditures incurred by the Servicer in connection
with the liquidation or foreclosure of a Mortgage Loan which are eligible for
reimbursement under the Servicing Agreement.
Servicing Agreement: The Servicing Agreement between the Servicer and the
Seller, dated as of May 1, 1999, attached hereto as Exhibit E and any other
servicing agreement entered into between a successor servicer and the Seller
pursuant to the terms hereof, attached hereto as an exhibit.
Servicing Fee: The Servicing Fee specified in the applicable Servicing
Agreement (which shall include any Prepayment Interest Excess).
Servicing Fee Rate: With respect to any Servicer, as specified in the
applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any Realized
Loss arising out of any direct physical loss or damage to a Mortgaged Property
which is caused by or results from any cause, exclusive of any loss covered by
a hazard policy or a flood insurance policy required to be maintained in
respect of such Mortgaged Property and any loss caused by or resulting from (i)
normal wear and tear, (ii) conversion or other dishonest act on the part of the
Trustee, the Master Servicer, any Servicer or any of their agents or employees,
or (iii) errors in design, faulty workmanship or faulty materials, unless the
collapse of the property or a part thereof ensues, or (y) any Realized Loss
arising from or related to the presence or suspected presence of hazardous
wastes, or hazardous substances on a Mortgaged Property unless such loss is
covered by a hazard policy or flood insurance policy required to be maintained
in respect of such Mortgaged Property, in any case, as reported by the
applicable Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $10,459,911, which
amount shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the Mortgage Loans; (ii) twice the
Scheduled Principal Balance of the Mortgage Loan having the highest Scheduled
Principal Balance, and (iii) the aggregate Scheduled Principal Balances of the
Mortgage Loans secured by Mortgaged Properties located in the single California
postal zip code area having the highest aggregate Scheduled Principal Balance
of Mortgage Loans of any such postal zip code area and (b) the Special Hazard
Loss Limit as of the Closing Date less the amount, if any, of Special Hazard
Losses incurred with respect to Mortgage Loans since the Closing Date.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Amount: As to any Distribution Date, the excess of the Non-AP
Pool Balance for such date over the Aggregate Certificate Principal Amount of
the Class A1, Class A2, Class A3, Class A4 and Class R Certificates
immediately prior to such date.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution Date, the
amount by which (i) the sum of the Class Principal Amounts of all the
Certificates (after giving effect to the distribution of principal and the
application of Realized Losses in reduction of the Certificate Principal
Amounts of the Certificates on such Distribution Date) exceeds (ii) the
aggregate Scheduled Principal Balance of the Mortgage Loans at the close of the
related Due Period.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, the percentage obtained by dividing the
Class Principal Amount of such Class immediately prior to such Distribution
Date by the aggregate Certificate Principal Amount of all Subordinate
Certificates immediately prior to such date.
Subordinate Percentage: With respect to any Distribution Date, the
difference between 100% and the Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to any Distribution Date,
the difference between 100% and the Senior Prepayment Percentage for such
Distribution Date.
Subordinate Principal Distribution Amount: For any Distribution Date, the
sum of the following:
(i) the product of (a) the Subordinate Percentage for such date and
(b) the principal portion (multiplied by the applicable Non-AP Percentage)
of each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the applicable Bankruptcy Coverage
Termination Date) on each Mortgage Loan in the related Mortgage Pool due
during the related Due Period;
(ii) the product of (a) the Subordinate Prepayment Percentage for
such date and (b) each of the following amounts (multiplied by the
applicable Non-AP Percentage): (1) each Principal Prepayment on the
Mortgage Loans collected during the related Prepayment Period, (2) each
other unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan that
was finally liquidated during the related Prepayment Period) representing
or allocable to recoveries of principal received during the related
Prepayment Period, and (3) the principal portion of all proceeds of the
purchase of any Mortgage Loan (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan that was finally liquidated during the related
Prepayment Period, the related net Liquidation Proceeds allocable to
principal (multiplied by the applicable Non-AP Percentage) less any
related amount paid pursuant to subsection (iii) of the definition of
Senior Principal Distribution Amount; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid;
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with respect
to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to Lehman Capital pursuant to a
Transfer Agreement.
Trust Fund: The corpus of the trust created pursuant to this Agreement,
consisting of the Mortgage Loans (other than any Retained Interest), the
assignment of the Depositor's rights under the Mortgage Loan Sale Agreement
(other than any Retained Interest), such amounts as shall from time to time be
held in the Collection Account, the Certificate Account, any Escrow Account,
the Insurance Policies, any REO Property, the Certificate Insurance Policies,
the Reserve Fund and the other items referred to in, and conveyed to the
Trustee under, Section 2.01(a).
Trustee: The Chase Manhattan Bank, not in its individual capacity but
solely as Trustee, or any successor in interest, or if any successor trustee or
any co-trustee shall be appointed as herein provided, then such successor
trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the product
of the Trustee Fee Rate and the aggregate Scheduled Principal Balance of the
related Mortgage Loans as of the first day of the related Due Period. The
Trustee Fee shall be calculated separately, by Mortgage Pool.
Trustee Fee Rate: 0.008% per annum.
Trust Rate: With respect to each Mortgage Loan, the sum of (i) 6.75%, (ii)
the Servicing Fee Rate, (iii) the Master Servicing Fee Rate and (iv) the
Trustee Fee Rate.
Unscheduled Principal Amount: As to any Distribution Date, the sum of the
amounts described in clauses (ii)(b) and (iii) (without regard to the reference
in clause (iii) to the "Senior Prepayment Percentage") of the definition of
Senior Principal Distribution Amount.
Voting Interests: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement, 99% of all
Voting Interests shall be allocated to the Certificates other than the Notional
Certificates and 1% of all Voting Interests shall be allocated to the Notional
Certificates. Voting Interests allocated to the Notional Certificates shall be
allocated between the Classes of such Certificates (and among the Certificates
of each such Class) in proportion to their Class Notional Amounts (or Notional
Amounts). Voting Interests shall be allocated among the other Classes of
Certificates (and among the Certificates of each such Class) in proportion to
their Class Principal Amounts (or Certificate Principal Amounts); provided,
however, that on and after the date, if any, on which the Certificate Insurer
has paid a claim under the Class A3 Certificate Insurance Policy or the Class
A4 Certificate Insurance Policy, as applicable, in respect of the Class A3
Certificates or the Class A4 Certificates, respectively, the Certificate
Insurer will be entitled to exercise all consent, voting and related rights of
such Class of Certificates.
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the Mortgagor
on such Mortgage Loans and payments to be made to the Trustee as supplied to
the Trustee by the Master Servicer. The Trustee shall not be required to
recompute, verify or recalculate the information supplied to it by the Master
Servicer.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date other
than (i) any amounts representing Retained Interest and (ii) payments of
principal and interest due on or before such date, and all such payments due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date, together with all of the Depositor's
right, title and interest in and to the Collection Account and all amounts from
time to time credited to and the proceeds of the Collection Account, the
Certificate Account and all amounts from time to time credited to and the
proceeds of the Certificate Account, any Escrow Account established pursuant to
Section 9.06 hereof and all amounts from time to time credited to and the
proceeds of any such Escrow Account, any REO Property and the proceeds thereof,
the Depositor's rights under any Insurance Policies related to the Mortgage
Loans, and the Depositor's security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any
Additional Collateral, and any proceeds of the foregoing, to have and to hold,
in trust; and the Trustee declares that, subject to the review provided for in
Section 2.02, it has received and shall hold the Trust Fund, as trustee, in
trust, for the benefit and use of the Holders of the Certificates and for the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, has caused to be executed, authenticated
and delivered to or upon the order of the Depositor, in exchange for the Trust
Fund, Certificates in the authorized denominations evidencing the entire
ownership of the Trust Fund. In addition, the Depositor has caused the
Certificate Insurer to deliver the Class A3 Certificate Insurance Policy for
the benefit of the Class A3 Certificateholders, the Class A4 Certificate
Insurance Policy for the benefit of the Class A4 Certificateholders and has
made an initial deposit to the Reserve Fund of $6,000.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement (other than any right to receive
Retained Interest), including all rights of the Seller under the Servicing
Agreement to the extent assigned under the Mortgage Loan Sale Agreement, and
delegates its obligations thereunder. The Trustee hereby accepts such
assignment and delegation, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Sale Agreement as if, for such purpose, it
were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit
and conveyance does not and is not intended to result in creation or assumption
by the Trustee of any obligation of the Depositor, the Seller, or any other
Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or any Custodian acting on the Trustee's
behalf, if applicable, the following documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or
in blank (in each case, with all necessary intervening endorsements as
applicable);
(ii) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original recorded Mortgage with evidence of recording indicated
thereon. If, in connection with any Mortgage Loan, the Depositor cannot
deliver the Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost, the Depositor shall deliver or cause to be
delivered to the Trustee (or its custodian), in the case of a delay due to
recording, a true copy of such Mortgage, pending delivery of the original
thereof, together with an Officer's Certificate of the Depositor
certifying that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has been
forwarded to the public recording office, or, in the case of a Mortgage
that has been lost, a copy thereof (certified as provided for under the
laws of the appropriate jurisdiction) and a written Opinion of Counsel
acceptable to the Trustee and the Depositor that an original recorded
Mortgage is not required to enforce the Trustee's interest in the Mortgage
Loan;
(iv) the original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy of
such assumption, modification or substitution agreement, pending delivery
of the original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or its custodian) is a
true copy and that the original of such agreement has been forwarded to
the public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) if applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain of
assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable to
the Trustee that such original Intervening Assignment is not required to
enforce the Trustee's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original mortgagee title insurance policy or attorney's opinion
of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any security
agreement, chattel mortgage or their equivalent that cannot be delivered
on or prior to the Closing Date because of a delay caused by the public
recording office where such document has been delivered for recordation, a
photocopy of such document, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying that
the copy of such security agreement, chattel mortgage or their equivalent
delivered to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed in
connection therewith, assigned to the Trustee.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion of
Counsel (which must be Independent counsel) acceptable to the Trustee and the
Rating Agencies, recording in such states is not required to protect the
Trustee's interest in the related Non-MERS Mortgage Loans. Subject to the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than 3 months thereafter except to the extent delays are caused by
the applicable recording office), the Trustee, at the expense of the Depositor
and with the cooperation of the Servicer, shall cause to be properly recorded
by the Servicer in each public recording office where the related Mortgages are
recorded each Assignment of Mortgage referred to in subsection (b)(v) above
with respect to a Non-MERS Mortgage Loan. With respect to each Cooperative
Loan, the Trustee, at the expense of the Depositor and with the cooperation of
the Servicer, shall cause to be taken such actions as are necessary under
applicable law in order to perfect the interest of the Trustee in the related
Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at the
expense of the Depositor and with the cooperation of the Servicer, shall cause
to be taken such actions as are necessary to cause the Trustee to be clearly
identified as the owner of each such Mortgage Loan on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable after
the execution and delivery hereof, but in any case within 180 days of the
Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the applicable
Collection Account pursuant to Section 4.01 have been so deposited. All
original documents that are not delivered to the Trustee shall be held by the
Master Servicer or the applicable Servicer in trust for the benefit of the
Trustee and the Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for Trust Fund. (a) The Trustee, by execution and delivery hereof, acknowledges
receipt of the Mortgage Files pertaining to the Mortgage Loans listed on the
Mortgage Loan Schedule, subject to review thereof by the Trustee, or by the
applicable Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the applicable Custodian on behalf of the Trustee, will execute and
deliver to the Depositor and the Master Servicer on the Closing Date an Initial
Certification in the form annexed hereto as Exhibit B-1 (or in the form annexed
to the applicable Custodial Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their face
to contain the requisite signatures by or on behalf of the respective parties
thereto, and shall deliver to the Depositor and the Master Servicer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form annexed
to the applicable Custodial Agreement as Exhibit B-2, as applicable) to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
of the applicable documents specified in Section 2.01(b) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The Trustee, or the applicable Custodian on behalf of the
Trustee, shall make sure that the documents are executed and endorsed, but
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that the same
are valid, binding, legally effective, properly endorsed, genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they
purport to be on their face. Neither the Trustee nor any Custodian shall have
any responsibility for verifying the genuineness or the legal effectiveness of
or authority for any signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear regular
on its face (i.e., is mutilated, damaged, defaced, torn or otherwise physically
altered) or appears to be unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule (each, a "Material Defect"), the Trustee, or the
applicable Custodian on behalf of the Trustee, shall promptly identify the
Mortgage Loan to which such Material Defect relates in the Interim Certificate
delivered to the Depositor or the Master Servicer (and to the Trustee). Within
90 days of its receipt of such notice, the Depositor shall be required to cure
such Material Defect (and, in such event, the Depositor shall provide the
Trustee with an Officer's Certificate confirming that such cure has been
effected). If the Depositor does not so cure such Material Defect, it shall, if
a loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure
such Material Defect, repurchase the related Mortgage Loan from the Trust Fund
at the Purchase Price. A loss shall be deemed to be attributable to the failure
of the Depositor to cure a Material Defect if, as determined by the Depositor,
upon mutual agreement acting in good faith, absent such Material Defect, such
loss would not have been incurred. Within the two-year period following the
Closing Date, the Depositor may, in lieu of repurchasing a Mortgage Loan
pursuant to this Section 2.02, substitute for such Mortgage Loan a Qualifying
Substitute Mortgage Loan subject to the provisions of Section 2.05. The failure
of the Trustee or the applicable Custodian to give the notice contemplated
herein within 45 days after the Closing Date shall not affect or relieve the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase of
Mortgage Loans from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Depositor and the Master Servicer a
Final Certification substantially in the form annexed hereto as Exhibit B-3 (or
in the form annexed to the applicable Custodial Agreement as Exhibit B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Certificateholders or the
Certificate Insurer of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and respective
certifications thereof as provided in this Section 2.02.
Section 2.03. Representations and Warranties of the Depositor. (a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, to the Master Servicer and to the Certificate Insurer, as
of the Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the certificate of incorporation or bylaws
of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee and the Master Servicer, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance with its
terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally and (B) general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the Mortgage
Loans to the Trustee, the Depositor was the sole owner of record and
holder of each Mortgage Loan, and the Depositor had good and marketable
title thereto, and had full right to transfer and sell each Mortgage Loan
to the Trustee free and clear, subject only to (1) liens of current real
property taxes and assessments not yet due and payable and, if the related
Mortgaged Property is a condominium unit, any lien for common charges
permitted by statute, (2) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending institutions in
the area in which the related Mortgaged Property is located and
specifically referred to in the lender's Title Insurance Policy or
attorney's opinion of title and abstract of title delivered to the
originator of such Mortgage Loan, and (3) such other matters to which like
properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security intended
to be provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had full
right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if
such Transfer Agreement is in the form of an assignment of a prior agreement).
To the extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of both (i) a representation or warranty of the applicable
Transferor under the applicable Transfer Agreement and (ii) a representation or
warranty of Lehman Capital under the Mortgage Loan Sale Agreement, the only
right or remedy of the Trustee or of any Certificateholder shall be the
Trustee's right to enforce the obligations of the applicable Transferor under
any applicable representation or warranty made by it. The Trustee acknowledges
that the representations and warranties of Lehman Capital in Section 1.04(b) of
the Mortgage Loan Sale Agreement are applicable only to facts or conditions
that arise or events that occur subsequent to the date as of which the
representations and warranties with respect to the related Mortgage Loans in
the Transfer Agreements were made, and which do not constitute a breach of any
representation or warranty made by the applicable Transferor in the applicable
Transfer Agreement. The Trustee acknowledges that Lehman Capital shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition
or event constituting such breach also constitutes a breach of a representation
or warranty made by the applicable Transferor in the applicable Transfer
Agreement, without regard to whether such Transferor fulfills its contractual
obligations in respect of such representation or warranty. The Trustee further
acknowledges that the Depositor shall have no obligation or liability with
respect to any breach of any representation or warranty with respect to the
Mortgage Loans (except as set forth in Section 2.03(a)(vi)) under any
circumstances.
Section 2.04. Discovery of Breach. It is understood and agreed that the
representations and warranties (i) set forth in Section 2.03, (ii) of Lehman
Capital set forth in the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by
Lehman Capital to the Depositor pursuant to the Mortgage Loan Sale Agreement
and assigned to the Trustee by the Depositor hereunder shall each survive
delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage
Loan to the Trustee and shall continue throughout the term of this Agreement.
Upon discovery by either the Depositor, the Master Servicer, the Trustee or the
Certificate Insurer of a breach of any of such representations and warranties
that adversely and materially affects the value of the related Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery of a breach of any representation or
warranty given to the Trustee or the Certificate Insurer by the Depositor or
given by Lehman Capital and assigned to the Trustee, the Depositor or Lehman
Capital, as applicable, shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in respect
thereof from the Trustee at the Purchase Price or (c) within the two year
period following the Closing Date, substitute a Qualifying Substitute Mortgage
Loan for the affected Mortgage Loan. In the event of discovery of a breach of
any representation and warranty of any Transferor assigned to the Trustee, the
Trustee may enforce its rights under the applicable Transfer Agreement for the
benefit of Certificateholders. Section 2.05. Repurchase, Purchase or
Substitution of Mortgage Loans. (a) With respect to any Mortgage Loan
repurchased by the Depositor pursuant to this Agreement, by Lehman Capital
pursuant to the Mortgage Loan Sale Agreement or by any Transferor pursuant to
the applicable Transfer Agreement, the principal portion of the funds received
by the Trustee in respect of such repurchase of a Mortgage Loan will be
considered a Principal Prepayment and shall be deposited in the Collection
Account. The Trustee, upon receipt of the full amount of the Purchase Price for
a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Qualifying
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan (and any
applicable Substitution Amount), shall release or cause to be released and
reassign to the Depositor, Lehman Capital or the applicable Transferor, as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens and
other encumbrances created by this Agreement, which instruments shall be
prepared by the Trustee (or its custodian), and the Trustee shall have no
further responsibility with respect to the Mortgage File relating to such
Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or Lehman Capital, as applicable, must deliver to the
Trustee (or its custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(b) along with
a written certification certifying as to the delivery of such Mortgage File and
containing the granting language set forth in Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by it
with respect to the related Deleted Mortgage Loan. As soon as practicable after
the delivery of any Qualifying Substitute Mortgage Loan hereunder, the Trustee,
at the expense of the Depositor and with the cooperation of the Servicer, shall
(i) with respect to a Qualifying Substitute Mortgage Loan that is a Non-MERS
Mortgage Loan, cause the Assignment of Mortgage to be recorded by the Servicer
if required pursuant to Section 2.01(c)(i), or (ii) with respect to a
Qualifying Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to be
taken such actions as are necessary to cause the Trustee to be clearly
identified as the owner of each such Mortgage Loan on the records of MERS if
required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the Trust
Fund pursuant to this Agreement shall constitute, and shall be construed as, a
sale of such property and not a grant of a security interest to secure a loan.
However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates and
the Certificate Insurer a first priority security interest in all of the
Depositor's right, title and interest in, to and under, whether now owned or
hereafter acquired, the Trust Fund and all proceeds of any and all property
constituting the Trust Fund to secure payment of the Certificates; and (3) this
Agreement shall constitute a security agreement under applicable law. If such
conveyance is deemed to be in respect of a loan and the Trust created by this
Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue in
full force and effect and the Trustee shall be deemed to be the collateral
agent for the benefit of such Person, and all proceeds shall be distributed as
herein provided.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be issuable in
registered form only and shall be securities governed by Article 8 of the New
York Uniform Commercial Code. The Book-Entry Certificates will be evidenced by
one or more certificates, beneficial ownership of which will be held in the
dollar denominations in Certificate Principal Amount or Notional Principal
Amount, as applicable, or in the Percentage Interests, specified herein. Each
Class of Book-Entry Certificates shall be issued in the minimum denominations
in Certificate Principal Amount (or Notional Amount) specified in the
Preliminary Statement hereto and in integral multiples of $1 in excess thereof.
Each Class of Non-Book Entry Certificates other than the Residual Certificate
shall be issued in definitive, fully registered form in the minimum
denominations in Certificate Principal Amount (or Notional Amount) specified in
the Preliminary Statement hereto and in integral multiples of $1 in excess
thereof. The Residual Certificate shall be issued as a single Certificate and
maintained in definitive, fully registered form in a minimum denomination equal
to 100% of the Percentage Interest of such Class. The Certificates may be
issued in the form of typewritten certificates. One Certificate of each Class
of Certificates other than any Class of Residual Certificates may be issued in
any denomination in excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of the
Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and hereby
accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the transfer
of Certificates (the "Certificate Register"). The Trustee may appoint a bank or
trust company to act as Certificate Registrar. A registration book shall be
maintained for the Certificates collectively. The Certificate Registrar may
resign or be discharged or removed and a new successor may be appointed in
accordance with the procedures and requirements set forth in Sections 6.06 and
6.07 hereof with respect to the resignation, discharge or removal of the
Trustee and the appointment of a successor Trustee. The Certificate Registrar
may appoint, by a written instrument delivered to the Holders and the Master
Servicer, any bank or trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided, however, that
the Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A Certificate
(other than Book-Entry Certificates which shall be subject to Section 3.09
hereof) may be transferred by the Holder thereof only upon presentation and
surrender of such Certificate at the office of the Certificate Registrar duly
endorsed or accompanied by an assignment duly executed by such Holder or his
duly authorized attorney in such form as shall be satisfactory to the
Certificate Registrar. Upon the transfer of any Certificate in accordance with
the preceding sentence, the Trustee shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver to the transferee, one or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer of
Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount (or
Notional Amount) as the Certificate surrendered, upon surrender of the
Certificate to be exchanged at the office of the Certificate Registrar duly
endorsed or accompanied by a written instrument of transfer duly executed by
such Holder or his duly authorized attorney in such form as is satisfactory to
the Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made to
a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth thereon and
agrees that it will transfer such a Certificate only as provided herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or the Placement Agent, an affiliate (as defined in Rule 144(a)(1) under
the 1933 Act) of the Depositor or the Placement Agent or (y) being made to
a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Act") by a transferor who has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act
by a transferor who furnishes to the Trustee a letter of the transferee
substantially in the form of Exhibit G hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate in the form of
a Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a Certificate
will not constitute or result in the assets of the Trust Fund being deemed to
be "plan assets" subject to the prohibited transactions provisions of ERISA or
Section 4975 of the Code and will not subject the Trustee or the Depositor to
any obligation in addition to those undertaken in the Agreement; provided,
however, that the Trustee will not require such certificate or opinion in the
event that, as a result of a change of law or otherwise, counsel satisfactory
to the Trustee has rendered an opinion to the effect that the purchase and
holding of an ERISA-Restricted Certificate by a Plan or a Person that is
purchasing or holding such a Certificate with the assets of a Plan will not
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code. The preparation and delivery of the certificate and opinions referred
to above shall not be an expense of the Trust Fund, the Trustee or the
Depositor. Notwithstanding the foregoing, no opinion or certificate shall be
required for the initial issuance of the ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee"), and the proposed transferor
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-2. In addition, the Trustee may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Depositor and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder. Notwithstanding the
registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or a Non-permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any registration
or transfer of a Residual Certificate to a Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder or for the maturity of any
payments due on such Residual Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
3.03(f), unless the Trustee shall have actual knowledge at the time of such
transfer or the time of such payment or other action that the transferee is a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder. The Trustee shall be entitled to recover from any Holder of a Residual
Certificate that was a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate at
and after either such times (and all costs and expenses, including but not
limited to attorneys' fees, incurred in connection therewith). Any payment (not
including any such costs and expenses) so recovered by the Trustee shall be
paid and delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 3.03(f), then upon
receipt of written notice to the Trustee that the registration of transfer of
such Residual Certificate was not in fact permitted by this Section 3.03(f),
the last preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of such registration of transfer of such
Residual Certificate. The Trustee shall be under no liability to any Person for
any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement so long as
the transfer was registered upon receipt of the affidavit described in the
preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate surrendered
for registration of transfer or exchange shall be cancelled and retained in
accordance with normal retention policies with respect to cancelled
certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or (ii)
the Trustee or any Authenticating Agent receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and there is delivered to
the Trustee or the Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Depositor and any Authenticating Agent that such destroyed, lost or
stolen Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute and the Trustee or any Authenticating Agent shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor and Certificate
Principal Amount. Upon the issuance of any new Certificate under this Section
3.05, the Trustee and Authenticating Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee or the Authenticating Agent) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.05 shall constitute complete and
indefeasible evidence of ownership in the applicable Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of Section
3.09 with respect to Book-Entry Certificates, the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar and any agent of any of them
may treat the Person in whose name any Certificate is registered upon the books
of the Certificate Registrar as the owner of such Certificate for the purpose
of receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Master Servicer, the
Trustee, the Certificate Registrar nor any agent of any of them shall be
affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making distributions
to Certificateholders hereunder. The Trustee shall cause such Paying Agent
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will hold all sums held by it for the payment to Certificateholders in an
Eligible Account in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to the Certificateholders. All funds
remitted by the Trustee to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee. If the Paying Agent is not the Trustee, the Trustee shall cause to be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds
to be distributed on such Distribution Date. Any Paying Agent shall be either a
bank or trust company or otherwise authorized under law to exercise corporate
trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Book-Entry Certificates,
except as provided in Section 3.09(c). Unless Definitive Certificates have been
issued to Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners
and the Clearing Agency shall be responsible for crediting the amount of
such distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued pursuant
to Section 3.09(c), the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal of and interest on the Book-Entry Certificates
to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Transferor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the Master
Servicer shall open and shall thereafter maintain an account held in trust (the
"Collection Account"), entitled "Aurora Loan Services Inc., as Master Servicer,
in trust for the benefit of the Holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1999-ALS2." The
Collection Account shall relate solely to the Certificates issued by the Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. On each Deposit Date, the entire amount on deposit in the Collection
Account (subject to permitted withdrawals set forth in Section 4.02), excluding
such amounts not included in the Available Distribution Amount for such
Distribution Date pursuant to clauses (a) through (h) of paragraph (1) of the
definition thereof, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The Master
Servicer, at its option, may choose to make daily remittances from the
Collection Account to the Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans (other
than payments due prior to the Cut-off Date), net of the Servicing Fee and
Master Servicing Fee with respect to each such Mortgage Loan, but only to
the extent of the amount permitted to be withdrawn or withheld from the
Collection Account in accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect to a
Mortgage Loan not otherwise specified in this paragraph (d), including all
Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO Property, net of any unpaid Servicing Fees and Master Servicing Fees
with respect to such Mortgage Loans (but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21);
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer pursuant
to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than the earlier of (a) the Deposit Date (except
that if such Eligible Investment is an obligation of the Trustee or the Paying
Agent, if other than the Trustee, and such Collection Account is maintained
with the Trustee or the Paying Agent, if other than the Trustee, then such
Eligible Investment shall mature not later than such applicable Distribution
Date) or (b) the day on which the funds in such Collection Account are required
to be remitted to the Trustee for deposit into the Certificate Account, and any
such Eligible Investment shall not be sold or disposed of prior to its
maturity. All such Eligible Investments shall be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal or order from time to time, subject to
Section 5.05, and shall not be part of the Trust Fund. The amount of any losses
incurred in respect of any such investments shall be deposited in such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges or assumption fees need not be deposited by the
Master Servicer in the Collection Account and may be retained by the Master
Servicer or the applicable Servicer as additional servicing compensation. If
the Master Servicer deposits in the Collection Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such
Collection Account. In the event the Master Servicer does not provide written
direction to the Trustee pursuant to this Section, all funds on deposit in the
Collection Account shall remain uninvested.
Section 4.02. Application of Funds in the Collection Account. The Master
Servicer may, from time to time, make, or cause to be made, withdrawals from
the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it or by
such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; the Master Servicer's right to reimburse itself pursuant to
this subclause (i) is limited to amounts received on or in respect of
particular Mortgage Loans (including, for this purpose, Liquidation
Proceeds and amounts representing Insurance Proceeds with respect to the
property subject to the related Mortgage) which represent late recoveries
(net of the applicable Servicing Fee and the Master Servicing Fee) of
payments of principal or interest respecting which any such Advance was
made, it being understood, in the case of any such reimbursement, that the
Master Servicer's or Servicer's right thereto shall be prior to the rights
of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing Advances
made by it or by such Servicer that it determines in good faith will not
be recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to which
such Servicing Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, it being understood, in the
case of any such reimbursement, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation Proceeds
for Liquidation Expenses and for amounts expended by it pursuant to
Sections 9.20 and 9.22(a) or the applicable Servicing Agreement in good
faith in connection with the restoration of damaged property and, to the
extent that Liquidation Proceeds after such reimbursement exceed the
unpaid principal balance of the related Mortgage Loan, together with
accrued and unpaid interest thereon at the applicable Mortgage Rate less
the applicable Servicing Fee and the Master Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of
such Liquidation Proceeds, to pay to itself out of such excess the amount
of any unpaid assumption fees, late payment charges or other Mortgagor
charges on the related Mortgage Loan and to retain any excess remaining
thereafter as additional servicing compensation, it being understood, in
the case of any such reimbursement or payment, that such Master Servicer's
or Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iv) in the event it has elected not to pay itself the Master
Servicing Fee out of any Mortgagor payment on account of interest or other
recovery with respect to a particular Mortgage Loan prior to the deposit
of such Mortgagor payment or recovery in the Collection Account, to pay to
itself the Master Servicing Fee for each Distribution Date and any unpaid
Master Servicing Fees for prior Distribution Dates, as reduced pursuant to
Section 5.05, from any Mortgagor payment as to interest or such other
recovery with respect to that Mortgage Loan, as is permitted by this
Agreement;
(v) to reimburse itself or any Servicer for expenses incurred by and
recoverable by or reimbursable to it or such Servicer pursuant to Section
9.04, 9.06, 9.16 or 9.22(a) or pursuant to the applicable Servicing
Agreement, and to reimburse itself for any expenses reimbursable to it
pursuant to Section 10.01(c);
(vi) to pay to the applicable Person, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been repurchased
by such Person pursuant to this Agreement, all amounts received thereon
and not distributed on the date on which the related repurchase was
effected;
(vii) subject to Section 5.04, to pay to itself income earned on the
investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(ix) to make distributions of the Retained Interest to the Retained
Interest Holder on each Distribution Date;
(x) to make payment to itself and others pursuant to any provision of
this Agreement;
(xi) to withdraw funds deposited in error in the Collection Account;
(xii) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xiii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance occasioned
by a termination of the Master Servicer, and the assumption of such duties
by the Trustee or a successor Master Servicer appointed by the Trustee
pursuant to Section 6.14, in each case to the extent not reimbursed by the
terminated Master Servicer, it being understood, in the case of any such
reimbursement or payment, that the right of the Master Servicer or the
Trustee thereto shall be prior to the rights of the Certificateholders;
and
(xiv) to reimburse any Servicer for such amounts as are due thereto
under the applicable Servicing Agreement and have not been retained by or
paid to such Servicer to the extent provided in such Servicing Agreement.
Each Servicer shall be entitled to retain as additional servicing
compensation any Prepayment Penalty Amounts or Prepayment Interest Excess.
In connection with withdrawals pursuant to subclauses (i), (iii), (iv) and
(vi) above, the Master Servicer's or Servicer's entitlement thereto is limited
to collections or other recoveries on the related Mortgage Loan. The Master
Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i), (iii),
(iv) and (vi).
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Trustee shall deliver or cause to be delivered by first class mail to
each Certificateholder and the Certificate Insurer a written report setting
forth the following information, by Mortgage Pool and Certificate Group (on the
basis of Mortgage Loan level information obtained from the Servicers):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other than
any Class of Notional Certificates, allocable to principal on the Mortgage
Loans, including Liquidation Proceeds and Insurance Proceeds, stating
separately the amount attributable to scheduled principal payments and
unscheduled payments in the nature of principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other than
any Class of Principal Only Certificates) allocable to interest, including
any Accrual Amount added to the Class Principal Amount of any Class of
Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders of a
Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be made by
or on behalf of the Master Servicer or any Servicer (or the Trustee) with
respect to such Distribution Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and the
Non-AP Pool Balance as of the close of business on the last day of the
related Due Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates, to the extent applicable, as of such Distribution
Date after giving effect to payments allocated to principal reported under
clause (i) above (and to the addition of any Accrual Amount in the case of
any Class of Accrual Certificates), separately identifying any reduction
of any of the foregoing Certificate Principal Amounts due to Realized
Losses:
(vii) any Realized Losses realized with respect to the Mortgage Loans
(x) in the applicable Prepayment Period and (y) in the aggregate since the
Cut-off Date, stating separately the amount of Special Hazard Losses,
Fraud Losses and Bankruptcy Losses and the aggregate amount of such
Realized Losses, and the remaining Special Hazard Loss Amount, Fraud Loss
Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees and
Trustee Fee paid during the Due Period to which such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of Mortgage
Loans, as reported to the Trustee by the Master Servicer, (a) remaining
outstanding (b) delinquent one month, (c) delinquent two months, (d)
delinquent three or more months, and (e) as to which foreclosure
proceedings have been commenced as of the close of business on the last
Business Day of the calendar month immediately preceding the month in
which such Distribution Date occurs;
(x) the deemed principal balance of each REO Property as of the close
of business on the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance of such
Mortgage Loan and the number of such Mortgage Loans as of the close of
business on the Distribution Date in such preceding month;
(xii) with respect to substitution of Mortgage Loans in the preceding
calendar month, the Scheduled Principal Balance of each Deleted Mortgage
Loan, and of each Qualifying Substitute Mortgage Loan;
(xiii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of Certificates,
after giving effect to the distribution made on such Distribution Date;
(xiv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually distributed);
(xv) any other "loan-level" information for any Mortgage Loans that
are delinquent three or more months and any REO Property held by the Trust
that is reported by the Master Servicer to the Trustee; and
(xvi) any Insured Payments made in respect of (x) Class A3 Guaranteed
Distributions paid under the Class A3 Certificate Insurance Policy or (y)
Class A4 Guaranteed Distributions paid under the Class A4 Certificate
Insurance Policy.
In the case of information furnished pursuant to subclauses (i), (ii) and
(viii) above, the amounts shall be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
The foregoing information and reports shall be prepared and determined by
the Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master Servicer no later than four Business Days prior to the Distribution
Date. In preparing or furnishing the Mortgage Loan data to the Trustee, the
Master Servicer shall be entitled to rely conclusively on the accuracy of the
information or data regarding the Mortgage Loans and the related REO Property
that has been provided to the Master Servicer by each Servicer, and the Master
Servicer shall not be obligated to verify, recompute, reconcile or recalculate
any such information or data. The Trustee shall be entitled to conclusively
rely on the Mortgage Loan data provided by the Master Servicer and shall have
no liability for any errors in the Mortgage Loan data.
On each Distribution Date, the Trustee shall also deliver or cause to be
delivered by first class mail to the Depositor a copy of the above-described
written report, to the following address: Mortgage Finance Group, Lehman
Brothers Inc., Three World Financial Center, 200 Vesey Street, New York, New
York, 10285, Attention: Joseph J. Kelly, or to such other address as the
Depositor may designate.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, which
request, if received by the Trustee, will be promptly forwarded to the Master
Servicer, the Master Servicer shall provide, or cause to be provided, (or, to
the extent that such information or documentation is not required to be
provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to investment in the Certificates;
provided, however, that the Master Servicer shall be entitled to be reimbursed
by such Certificateholder for such Master Servicer's actual expenses incurred
in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
send to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable
such Holders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. The
Master Servicer shall provide the Trustee with such information as is necessary
for the Trustee to prepare such reports.
Section 4.04. Certificate Account. (a) The Trustee shall establish
and maintain in its name, as trustee, a special deposit trust account (the
"Certificate Account"), to be held in trust for the benefit of the
Certificateholders and the Certificate Insurer until disbursed pursuant to the
terms of this Agreement. The Certificate Account shall be an Eligible Account.
If the existing Certificate Account ceases to be an Eligible Account, the
Trustee shall establish a new Certificate Account that is an Eligible Account
within 20 Business Days and transfer all funds on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies of
the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted by
the Master Servicer to the Trustee, all such amounts. The Trustee shall make
withdrawals from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay itself any investment income earned with respect to funds
in the Certificate Account invested in Eligible Investments as set forth
in subsection (c) below, and to make payments to itself and others
pursuant to any provision of this Agreement; (iii) to make payments of the
Master Servicing Fee (to the extent not already withheld or withdrawn from
the Collection Account by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders and the
Certificate Insurer pursuant to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account, which funds, if invested, shall be invested in
Eligible Investments (which may be obligations of the Trustee). All such
investments must mature no later than the next Distribution Date, and shall not
be sold or disposed of prior to their maturity. All such Eligible Investments
will be made in the name of the Trustee (in its capacity as such) or its
nominee. All income and gain realized from any such investment shall be
compensation for the Trustee and shall be subject to its withdrawal on order
from time to time. The amount of any losses incurred in respect of any such
investments shall be paid by the Trustee for deposit in the Certificate Account
out of its own funds, without any right of reimbursement therefor, immediately
as realized. Funds held in the Certificate Account that are not invested shall
be held in cash.
Section 4.05. The Reserve Fund. (a) The Trustee shall establish and
maintain the Reserve Fund, which shall be an interest-bearing Eligible Account
into which there shall have been deposited the amount of $6,000 on the Closing
Date. No additional funds will be deposited into the Reserve Fund after the
Closing Date. All funds deposited in the Reserve Fund, other than investment
earnings thereon which shall be released by the Trustee to the Depositor, shall
be held in trust for the benefit of the Holders of the Class A3 and Class A4
Certificates until withdrawn in accordance with Section 5.02(c). The Reserve
Fund shall be an "outside reserve fund" under the REMIC Provisions. Lehman
Brothers Inc. will be the beneficial owner of the Reserve Fund for federal and
state income tax purposes. The Trustee, upon the instructions of the Depositor,
may invest, or cause to be invested, funds in the Reserve Fund in Eligible
Investments (which may be the obligation of the Trustee).
(b) The Trustee shall from /time to time make withdrawals from the
Reserve Fund on behalf of the Trust Fund for the following purposes:
(i) prior to each Distribution Date, to withdraw from the Reserve
Fund an amount equal to the lesser of (a) any Net Prepayment Interest
Shortfalls attributable to Principal Prepayments in full allocable to the
Class A3 Certificates and the Class A4 Certificates for the related
Distribution Date, and (b) the amount on deposit in the Reserve Fund, and
remit such amount to the Certificate Account for distribution to the Class
A3 Certificateholders or the Class A4 Certificateholders, as applicable,
on such Distribution Date; and
(ii) on the earlier of (a) the Distribution Date on which the Class
Principal Amount of each of the Class A3 Certificates and Class A4
Certificates is reduced to zero and (b) the termination of this Agreement
pursuant to Section 7.01, to clear and terminate the Reserve Fund and to
pay all amounts on deposit therein to Lehman Brothers Inc. at the address
supplied by it to the Trustee for such purpose.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least three Business Days prior to the related
Distribution Date to any Certificateholder owning the entire Percentage
Interest in the Class A5, Class AP, Class B4 or Class B5 Certificates or an
aggregate initial Certificate Principal Amount of at least $2,500,000 in the
Class A1, Class A2, Class A3, Class A4, Class B1, Class B2, Class B3 or Class
B6 Certificates, by wire transfer in immediately available funds to an account
specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Corporate Trust Office. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any of
the Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due with
respect to the Residual Certificate and at such time such final payment in
retirement of any Residual Certificate will be made only upon presentation and
surrender of such Certificate at the Corporate Trust Office of the Trustee or
at the office of its designated presenting agent in New York City. If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day. Payments to the Certificate Insurer shall in all cases be made by
wire transfer of immediately available funds.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Available Distribution Amount,
and shall distribute such amount to the Certificate Insurer, in payment of the
Aggregate Certificate Insurance Premium and all Reimbursement Amounts, to
itself, in payment of the Trustee Fee, and to the Holders of record of each
Class of Certificates in the following order of priority:
(i) to the Certificate Insurer, the Aggregate Certificate Insurance
Premium for such Distribution Date;
(ii) to the Trustee, the Trustee Fee for such Distribution Date;
(iii) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates), the Accrued Certificate Interest thereon for
such Distribution Date, as reduced by such Class's allocable share of any
Net Prepayment Interest Shortfalls for such Distribution Date; provided,
however, that any shortfall in available amounts shall be allocated among
such Classes in proportion to the amount of Accrued Certificate Interest
(as so reduced) that would otherwise be distributable thereon;
(iv) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates), any related Interest Shortfall for such
Distribution Date; provided, however, that any shortfall in available
amounts shall be allocated between such Classes in proportion to the
Interest Shortfall for each such Class on such Distribution Date;
(v) from the remaining Available Distribution Amount, to the Senior
Certificates (other than any Class of Notional Certificates), as follows:
(A) to the Non-AP Certificates, the Senior Principal
Distribution Amount in the following order of priority:
(1) to the Class R Certificate, until the Class Principal
Amount thereof has been reduced to zero;
(2) commencing with the Distribution Date occurring in June
2002, pro rata to the Class A3 Certificates and Class A4
Certificates, from the remaining Senior Distribution Amount, an
amount on each such Distribution Date up to $38,000, until the
Class Certificate Principle Amount of each such Class has been
reduced to zero;
(3) from the remaining Senior Distribution Amount, an
amount on each Distribution Date up to $850,000 to the Class A1
Certificates and the Class A2 Certificates, concurrently, as
follows, until the Class Principal Amount of either such Class
has been reduced to zero;
(a) 99% to the Class A1 Certificates; and
(b) 1% to the Class A2 Certificates;
(4) to the Class A2 Certificates, if not previously retired
pursuant to priority (v)(A)(3), any remaining Senior Principal
Distribution Amount until the Class Principal Amount thereof has
been reduced to zero;
(5) to the Class A1, Certificates, if not previously
retired pursuant to priority (v)(A)(3), any remaining Senior
Principal Distribution Amount until the Class Principal Amount
thereof has been reduced to zero; and
(6) to the Class A3 and Class A4 Certificates, pro rata, if
not previously retired pursuant to priority (v)(A)(2), any
remaining Senior Principal Distribution Amount until the Class
Principal Amounts thereof have been reduced to zero.
(B) to the Class AP Certificates, the AP Principal Distribution
Amount for such Distribution Date, until the Class Principal Amount
thereof has been reduced to zero;
(vi) to the Class AP Certificates, to the extent of the remaining
Available Distribution Amount, the Class AP Deferred Amount for such Class
and Distribution Date, until the Class Principal Amount thereof has been
reduced to zero; provided, however, that (A) distributions pursuant to
this priority shall not exceed the aggregate Subordinate Principal
Distribution Amount for such date; (B) such amounts will not reduce the
Class Principal Amounts of such Class;
(vii) to the Certificate Insurer, payment of any unreimbursed Insured
Payments, plus all amounts due to the Certificate Insurer pursuant to the
Insurance Agreement, together with the interest thereon at the rate
specified in the Insurance Agreement (collectively, the "Reimbursement
Amounts"); and
(viii) from the remaining Available Distribution Amount, to the
Subordinated Certificates, as follows:
(A) to the Class B1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(B) to the Class B1 Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(C) to the Class B1 Certificates, in reduction of the Class
Principal Amount thereof, such Class's Subordinate Class Percentage
of the Subordinate Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(b), until the
Class Principal Amount thereof has been reduced to zero;
(D) to the Class B2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(E) to the Class B2 Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the each Subordinate Principal Distribution Amount for
such Distribution Date, except as provided in Section 5.02(b), until
the Class Principal Amount thereof has been reduced to zero;
(G) to the Class B3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(H) to the Class B3 Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(b), until the
Class Principal Amount thereof has been reduced to zero;
(J) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(K) to the Class B4 Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(b), until the
Class Principal Amount thereof has been reduced to zero;
(M) to the Class B5 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(N) to the Class B5 Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(b), until the
Class Principal Amount thereof has been reduced to zero;
(P) to the Class B6 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(Q) to the Class B6 Certificates, any Interest Shortfall for
such Class on such Distribution Date; and
(R) to the Class B6 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(c), until the
Class Principal Amount thereof has been reduced to zero.
(b) (i) If on any Distribution Date the Credit Support Percentage for
the Class B1 Certificates is less than the Original Credit Support Percentage
for such Class, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount will be made in respect
of the Class B2, Class B3, Class B4, Class B5 or Class B6 Certificates on such
Distribution Date. (ii) If on any Distribution Date the Credit Support
Percentage for the Class B2 Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B3, Class B4, Class B5 or Class B6
Certificates on such Distribution Date. (iii) If on any Distribution Date the
Credit Support Percentage for the Class B3 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B4, Class B5 or Class
B6 Certificates on such Distribution Date. (iv) If on any Distribution Date the
Credit Support Percentage for the Class B4 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B5 or Class B6
Certificates on such Distribution Date. (v) If on any Distribution Date the
Credit Support Percentage for the Class B5 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B6 Certificates on
such Distribution Date.
Any amount not distributed in respect of any Class on any Distribution
Date pursuant to the immediately preceding paragraph will be allocated among
the remaining Subordinate Classes in proportion to their respective Certificate
Principal Amounts.
(c) On each Distribution Date, the Trustee shall distribute the
amount withdrawn from the Reserve Fund with respect to such Distribution Date
pursuant to Section 4.05, to the extent of funds on deposit in the Reserve
Fund, and shall apply such funds to distributions on the Class A3 Certificates
and Class A4 Certificates, as interest thereon, in the amount of any Net
Prepayment Interest Shortfalls attributable to Principal Prepayments in full
allocable to the Class A3 Certificates and Class A4 Certificates with respect
to such Distribution Date.
(d) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R Certificate any remaining Available Distribution Amount
for such Distribution Date after application of all amounts described in
paragraph (a) of this Section 5.02. Any distributions pursuant to this
paragraph (d) shall not reduce the Class Principal Amount of the Class R
Certificate.
Section 5.03. Allocation of Realized Losses. (a) On any Distribution Date,
(x) the applicable AP Percentage of the principal portion of each Realized Loss
(other than any Excess Loss) in respect of a Mortgage Loan will be allocated to
the related Class of Principal Only Certificates until the Class Principal
Amount thereof has been reduced to zero; and (y) the applicable Non-AP
Percentage of the principal portion of each Realized Loss (other than any
Excess Loss) in respect of a Mortgage Loan shall be allocated in the following
order of priority:
first, to the Class B6 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fifth, to the Class B2 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates, pro rata, in
accordance with their Class Principal Amounts; provided, that any
such loss allocated to any Class of Accrual Certificates shall be
allocated (subject to Section 5.03(d)) on the basis of the lesser of
(x) the Class Principal Amount thereof immediately prior to the
applicable Distribution Date and (y) the Class Principal Amount
thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(b) With respect to any Distribution Date, the applicable Non-AP
Percentage of the principal portion of any Excess Loss in respect of a Mortgage
Loan shall be allocated, pro rata among the Certificates, other than the Class
of Principal Only Certificates, based on their respective Class Principal
Amounts; provided, that any such loss allocated to any Class of Accrual
Certificates (and any Accrual Component) shall be allocated (subject to Section
5.03(d) on the basis of the lesser of (x) the Class Principal Amount thereof
immediately prior to the applicable Distribution Date and (y) the Class
Principal Amount thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto). The applicable AP Percentage of the principal
portion of an Excess Loss shall be applied to the Class of Principal Only
Certificates until the Class Principal Amount thereof has been reduced to zero.
(c) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 5.03(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Amounts. Any
allocation of Realized Losses pursuant to this paragraph (c) shall be
accomplished by reducing the Certificate Principal Amount of the related
Certificates on the related Distribution Date in accordance with Section
5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
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 Principal
Only Certificates on such Distribution Date will be taken into account in
determining distributions in respect of any related Class AP Deferred Amount
for such date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after
giving effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class to
which any portion of such Realized Loss had previously been allocated shall be
entitled to receive, on the Distribution Date in the month following the month
in which such recovery is received, its pro rata share (based on the Class
Principal Amount thereof) of such recovery, up to the amount of the portion of
such Realized Loss previously allocated to such Class. In the event that the
total amount of such recovery exceeds the amount of Realized Loss allocated to
the outstanding Classes in accordance with the preceding provisions, each
outstanding Class of Certificates shall be entitled to receive its pro rata
share of the amount of such excess, up to the amount of any unrecovered
Realized Loss previously allocated to such Class. Any such recovery allocated
to a Class of Certificates shall not further reduce the Certificate Principal
Amount of such Certificate. Any such amounts not otherwise allocated to any
Class of Certificates, pursuant to this subsection shall be treated as
Principal Prepayments for purposes of this Agreement.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances shall
be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Due Period (other than Balloon Payments) have not been
received, the Master Servicer shall, or cause the applicable Servicer to,
advance such amount, less an amount, if any, to be set forth in an Officer's
Certificate to be delivered to the Trustee on such Determination Date, which if
advanced the Master Servicer or the applicable Servicer has determined would
not be recoverable from amounts received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds or otherwise.
If the Master Servicer determines that an Advance is required, it shall on the
Deposit Date immediately following such Determination Date either (i) remit to
the Trustee from its own funds (or funds advanced by the applicable Servicer)
for deposit in the Certificate Account immediately available funds in an amount
equal to such Advance, (ii) cause to be made an appropriate entry in the
records of the Collection Account that funds in such account being held for
future distribution or withdrawal have been, as permitted by this Section 5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account or (iii)
make Advances in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Advance. Any funds being held in the Collection
Account for future distribution to Certificateholders and so used shall be
replaced by the Master Servicer from its own funds by remittance to the Trustee
for deposit in the Certificate Account on or before any future Deposit Date to
the extent that funds in the Certificate Account on such Deposit Date shall be
less than payments to Certificateholders required to be made on the related
Distribution Date. The Master Servicer and each Servicer shall be entitled to
be reimbursed from the Collection Account for all Advances made by it as
provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to Section 5.04 on or before the
Deposit Date, the Trustee, as successor Master Servicer pursuant to Section
6.14, shall, on or before the related Distribution Date, deposit in the
Certificate Account an amount equal to the excess of (a) Advances required to
be made by the Master Servicer or any Servicer that would have been deposited
in such Certificate Account over (b) the amount of any Advance made by the
Master Servicer or any Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance only
if it is not prohibited by law from doing so and it has determined that such
Advance would be recoverable from amounts to be received with respect to such
Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Trustee shall be entitled to be reimbursed from the
Certificate Account for Advances made by it pursuant to this Section 5.04 as if
it were the Master Servicer.
Section 5.05. Compensating Interest Payments. The amount of the Aggregate
Master Servicing Compensation payable to the Master Servicer in respect of any
Distribution Date shall be reduced by the amount of any Compensating Interest
Payment for such Distribution Date, but only to the extent such Compensating
Interest Payment is not actually made by a Servicer on the applicable
Remittance Date. Such amount shall not be treated as an Advance and shall not
be reimbursable to the Master Servicer.
Section 5.06. Distributions of Principal on Redemption Certificates. (a)
Except as provided in subclauses (d) and (f) below, on each Distribution Date
on which distributions in reduction of the Class Principal Amount of a Class of
Redemption Certificates are made, such distributions will be made in the
following order of priority:
(i) any request by the personal representative of a Deceased Holder
or by a surviving tenant by the entirety, by a surviving joint tenant or
by a surviving tenant in common or other Person empowered to act on behalf
of such Deceased Holder upon his or her death, in an amount up to but not
exceeding $100,000 per request; and
(ii) any request by a Living Holder, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i) and (ii)
above up to a second $100,000 and $10,000 per request, respectively. This
sequence of priorities will be repeated for each request for principal
distributions made by the Certificate Owners of a Class of Redemption
Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Amounts of Redemption Certificates presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in the
order of their receipt by the Clearing Agency. Requests for distributions in
reduction of the Certificate Principal Amounts of Redemption Certificates
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of priority established by the random lot procedures of
the Clearing Agency after all requests with respect to such Class presented in
accordance with clause (i) have been honored. All requests for distributions in
reduction of the Class Principal Amount of a Class of Redemption Certificates
with respect to any Distribution Date shall be made in accordance with Section
5.06(c) below and must be received by the Clearing Agency and forwarded to, and
received by, the Trustee no later than the close of business on the related
Record Date. Requests for distributions that are received by the Clearing
Agency and forwarded to the Trustee after the related Record Date and requests,
in either case, for distributions timely received but not accepted with respect
to any Distribution Date, will be treated as requests for distributions in
reduction of the Class Principal Amount of the applicable Class of Redemption
Certificates on the next succeeding Distribution Date, and each succeeding
Distribution Date thereafter, until each such request is accepted or is
withdrawn as provided in Section 5.06(c). Such requests as are not so withdrawn
shall retain their order of priority without the need for any further action on
the part of the appropriate Certificate Owner of the related Redemption
Certificate, all in accordance with the procedures of the Clearing Agency and
the Trustee. Upon the transfer of beneficial ownership of any Redemption
Certificate, any distribution request previously submitted with respect to such
Certificate will be deemed to have been withdrawn only upon the receipt by the
Trustee of notification of such withdrawal using a form required by the
Clearing Agency.
Distributions in reduction of the Certificate Principal Amounts of
Redemption Certificates will be applied, in the aggregate, to such Certificates
in an amount equal to the portion of the Available Distribution Amount
distributable to the Redemption Certificates pursuant to Sections 5.02
(a)(v)(A)(2) and 5.02 (a)(v)(A)(6) plus any amounts available for distribution
from the applicable Rounding Account pursuant to Section 5.06(e); provided that
the aggregate distribution in reduction of the Class Principal Amount of any
Class of Redemption Certificates on any Distribution Date is made in an
integral multiple of $1,000.
(b) A "Deceased Holder" is a Certificate Owner of a Redemption
Certificate who was living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety, surviving
joint tenant or surviving tenant in common or other Person empowered to act on
behalf of such Certificate Owner upon his or her death, causes to be furnished
to the Trustee a certified copy of the death certificate of such Certificate
Owner and any additional evidence of death required by and satisfactory to the
Trustee and any tax waivers requested by the Trustee. Redemption Certificates
beneficially owned by tenants by the entirety, joint tenants or tenants in
common will be considered to be beneficially owned by a single owner. The death
of a tenant by the entirety, joint tenant or tenant in common will be deemed to
be the death of the Certificate Owner, and any Redemption Certificates so
beneficially owned will be eligible for priority with respect to distributions
in reduction of the Class Principal Amount of such Class of Redemption
Certificates, subject to the limitations stated above. Redemption Certificates
beneficially owned by a trust will be considered to be beneficially owned by
each beneficiary of the trust to the extent of such beneficiary's beneficial
interest therein, but in no event will a trust's beneficiaries collectively be
deemed to be Certificate Owners of a number of Individual Redemption
Certificates greater than the number of Individual Redemption Certificates of
which such trust is the beneficial owner. The death of a beneficiary of a trust
will be deemed to be the death of a Certificate Owner of the Redemption
Certificates beneficially owned by the trust to the extent of such
beneficiary's beneficial interest in such trust. The death of an individual who
was a tenant by the entirety, joint tenant or tenant in common in a tenancy
that is the beneficiary of a trust will be deemed to be the death of the
beneficiary of the trust. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial ownership
interests in Redemption Certificates will be deemed to be the death of the
Certificate Owner of such Redemption Certificates regardless of the
registration of ownership of such Redemption Certificates, if such beneficial
interest can be established to the satisfaction of the Trustee. Such beneficial
interest will be deemed to exist in typical cases of street name or nominee
ownership, ownership by a trustee, ownership under the Uniform Gifts to Minors
Act and community property or other joint ownership arrangements between a
husband and wife. Beneficial interests shall include the power to sell,
transfer or otherwise dispose of a Redemption Certificate and the right to
receive the proceeds therefrom, as well as interest and distributions in
reduction of the Certificate Principal Amounts of the Redemption Certificates
payable with respect thereto. The Trustee shall not be under any duty to
determine independently (a) the occurrence of the death of any deceased
Certificate Owner or (b) whether an individual is the personal representative
of a Deceased Holder, or the surviving tenant by the entirety, or the surviving
joint tenant, or the surviving tenant in common, or is otherwise the Person
empowered to act on behalf of such Deceased Holder (a "Representative"). The
Trustee shall be entitled to rely on a certificate executed by the
Representative indicating the nature of such Representative's authority on
behalf of the Deceased Holder. The Trustee may rely entirely upon documentation
delivered to it pursuant to this Section 5.06 in establishing the eligibility
of any Certificate Owner to receive the priority accorded Deceased Holders in
this Section 5.06(b), and shall have no liability if it makes such
determination in accordance with such documentation.
(c) Requests for distributions in reduction of the Certificate
Principal Amount of a Redemption Certificate must be made by delivering a
written request therefor to the Clearing Agency Participant or Financial
Intermediary that maintains the account evidencing the Certificate Owner's
interest in such Redemption Certificate. Such Clearing Agency Participant or
Financial Intermediary should in turn make the request of the Clearing Agency
(or, in the case of a Financial Intermediary, such Financial Intermediary
should notify the related Clearing Agency Participant of such request, which
Clearing Agency Participant should make the request of the Clearing Agency) on
a form required by the Clearing Agency and provided to the Clearing Agency
Participant. Upon receipt of such request, the Clearing Agency will date and
time stamp such request and forward such request to the Trustee. The Clearing
Agency may establish such procedures as it deems fair and equitable to
establish the order of receipt of requests for such distributions received by
it on the same day. The Trustee shall not be liable for any delay in delivery
of requests for distributions or withdrawals of such requests by the Clearing
Agency, a Clearing Agency Participant or any Financial Intermediary.
In the event that any requests for distributions in reduction of the
Certificate Principal Amount of Redemption Certificates are rejected by the
Trustee for failure to comply with the requirements of this Section 5.06, the
Trustee shall return such requests to the appropriate Clearing Agency
Participant with a copy to the Clearing Agency with an explanation as to the
reason for such rejection.
The Trustee shall maintain a list of those Clearing Agency Participants
representing the Certificate Owners of Redemption Certificates that have
submitted requests for distributions in reduction of the Certificate Principal
Amount of such Redemption Certificates, together with the order of receipt and
the amounts of such requests. The Trustee shall notify the Clearing Agency and
the appropriate Clearing Agency Participants as to which requests should be
honored on each Distribution Date. Requests shall be honored by the Clearing
Agency in accordance with the procedures, and subject to the priorities and
limitations, described in this Section 5.06. The exact procedures to be
followed by the Trustee and the Clearing Agency for purposes of determining
such priorities and limitations shall be those established from time to time by
the Trustee or the Clearing Agency, as the case may be. The decisions of the
Trustee and the Clearing Agency concerning such matters shall be final and
binding on all affected Persons.
Payments in reduction of the Certificate Principal Amounts of Redemption
Certificates shall be made on the applicable Distribution Date and the
Certificate Principal Amounts as to which such payments are made shall cease to
bear interest after the last day of the month preceding the month in which such
Distribution Date occurs.
Any Certificate Owner of a Redemption Certificate that has requested a
distribution may withdraw its request by so notifying in writing the Clearing
Agency Participant or Financial Intermediary that maintains such Certificate
Owner's account. In the event that such account is maintained by a Financial
Intermediary, such Financial Intermediary should notify the related Clearing
Agency Participant which in turn should forward the withdrawal of such request,
on a form required by the Clearing Agency, to the Trustee. If such notice of
withdrawal of a request for distribution has not been received by the Clearing
Agency and forwarded to the Trustee on or before the Record Date for the next
Distribution Date, the previously made request for distribution will be
irrevocable with respect to the making of distributions in reduction of the
Certificate Principal Amount of such Redemption Certificate on such
Distribution Date.
(d) To the extent, if any, that amounts available for distribution in
reduction of the Class Principal Amount of any Class of Redemption Certificates
on a Distribution Date exceed the dollar amount of requests for distributions
with respect to such Class that have been received by the related Record Date,
as provided in Section 5.06(c) above, distributions in reduction of the Class
Principal Amount of such Class of Redemption Certificates will be made by
mandatory distributions in reduction thereof. The Trustee shall notify the
Clearing Agency of the aggregate amount of the mandatory distribution in
reduction of the Class Principal Amount of such Class of Redemption
Certificates to be made on the next Distribution Date. The Clearing Agency
shall then allocate such aggregate amount among its Clearing Agency
Participants on a random lot basis. Each Clearing Agency Participant and, in
turn, each Financial Intermediary, will then select, in accordance with its own
procedures, Individual Redemption Certificates from among those held in its
accounts to receive mandatory distributions in reduction of the Class Principal
Amount of such Class of Redemption Certificates, such that the total amount so
selected is equal to the aggregate amount of such mandatory distributions
allocated to such Clearing Agency Participant by the Clearing Agency and to
such Financial Intermediary by its related Clearing Agency Participant, as the
case may be. Clearing Agency Participants and Financial Intermediaries that
hold Redemption Certificates selected for mandatory distributions in reduction
of the Class Principal Amount thereof should provide notice of such mandatory
distributions to the affected Certificate Owners.
(e) On the Closing Date, a Rounding Account shall be established with
the Trustee for each Class of Redemption Certificates, and Lehman Brothers Inc.
shall cause to be initially deposited the sum of $999.99 in each Rounding
Account. On each Distribution Date on which a distribution is made in reduction
of the Class Principal Amount of a Class of Redemption Certificates, funds on
deposit in the applicable Rounding Account shall be, to the extent needed,
withdrawn by the Trustee and applied to round upward to an integral multiple of
$1,000 the aggregate distribution in reduction of the Class Principal Amount to
be made on such Redemption Certificates. Rounding of such distribution on such
Redemption Certificates shall be accomplished, on the first such Distribution
Date, by withdrawing from the applicable Rounding Account the amount of funds,
if any, needed to round the amount otherwise available for such distribution in
reduction of the Class Principal Amount of such Class of Redemption
Certificates upward to the next integral multiple of $1,000. On each succeeding
Distribution Date on which distributions in reduction of the Class Principal
Amount of such Class of Redemption Certificates are to be made, the aggregate
amount of such distributions allocable to such Class of Redemption Certificates
shall be applied first to repay any funds withdrawn from the applicable
Rounding Account and not previously repaid, and then the remainder of such
allocable amount, if any, shall be similarly rounded upward and applied as
distributions in reduction of the Class Principal Amount of such Class of
Redemption Certificates; this process shall continue on succeeding Distribution
Dates until the Class Principal Amount of such Class of Redemption Certificates
has been reduced to zero. Each Rounding Account shall be an "outside reserve
fund" under the REMIC Provisions that is beneficially owned for all federal
income tax purposes by Lehman Brothers Inc. Lehman Brothers Inc. will report
all income, gain, deduction or loss with respect thereto. The Trustee, upon the
instructions of the Depositor, may invest, or cause to be invested funds in
either Rounding Account in Eligible Investments (which may be obligations of
the Trustee). The Trustee shall distribute interest earnings, if any, on
amounts held in any Rounding Account as such interest is earned pursuant to
written instructions from Lehman Brothers Inc. to the Trustee. In no event
shall the Trustee be liable for investment losses resulting from investment of
funds in the Rounding Accounts made in accordance with the instructions of the
Depositor.
Notwithstanding anything herein to the contrary, on the Distribution Date
on which distributions in reduction of the Class Principal Amount of any Class
of Redemption Certificates will reduce the Class Principal Amount thereof to
zero or in the event that distributions in reduction of the Class Principal
Amount of such Class of Redemption Certificates are made in accordance with the
provisions set forth in Section 5.06(f), an amount equal to the difference
between $999.99 and the sum then held in the applicable Rounding Account shall
be paid from the Available Distribution Amount for such Distribution Date to
such Rounding Account. Any funds then on deposit in such Rounding Account shall
be distributed to Lehman Brothers Inc.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the Credit
Support Depletion Date, all distributions in reduction of the Class Principal
Amount of any Class of Redemption Certificates will be made among the Holders
of such Class of Certificates, pro rata, based on their Certificate Principal
Amounts, and will not be made in integral multiples of $1,000 or pursuant to
requested distributions or mandatory distributions by random lot.
(g) In the event that Definitive Certificates representing any Class
of Redemption Certificates are issued pursuant to Section 3.09(c), all requests
for distributions or withdrawals of such requests relating to such Class must
be submitted to the Trustee, and the Trustee shall perform the functions
described in Section 5.06(a) through (c) using its own procedures, which
procedures shall, to the extent practicable, be consistent with the procedures
described in Section 5.06(a) through (c).
Section 5.07. The Certificate Insurance Policies. (a) If, on the second
Business Day before any Distribution Date, the Trustee determines that an
Insured Payment is required to be made by the Certificate Insurer with respect
to either the Class A3 Certificate Insurance Policy or the Class A4 Certificate
Insurance Policy on such Distribution Date, the Trustee shall determine the
amount of any such Insured Payment and shall give notice to the Certificate
Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the
related Certificate Insurance Policy and submitting such Notice of Nonpayment
by 12:00 noon, New York City time on such second Business Day as a claim for an
Insured Payment. The Trustee's responsibility for delivering a Notice of
Nonpayment to the Certificate Insurer, as provided in the preceding sentence,
is limited to the availability, timeliness and accuracy of the information
provided by the Master Servicer.
(b) In the event the Trustee receives a certified copy of an order of
the appropriate court that any scheduled payment of principal or interest on a
Class A3 Certificate or Class A4 Certificates has been voided in whole or in
part as a preference payment under applicable bankruptcy law, the Trustee shall
(i) promptly notify the Certificate Insurer, as appropriate, and the Fiscal
Agent, if any, and (ii) comply with the provisions of the applicable
Certificate Insurance Policy to obtain payment by the Certificate Insurer of
such voided scheduled payment. In addition, the Trustee shall mail notice to
all Holders of the Class A3 Certificates or Class A4 Certificates, as the case
may be, so affected that, in the event that any such Holder's scheduled payment
is so recovered, such Holder will be entitled to payment pursuant to the terms
of the applicable Certificate Insurance Policy, a copy of which shall be made
available to such Holders by the Trustee. The Trustee shall furnish to the
Certificate Insurer and the appropriate Fiscal Agent, if any, its records
listing the payments on the affected Class A3 or Class A4 Certificates, if any,
that have been made by the Trustee and subsequently recovered from the affected
Holders, and the dates on which such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish two separate special purpose trust accounts in the
name of the Trustee, one for the benefit of Holders of the Class A3
Certificates (the "Class A3 Policy Payments Account") and the other for the
benefit of the Holders of the Class A4 Certificates (the "Class A4 Policy
Payments Account") over which the Trustee shall have exclusive control and sole
right of withdrawal. Each such Policy Payments Account shall be an Eligible
Account.
(i) The Trustee shall deposit any amount paid under the Class A3
Certificate Insurance Policy into the Class A3 Policy Payments Account and
distribute such amount only for the purposes of making payments to Holders
of the Class A3 Certificates in respect of the Class A3 Guaranteed
Distributions (or other amounts payable pursuant to paragraph (b) above)
on the Class A3 Certificates by the Certificate Insurer pursuant to the
Class A3 Certificate Insurance Policy) for which the related claim was
made under the Class A3 Certificate Insurance Policy. Such amounts shall
be allocated by the Trustee to Holders of Class A3 Certificates affected
by such shortfalls in the same manner as principal and interest
distributions are to be allocated with respect to such Certificates
pursuant to Section 5.02.
(ii) The Trustee shall deposit any amount paid under the Class A4
Certificate Insurance Policy into the Class A4 Policy Payments Account and
distribute such amount only for purposes of making payments to the Holders
of the Class A4 Certificates in respect of Class A4 Guaranteed
Distributions (or other amounts payable pursuant to paragraph (b) above)
on the Class A4 Certificates by the Certificate Insurer pursuant to the
Class A4 Certificate Insurance Policy) for which the related claim was
made under the Class A4 Certificate Insurance Policy. Such amounts shall
be allocated by the Trustee to the Holders of the Class A4 Certificates
affected by such shortfalls in the same manner as principal and interest
distributions are to be allocated with respect to such Certificates
pursuant to Section 5.02.
(iii) It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used
to make regular payments hereunder with funds withdrawn from the
Certificate Account. However, any payments made on the Class A3
Certificates from funds in the Class A3 Policy Payments Account or to the
Class A4 Certificates from funds in the Class A4 Policy Payments Account
shall be noted as provided in subsection (e) below. Funds held in either
Policy Payments Account shall not be invested by the Trustee.
(d) (i) Any funds received from the Certificate Insurer for deposit
into the Class A3 Policy Payments Account pursuant to the Class A3 Certificate
Insurance Policy in respect of a Distribution Date or otherwise as a result of
any claim under such Class A3 Certificate Insurance Policy shall be applied by
the Trustee directly to the payment in full (i) of the Insured Payments due on
such Distribution Date on the Class A3 Certificates, or (ii) of other amounts
to which payments under the Class A3 Certificate Insurance Policy are to be
applied. Funds received by the Trustee as a result of any claim under the Class
A3 Certificate Insurance Policy shall be used solely for payment to the Holders
of the Class A3 Certificates, respectively, and may not be applied for any
other purpose, including, without limitation, satisfaction of any costs,
expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining
in the Class A3 Policy Payments Account on the first Business Day after each
Distribution Date shall be remitted promptly to the Certificate Insurer
pursuant to the written instruction of the Certificate Insurer.
(ii) Any funds received from the Certificate Insurer for deposit into
the Class A4 Policy Payments Account pursuant to the Class A4 Certificate
Insurance Policy in respect of a Distribution Date or otherwise as a
result of any claim under such Class A4 Certificate Insurance Policy shall
be applied by the Trustee directly to the payment in full (i) of the
Insured Payments due on such Distribution Date on the Class A4
Certificates, or (ii) of other amounts to which payments under the Class
A4 Certificate Insurance Policy are to be applied. Funds received by the
Trustee as a result of any claim under the Class A4 Certificate Insurance
Policy shall be used solely for payment to the Holders of the Class A4
Certificates, respectively, and may not be applied for any other purpose,
including, without limitation, satisfaction of any costs, expenses or
liabilities of the Trustee or the Trust Fund. Any funds remaining in the
Class A4 Policy Payments Account on the first Business Day after each
Distribution Date shall be remitted promptly to the Certificate Insurer
pursuant to the written instruction of the Certificate Insurer.
(e) The Trustee shall keep complete and accurate records in respect
of (i) all funds remitted to it by the Certificate Insurer and deposited into
either Policy Payments Account and (ii) the allocation of such funds to (A)
payments of interest on and principal in respect of any Class A3 Certificates
or Class A4 Certificates, as applicable, (B) Realized Losses allocated to the
Class A3 or Class A4 Certificates, as applicable, (C) Net Prepayment Interest
Shortfalls attributable to Principal Prepayments in full allocated to the Class
A3 Certificates or Class A4 Certificates, as applicable, and (D) payments in
respect of Preference Amounts on either the Class A3 or Class A4 Certificates.
The Certificate Insurer shall have the right to inspect such records at
reasonable times during normal business hours upon three Business Days' prior
notice to the Trustee. Any Insured Payments disbursed by the Trustee from
proceeds of the Class A3 Certificate Insurance Policy or Class A4 Certificate
Insurance Policy shall be considered payment by the Certificate Insurer and not
by the Trust Fund with respect to the related Certificates and the Certificates
Insurer will be entitled to receive the related Reimbursement Amount pursuant
to Section 5.02(a)(vii).
(f) The Trustee acknowledges, and each Holder of a Class A3
Certificate and Class A4 Certificate by its acceptance of such Certificate
agrees, that, without the need for any further action on the part of the
Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes
Insured Payments, directly or indirectly, on account of principal of or
interest on any Class A3 Certificates or Class A4 Certificates, the Certificate
Insurer will be fully subrogated to the rights of the Holders of such
Certificates to receive the related Reimbursement Amount pursuant to Section
5.02(a)(vii). The Class A3 and Class A4 Certificateholders, by acceptance of
their Certificates, assign their rights as Holders of such Certificates to the
extent of the Certificate Insurer's interest with respect to amounts paid under
the Class A3 Certificate Insurance Policy, or Class A4 Certificate Insurance
Policy, as applicable. Each of the Depositor and Trustee agrees to such
subrogation and, further agrees to execute such instruments and to take such
actions as, in the sole judgment of the Certificate Insurer are necessary to
evidence such subrogation and, subject to the priority of payment provisions of
this Agreement, to perfect the rights of the Certificate Insurer to receive any
moneys paid or payable in respect of the Class A3 or Class A4 Certificates, as
applicable, under this Agreement or otherwise. Anything herein to the contrary
notwithstanding, solely for purposes of determining the Certificate Insurer's
rights as subrogee for payments distributable pursuant to Section 5.02, any
payment with respect to distributions to the Class A3 or Class A4 Certificates
that is made with funds received pursuant to the terms of the applicable
Certificate Insurance Policy shall not be considered payment of the Class A3 or
Class A4 Certificates, as the case may be, from the Trust Fund and shall not
result in the distribution or the provision for the distribution in reduction
of the Class Principal Amount of the Class A3 or Class A4 Certificates, as the
case may be, or Accrued Certificate Interest thereon within the meaning of
Article V.
(g) Upon a Responsible Officer of the Trustee obtaining actual
knowledge of the occurrence of an Event of Default, the Trustee shall promptly
notify the Certificate Insurer of such Event of Default.
(h) The Trustee shall promptly notify the Certificate Insurer of
either of the following as to which a Responsible Officer has actual knowledge:
(A) the commencement of any proceeding by or against the Depositor commenced
under the United States bankruptcy code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an "Insolvency
Proceeding") and (B) the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer (a "Preference
Claim") of any distribution made with respect to the Class A3 Certificates or
Class A4 Certificates. Each Holder of a Class A3 Certificate or Class A4
Certificates, by its purchase of such Certificates, and the Trustee hereby
agree that the Certificate Insurer (so long as no the Certificate Insurer
Default exists) may at any time during the continuation of any proceeding
relating to a Preference Claim direct all matters relating to such Preference
Claim, including, without limitation, (i) the direction of any appeal of any
order relating to any Preference Claim and (ii) the posting of any surety,
supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, the Certificate Insurer shall be
subrogated to the rights of the Trustee and each Holder of a Class A3 or Class
A4 Certificate, as applicable, in the conduct of any Preference Claim,
including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with any
such Preference Claim.
(i) The Trustee shall surrender the Class A3 Certificate Insurance
Policy and the Class A4 Certificate Insurance Policy to the Certificate Insurer
for cancellation upon the termination of the Trust Fund pursuant to Section
7.01 hereof.
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during the
continuance of an Event of Default (of which a Responsible Officer of the
Trustee shall have actual knowledge), undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee provided for in this Agreement shall not be
construed as a duty of the Trustee. If an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge) has occurred
and has not otherwise been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and use the same degree of
care and skill in their exercise as a prudent Person would exercise or use
under the circumstances in the conduct of such Person's own affairs unless the
Trustee is acting as Master Servicer, in which case it shall use the same
degree of care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Master Servicer, to the Trustee pursuant to this Agreement,
and shall not be required to recalculate or verify any numerical information
furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the consent or direction of Holders of Certificates as
provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer (i) to remit funds (or to make Advances) or
(ii) to furnish information to the Trustee when required to do so) unless
a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Holders of the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and 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; and
(iv) The Trustee shall not be responsible for any act or omission of
the Master Servicer.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding Certificates
which evidence, as to such Class, Percentage Interests aggregating not less
than 25% as to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability for the performance of any of its duties
hereunder or the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require the Trustee
to perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or any Servicer under this Agreement except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in accordance with the terms of this Agreement.
(g) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Collection Amount) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or
any agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, re-filing or
re-depositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to the
Trustee pursuant to this Agreement believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties.
(i) The Trustee shall pay, out of its own funds, but not to exceed in
the aggregate $3,000 per calendar year, one-half of any fees assessed by the
Rating Agencies after the Closing Date in connection with maintaining the
ratings of the Certificates. Any additional fees in excess of such amounts
shall be paid by the Depositor.
(j) The Trustee shall not be liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or other officers
of the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(k) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors, opinion of counsel or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document (provided the same appears regular on its
face), unless requested in writing to do so by Holders of at least a
majority in Class Principal Amount (or Class Notional Amount) of each
Class of Certificates; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability or payment
of such estimated expenses as a condition to proceeding. The reasonable
expense thereof shall be paid by the Holders requesting such
investigation; (v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of
the Trustee conferred on them by such appointment provided that the
Trustee shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein, and provided further that the
Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto, in each case at
the request, order or direction of any of the Certificateholders pursuant
to the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the powers
granted hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Mortgage Loan, or related document save that the Trustee represents
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to (A)
applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally, and (B) general principles of
equity regardless of whether such enforcement is considered in a proceeding in
equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or for
the use or application of any funds deposited into the Collection Account, the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. Except as otherwise provided herein, the Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04. Trustee May Own Certificates. The Trustee and any Affiliate
or agent of the Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact banking and trust with the
other parties hereto with the same rights it would have if it were not Trustee
or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be (i) an institution insured by the FDIC and (ii) a
corporation or national banking association, organized and doing business under
the laws of any State or the United States of America, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such corporation
or national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor and the Master Servicer. Upon receiving
such notice of resignation, the Depositor will promptly appoint a successor
trustee by written instrument, one copy of which instrument shall be delivered
to the resigning Trustee, one copy to the successor trustee, one copy to the
Master Servicer and one copy to the Certificate Insurer. If no successor
trustee shall have been so appointed and shall have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv) the
continued use of the Trustee would result in a downgrading of the rating by the
Rating Agencies (in the case of the Class A3 Certificates and Class A4
Certificates, determined without regard to the applicable Certificate Insurance
Policy) of any Class of Certificates with a rating, then the Depositor shall
remove the Trustee and appoint a successor trustee by written instrument, one
copy of which instrument shall be delivered to the Trustee so removed, one copy
to the successor trustee, one copy to the Certificate Insurer and one copy to
the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee, the Depositor and the Certificate Insurer
remove the Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee so removed one copy to the
Master Servicer and one copy to the Certificate Insurer; the Depositor shall
thereupon use its best efforts to appoint a mutually acceptable successor
trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed as
provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and documents and
statements related to each Mortgage Files held by it hereunder, and shall duly
assign, transfer, deliver and pay over to the successor trustee the entire
Trust Fund, together with all necessary instruments of transfer and assignment
or other documents properly executed necessary to effect such transfer and such
of the record or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Master Servicer and the predecessor trustee shall
execute and deliver such other instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Master Servicer shall mail notice of the succession of
such trustee hereunder to the Certificate Insurer and to all Holders of
Certificates at their addresses as shown in the Certificate Register and to the
Rating Agencies. The expenses of such mailing shall be borne by the Master
Servicer.
Section 6.08. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Persons succeeding to the business of the Trustee,
shall be the successor to the Trustee hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided that such
Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee, the
Depositor or the Certificateholders evidencing more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates shall
each have the power from time to time to appoint one or more Persons to act
either as co-trustees jointly with the Trustee, or as separate trustees, or as
custodians, for the purpose of holding title to, foreclosing or otherwise
taking action with respect to any Mortgage Loan outside the state where the
Trustee has its principal place of business where such separate trustee or
co-trustee is necessary or advisable (or the Trustee has been advised by the
Master Servicer that such separate trustee or co-trustee is necessary or
advisable) under the laws of any state in which a property securing a Mortgage
Loan is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a property securing
a Mortgage Loan is located or in any state in which any portion of the Trust
Fund is located. The separate Trustees, co-trustees, or custodians so appointed
shall be trustees or custodians for the benefit of all the Certificateholders
and shall have such powers, rights and remedies as shall be specified in the
instrument of appointment; provided, however, that no such appointment shall,
or shall be deemed to, constitute the appointee an agent of the Trustee. The
obligation of the Trustee to make Advances pursuant to Section 5.04 and 6.14
hereof shall not be affected or assigned by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations, including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or the Certificateholders evidencing more than 50%
of the Aggregate Voting Interests of the Certificates may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal does
not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. The Trustee shall
not be responsible for any action or inaction of any separate trustee,
co-trustee or custodian. If any separate trustee, co-trustee or custodian shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one or
more Authenticating Agents which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation organized
and doing business under the laws of the United States of America or of any
state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 6.10. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any Authenticating Agent shall be entitled to reasonable compensation for its
services and, if paid by the Trustee, it shall be a reimbursable expense
pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding and incurred without negligence or willful misconduct on their
part, arising out of, or in connection with, the acceptance or administration
of the trusts created hereunder, including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have given the
Depositor, the Master Servicer and the Holders written notice thereof
promptly after the Trustee shall have knowledge thereof; provided,
however, a failure by the Trustee to provide written notice to the
Depositor, the Master Servicer and the Holders promptly after the Trustee
shall have obtained knowledge of a claim shall not relieve the Trust Fund
of its obligations to indemnify the Trustee under this Section 6.11;
(ii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by the
Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee and shall be construed
to include, but not be limited to any loss, liability or expense under any
environmental law.
Section 6.12. Fees and Expenses of Trustee. The Trustee shall be entitled
to the Trustee Fee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), to the extent
provided herein, and in addition, the Trustee shall be entitled to receive, and
is authorized to pay to itself the amount of income or gain earned from the
investment of funds in the Certificate Account.
Section 6.13. Collection of Monies. Except as otherwise expressly provided
in this Agreement, the Trustee may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust Fund and shall distribute it
as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor.
(a) The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(i) any failure by the Master Servicer to furnish the Trustee the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) which continues unremedied for a period of one Business Day after
the date upon which written notice of such failure shall have been given
to such Master Servicer by the Trustee or to such Master Servicer and the
Trustee by the Holders of not less than 25% of the Class Principal Amount
(or Class Notional Amount) of each Class of Certificates affected thereby;
or
(ii) Any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of such Master Servicer contained in this Agreement
which continues unremedied for a period of 30 days (or 15 days, in the
case of a failure to maintain any Insurance Policy required to be
maintained pursuant to this Agreement) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to such Master Servicer by the Trustee, or to such Master Servicer
and the Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected
thereby; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days or any Rating Agency
reduces or withdraws or threatens to reduce or withdraw the rating of the
Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to such Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
successor servicer as specified in Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section 9.14
hereof shall prove to be incorrect as of the time made in any respect that
materially and adversely affects the interests of the Certificateholders,
and the circumstance or condition in respect of which such representation
or warranty was incorrect shall not have been eliminated or cured within
60 days after the date on which written notice of such incorrect
representation or warranty shall have been given to the Master Servicer by
the Trustee, or to the Master Servicer and the Trustee by the Holders of
not less than 25% of the Aggregate Certificate Principal Amount of each
Class of Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Trustee and
Certificateholders holding more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated the
rights and obligations of such Servicer under the applicable Servicing
Agreement and replaced such Servicer with an FNMA- or FHLMC-approved
servicer within 30 days of the absence of such approval; or
(x) Any failure of the Master Servicer to remit to the Trustee any
payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to
applicable law, so long as any such Event of Default shall not have been
remedied within any period of time prescribed by this Section 6.14, the
Trustee, by notice in writing to the Master Servicer may, and shall, if so
directed by Certificateholders evidencing more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates,
terminate all of the rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds thereof. If an
Event of Default described in clause (x) of this Section 6.14 shall occur,
then, in each and every case, subject to applicable law, the Trustee, by
notice in writing to the Master Servicer, shall promptly terminate all of
the rights and obligations of the Master Servicer hereunder and in and to
the Mortgage Loans and the proceeds thereof. On or after the receipt by
the Master Servicer of such written notice, all authority and power of the
Master Servicer, and only in its capacity as Master Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in the Trustee pursuant to and under the terms of
this Agreement; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting Master Servicer as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents or otherwise. The defaulting Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the
defaulting Master Servicer's responsibilities and rights hereunder as
Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the master servicing function and providing the Trustee or
its designee all documents and records in electronic or other form
reasonably requested by it to enable the Trustee or its designee to assume
the defaulting Master Servicer's functions hereunder and the transfer to
the Trustee for administration by it of all amounts which shall at the
time be or should have been deposited by the defaulting Master Servicer in
the Collection Account maintained by such defaulting Master Servicer and
any other account or fund maintained with respect to the Certificates or
thereafter received with respect to the Mortgage Loans. The Master
Servicer being terminated shall bear all costs of a master servicing
transfer, including but not limited to those of the Trustee reasonably
allocable to specific employees and overhead, legal fees and expenses,
accounting and financial consulting fees and expenses, and costs of
amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer, each
terminated Master Servicer shall continue to be entitled to reimbursement to
the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii),
(ix) and (xi) to the extent such reimbursement relates to the period prior to
such Master Servicer's termination.
If any Event of Default shall occur of which a Responsible Officer of the
Trustee has actual knowledge, the Trustee shall promptly notify the Certificate
Insurer and the Rating Agencies of the nature and extent of such Event of
Default. The Trustee shall immediately give written notice to the Master
Servicer upon such Master Servicer's failure to remit funds on the Deposit
Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the Master
Servicer in its capacity as such under this Agreement and the transactions set
forth or provided for herein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer hereunder, including the
obligation to make Advances; provided, however, that any failure to perform
such duties or responsibilities caused by the Master Servicer's failure to
provide information required by this Agreement shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
responsibility for any act or omission of the Master Servicer prior to the
issuance of any notice of termination and shall have no liability relating to
the representations and warranties of the Master Servicer set forth in Section
9.14. In the Trustee's capacity as such successor, the Trustee shall have the
same limitations on liability herein granted to the Master Servicer. As
compensation therefor, the Trustee shall be entitled to receive all
compensation payable to the Master Servicer under this Agreement, including the
Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and other
standards set forth herein for a successor master servicer, the Trustee, in its
individual capacity shall agree, at the time of such designation, to be and
remain liable to the Trust Fund for such Affiliate's actions and omissions in
performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Master Servicer hereunder. The Trustee and such successor
shall take such actions, consistent with this Agreement, as shall be necessary
to effectuate any such succession and may make other arrangements with respect
to the servicing to be conducted hereunder which are not inconsistent herewith.
The Master Servicer shall cooperate with the Trustee and any successor master
servicer in effecting the termination of the Master Servicer's responsibilities
and rights hereunder including, without limitation, notifying Mortgagors of the
assignment of the master servicing functions and providing the Trustee and
successor master servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume the
Master Servicer's functions hereunder and the transfer to the Trustee or such
successor master servicer, as applicable, all amounts which shall at the time
be or should have been deposited by the Master Servicer in the Collection
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received with respect to the Mortgage Loans.
Neither the Trustee nor any other successor master servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, (ii) the failure of the Master Servicer to
cooperate as required by this Agreement, (iii) the failure of the Master
Servicer to deliver the Mortgage Loan data to the Trustee as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default. During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an
express trust, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and
no delay or omission to exercise any right or remedy shall impair any such
right or remedy or shall be deemed to be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by
the Master Servicer in the performance of its obligations hereunder, except
that a default in the making of any required deposit to the Certificate Account
that would result in a failure of the Trustee to make any required payment of
principal of or interest on the Certificates may only be waived with the
consent of 100% of the affected Certificateholders. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
Section 6.17. Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Certificate Insurer and to the Certificateholders at their
respective addresses appearing on the Certificate Register. The Trustee shall
also, within 45 days after the occurrence of any Event of Default known to the
Trustee, give written notice thereof to Certificateholders, unless such Event
of Default shall have been cured or waived prior to the issuance of such notice
and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided, however, that the Trustee shall be under no obligation to pursue any
such remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (i) the conducting or defending of
any administrative action or litigation hereunder or in relation hereto and
(ii) the terminating of the Master Servicer or any successor master servicer
from its rights and duties as master servicer hereunder) at the request, order
or direction of any of the Certificateholders, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity against the
cost, expenses and liabilities which may be incurred therein or thereby; and,
provided further, that, subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee, in
accordance with an Opinion of Counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith
determines that the action or proceeding so directed would involve it in
personal liability or be unjustly prejudicial to the non-assenting
Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any action or inaction of the Master Servicer that would become an Event of
Default upon the Master Servicer's failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer.
Section 6.20. Preparation of Tax Returns and Other Reports. (a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based upon information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, and the Trustee shall file, federal tax
returns and appropriate state income tax returns and such other returns as may
be required by applicable law relating to the Trust Fund, and the Trustee shall
forward copies to the Depositor of all such returns and Form 1099 information
and such other information within the control of the Trustee as the Depositor
may reasonably request in writing, and shall forward to each Certificateholder
such forms and furnish such information within the control of the Trustee as
are required by the Code and the REMIC Provisions to be furnished to them, and
will prepare and file annual reports required by applicable state authorities,
will file copies of this Agreement with the appropriate state authorities as
may be required by applicable law, and will prepare and disseminate to
Certificateholders Form 1099 (or otherwise furnish information within the
control of the Trustee) to the extent required by applicable law. The Master
Servicer will indemnify the Trustee for any liability of or assessment against
the Trustee resulting from any error in any of such tax or information returns
directly resulting from errors in the information provided by such Master
Servicer (other than information that is derived solely from information
provided by a Servicer).
(b) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of the Trust Fund, an application on IRS Form SS-4.
The Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned, shall promptly forward a copy of such notice to the Master
Servicer and the Depositor.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K and thereafter the Trustee will prepare or cause to
be prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly current
reports on Form 8-K, on behalf of the Trust Fund, as may be required by
applicable law, for filing with the Securities and Exchange Commission (the
"SEC"), and the Trustee will sign each such report on behalf of the Trust. The
Trustee will forward a copy of each such report to the Depositor promptly after
such report has been filed with the SEC. The Trustee agrees to use its best
commercial efforts to seek to terminate such filing obligation after the period
during which such filings are required under the Securities Exchange Act of
1934. Promptly after filing a Form 15 or other applicable form with the SEC in
connection with such termination, the Trustee shall deliver to the Depositor a
copy of such form together with copies of confirmations of receipt by the SEC
of each report filed therewith on behalf of the Trust Fund.
ARTICLE VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of
All Mortgage Loans. (a) The respective obligations and responsibilities of the
Trustee and the Master Servicer created hereby (other than the obligation of
the Trustee to make payments to Certificateholders as set forth in Section
7.02, the obligation of the Master Servicer to make a final remittance to the
Trustee for deposit into the Certificate Account pursuant to Section 4.01 and
the obligations of the Master Servicer to the Trustee pursuant to Sections 9.10
and 9.14), shall terminate on the earlier of (i) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the sale of the property held by the
Trust Fund in accordance with Section 7.01(b); provided, however, that in no
event shall the Trust Fund created hereby continue beyond the earlier of (i)
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof, and (ii) the Latest
Possible Maturity Date. Any termination of the Trust Fund shall be carried out
in such a manner so that the termination of each REMIC included therein shall
qualify as a "qualified liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 10% of
the Cut-off Date Aggregate Principal Balance, the Depositor may, upon written
direction to the Trustee, cause (i) the Trustee to sell (or arrange for the
sale of) the assets of the Trust Fund and (ii) the Trust Fund to adopt a plan
of complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of
its property. The property of the Trust Fund shall be sold at a price (the
"Termination Price") equal to: (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date in
the Due Period immediately preceding the related Distribution Date to the date
of such repurchase, (ii) the fair market value of any REO Property and any
other property held by any REMIC, such fair market value to be determined by an
appraiser or appraisers appointed by the Master Servicer with the consent of
the Trustee, (iii) any unreimbursed Advances made by the Master Servicer, the
Servicer or the Trustee, including Servicing Advances, and (iv) any
Reimbursement Amounts due to the Certificate Insurer.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of any
termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
(x) no later than five Business Days after the Trustee has received notice from
the Depositor of its intent to exercise its right to cause the termination of
the Trust Fund pursuant to Section 7.01(b) or (y) upon the final payment or
other liquidation of the last Mortgage Loan or REO Property in the Trust Fund.
Such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 will be made upon presentation and
surrender of the Certificates at the Corporate Trust Office, and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Master Servicer and the Certificate
Registrar at the time such notice is given to Holders of the Certificates. Upon
any such termination, the duties of the Certificate Registrar with respect to
the Certificates shall terminate and the Trustee shall terminate, or request
the Master Servicer to terminate, the Collection Account it maintains, the
Certificate Account and any other account or fund maintained with respect to
the Certificates, subject to the Trustee's obligation hereunder to hold all
amounts payable to Certificateholders in trust without interest pending such
payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the remaining Certificateholders concerning surrender of such Certificates, and
the cost thereof shall be paid out of the amounts distributable to such
Holders. If within two years after the second notice any Certificates shall not
have been surrendered for cancellation, the Trustee shall, subject to
applicable state law relating to escheatment, hold all amounts distributable to
such Holders for the benefit of such Holders. No interest shall accrue on any
amount held by the Trustee and not distributed to a Certificateholder due to
such Certificateholder's failure to surrender its Certificate(s) for payment of
the final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection
with any termination or liquidation of the Trust Fund shall be paid from
proceeds received from the liquidation of the Trust Fund.
Section 7.03. Additional Trust Fund Termination Requirements. (a) The
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee seeks (at the request of the Master Servicer),
and subsequently receives, an Opinion of Counsel (at the expense of the Master
Servicer), addressed to the Trustee to the effect that the failure of the Trust
Fund to comply with the requirements of this Section 7.03 will not (i) result
in the imposition of taxes on any REMIC under the REMIC Provisions or (ii)
cause any REMIC established hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the Certificates, the Trustee (upon (x) the sale of the
property of the Trust Fund by the Trustee pursuant to Section 7.01(b) or
(y) notification by the Depositor that it intends to exercise its option
to cause the termination of the Trust Fund) shall adopt a plan of complete
liquidation of the Trust Fund on behalf of each REMIC, meeting the
requirements of a qualified liquidation under the REMIC Provisions;
(ii) The sale of the assets of the Trust Fund pursuant to Section
7.02 shall be a sale for cash and shall occur at or after the time of
adoption of such a plan of complete liquidation and prior to the time of
making of the final payment on the Certificates;
(iii) On the date specified for final payment of the Certificates,
the Trustee shall make final distributions of principal and interest on
the Certificates in accordance with Section 5.02 and distribute or credit,
or cause to be distributed or credited, to the Holder of the Residual
Certificate all cash on hand after such final payment (other than cash
retained to meet claims), and the Trust Fund (and each REMIC) shall
terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holder of the Residual Certificate be
made after the 89th day from the date on which the plan of complete
liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the related REMIC and (ii) agrees to
take such other action as may be necessary to adopt a plan of complete
liquidation of the related REMIC, which authorization shall be binding upon all
successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or incapacity
of any Certificateholder shall not operate to terminate this Agreement or this
Trust Fund, nor entitle such Certificateholder's legal representatives or heirs
to claim an accounting or take any action or proceeding in any court for a
partition or winding up of this Trust Fund, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them. Except as
otherwise expressly provided herein, no Certificateholder, solely by virtue of
its status as a Certificateholder, shall have any right to vote or in any
manner otherwise control the Master Servicer or the operation and management of
the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed
so as to constitute the Certificateholders from time to time as partners or
members of an association, nor shall any Certificateholder be under any
liability to any third person by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Class Notional Amount) of Certificates of each Class shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request has been given such Trustee
during such sixty-day period by such Certificateholders; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Agreement, except in the manner herein provided and for
the benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not acting
as Certificate Registrar, the Certificate Registrar will furnish or cause to be
furnished to the Trustee, within fifteen days after receipt by the Certificate
Registrar of a request by the Trustee in writing, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt
of such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held by the Trustee or shall, as an alternative, send, at the Applicants'
expense, the written communication proffered by the Applicants to all
Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders or Certificate Owner, if the
Holder is a Clearing Agency, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where expressly required herein,
to the Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee and
Master Servicer, if made in the manner provided in this Section. Each of the
Trustee and Master Servicer shall promptly notify the other of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Whenever such execution is by an officer of a corporation or a member
of a partnership on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the individual executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Trustee or the Master Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders, by
their purchase and acceptance of the Certificates, appoint Aurora Loan Services
Inc., as Master Servicer. For and on behalf of the Depositor, the Trustee and
the Certificateholders, the Master Servicer shall master service the Mortgage
Loans in accordance with the provisions of this Agreement and the provisions of
the applicable Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and
Omissions Insurance Policy. (a) The Master Servicer, at its expense, shall
maintain in effect a Fidelity Bond and an Errors and Omissions Insurance
Policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations
hereunder. The Errors and Omissions Insurance Policy and the Fidelity Bond
shall be in such form and amount that would meet the requirements of FNMA or
FHLMC if it were the purchaser of the Mortgage Loans. The Master Servicer shall
(i) require each Servicer to maintain an Errors and Omissions Insurance Policy
and a Fidelity Bond in accordance with the provisions of the applicable
Servicing Agreement, (ii) cause each Servicer to provide to the Master Servicer
certificates evidencing that such policy and bond is in effect and to furnish
to the Master Servicer any notice of cancellation, non-renewal or modification
of the policy or bond received by it, as and to the extent provided in the
applicable Servicing Agreement, and (iii) furnish copies of the certificates
and notices referred to in clause (ii) to the Trustee upon its request. The
Fidelity Bond and Errors and Omissions Insurance Policy may be obtained and
maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve funds
relating to the Mortgage Loans. The total losses, regardless of whether claims
are filed with the applicable insurer or surety, shall be disclosed in such
reports together with the amount of such losses covered by insurance. If a bond
or insurance claim report is filed with any of such bonding companies or
insurers, the Master Servicer shall promptly furnish a copy of such report to
the Trustee. Any amounts relating to the Mortgage Loans collected by the Master
Servicer under any such bond or policy shall be promptly remitted by the Master
Servicer to the Trustee for deposit into the Certificate Account. Any amounts
relating to the Mortgage Loans collected by any Servicer under any such bond or
policy shall be remitted to the Master Servicer to the extent provided in the
applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of its
annual unaudited financial statements on or prior to May 31 of each year. Such
financial statements shall include a balance sheet, income statement, statement
of retained earnings, statement of additional paid-in capital, statement of
changes in financial position and all related notes and schedules and shall be
in comparative form, certified by a nationally recognized firm of Independent
Accountants to the effect that such statements were examined and prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures. (a) The Master Servicer shall
master service the Mortgage Loans and shall have full power and authority,
subject to the REMIC Provisions and the provisions of Article X hereof, and
each Servicer shall have full power and authority (to the extent provided in
the applicable Servicing Agreement) to do any and all things that it may deem
necessary or desirable in connection with the servicing and administration of
the Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable; provided that the Master Servicer shall not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee and
the Certificateholders under this Agreement. The Master Servicer shall
represent and protect the interests of the Trust Fund in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan and shall not make or permit
any Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause the Trust Fund to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d) of
the Code. Without limiting the generality of the foregoing, the Master Servicer
in its own name or in the name of a Servicer, and each Servicer, to the extent
such authority is delegated to such Servicer by the Master Servicer under the
applicable Servicing Agreement, is hereby authorized and empowered by the
Trustee when the Master Servicer or a Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, to execute and deliver, on
behalf of itself and the Certificateholders, the Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties. The Trustee shall
furnish the Master Servicer, upon request, with any powers of attorney
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, necessary or appropriate
to enable the Master Servicer to master service and administer the Mortgage
Loans and carry out its duties hereunder, in each case in accordance with
Accepted Servicing Practices (and the Trustee shall have no liability for
misuse of any such powers of attorney by the Master Servicer or any Servicer).
If the Master Servicer or the Trustee has been advised that it is likely that
the laws of the state in which action is to be taken prohibit such action if
taken in the name of the Trustee or that the Trustee would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name, then upon request of the Trustee, the Master Servicer shall
join with the Trustee in the appointment of a co-trustee pursuant to Section
6.09 hereof. In the performance of its duties hereunder, the Master Servicer
shall be an independent contractor and shall not, except in those instances
where it is taking action in the name of the Trustee, be deemed to be the agent
of the Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that the maturity of any Mortgage
Loan shall not be extended past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
extension described in clause (ii) above, the Master Servicer shall make or
cause to be made Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master Servicer
shall not, unless default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer, imminent, permit any modification, waiver or
amendment of any material term of any Mortgage Loan (including but not limited
to the interest rate, the principal balance, the amortization schedule, or any
other term affecting the amount or timing of payments on the Mortgage Loan or
the collateral therefor) unless the Master Servicer shall have provided or
caused to be provided to the Trustee an Opinion of Counsel in writing to the
effect that such modification, waiver or amendment would not be treated as
giving rise to a new debt instrument for federal income tax purposes and would
not adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations. (a) Each Servicing Agreement
requires the applicable Servicer to service the Mortgage Loans in accordance
with the provisions thereof. References in this Agreement to actions taken or
to be taken by the Master Servicer include actions taken or to be taken by a
Servicer on behalf of the Master Servicer. Any fees and other amounts payable
to such Servicers shall be deducted from amounts remitted to the Master
Servicer by the applicable Servicer and shall not be an obligation of the
Trust.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
terminate the rights and obligations of such Servicer thereunder and either act
as servicer of the related Mortgage Loans or enter into a Servicing Agreement
with a successor Servicer. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of 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 Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its own
expense, and shall be reimbursed therefor initially 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 Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys' fees against the
party against whom such enforcement is directed, and then, to the extent that
such amounts are insufficient to reimburse the Master Servicer for the costs of
such enforcement, (iii) from the Collection Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. (a) To
the extent provided in the applicable Servicing Agreement, the Master Servicer
shall cause each Servicer to establish and maintain one or more custodial
accounts at a depository institution (which may be a depository institution
with which the Master Servicer or any Servicer establishes accounts in the
ordinary course of its servicing activities), the accounts of which are insured
to the maximum extent permitted by the FDIC (each, an "Escrow Account") and
shall deposit therein any collections of amounts received with respect to
amounts due for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been escrowed for such purpose) only in accordance with the applicable
Servicing Agreement. Each Servicer shall be entitled to all investment income
not required to be paid to Mortgagors on any Escrow Account maintained by such
Servicer. The Master Servicer shall make (or cause to be made) to the extent
provided in the applicable Servicing Agreement advances to the extent necessary
in order to effect timely payment of taxes, water rates, assessments, Standard
Hazard Insurance Policy premiums or comparable items in connection with the
related Mortgage Loan (to the extent that the Mortgagor is required, but fails,
to pay such items), provided that it has determined that the funds so advanced
are recoverable from escrow payments, reimbursement pursuant to Section 4.02(v)
or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties subject
to the Mortgage Loans may be added to the amount owing under the related
Mortgage Note where the terms of the Mortgage Note so permit; provided,
however, that the addition of any such cost shall not be taken into account for
purposes of calculating the distributions to be made to Certificateholders.
Such costs, to the extent that they are unanticipated, extraordinary costs, and
not ordinary or routine costs shall be recoverable by the Master Servicer
pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor Servicers.
(a) The Master Servicer shall be entitled to terminate the rights and
obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in
the event of termination of any Servicing Agreement by the Master Servicer or
the related Servicer, the Master Servicer shall either act as Servicer of the
related Mortgage Loans, or enter into a Servicing Agreement with a successor
Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties made
by the terminated Servicer in respect of the related Mortgage Loans, and in the
event of any such assumption by the successor Servicer, the Trustee or the
Master Servicer, as applicable, may, in the exercise of its business judgment,
release the terminated Servicer from liability for such representations and
warranties.
Section 9.08. Master Servicer Liable for Enforcement. Notwithstanding any
Servicing Agreement, the Master Servicer shall remain obligated and liable to
the Trustee and the Certificateholders in accordance with the provisions of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements or
arrangements. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall have no liability for the acts or omissions of any Servicer in the
performance by such Servicer of its obligations under the related Servicing
Agreement.
Section 9.09. No Contractual Relationship Between Servicers and Trustee or
Depositor. Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer in
its capacity as such and not as an originator shall be deemed to be between
such Servicer, the Seller and the Master Servicer, and the Trustee and the
Depositor shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to such Servicer except as set
forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. (a) In the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), the Trustee
shall thereupon assume all of the rights and obligations of such Master
Servicer hereunder and under each Servicing Agreement entered into with respect
to the Mortgage Loans. The Trustee, its designee or any successor master
servicer appointed by the Trustee shall be deemed to have assumed all of the
Master Servicer's interest herein and therein to the same extent as if such
Servicing Agreement had been assigned to the assuming party, except that the
Master Servicer shall not thereby be relieved of any liability or obligations
of the Master Servicer under such Servicing Agreement accruing prior to its
replacement as Master Servicer, and shall be liable to the Trustee, and hereby
agrees to indemnify and hold harmless the Trustee from and against all costs,
damages, expenses and liabilities (including reasonable attorneys' fees)
incurred by the Trustee as a result of such liability or obligations of the
Master Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder; provided that
the Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or wrongful acts or omissions of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 9.12. Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer of
a notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
the Master Servicer will, or will cause the applicable Servicer to, promptly
notify the Trustee (or the applicable Custodian) by a certification (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Collection Account maintained by the Master Servicer pursuant to Section 4.01
have been or will be so deposited) of a Servicing Officer and shall request the
Trustee or the applicable Custodian, to deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Trustee or the applicable Custodian (with the consent, and at the direction of
the Trustee), shall promptly release the related Mortgage File to the
applicable Servicer and the Trustee shall have no further responsibility with
regard to such Mortgage File. Upon any such payment in full, the Master
Servicer is authorized, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is authorized, to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, the Trustee shall execute
such documents as shall be prepared and furnished to the Trustee by the Master
Servicer, or by a Servicer (in form reasonably acceptable to the Trustee) and
as are necessary to the prosecution of any such proceedings. The Trustee or the
Custodian, shall, upon request of the Master Servicer, or of a Servicer, and
delivery to the Trustee or the applicable Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form of Exhibit C, release the
related Mortgage File held in its possession or control to the Master Servicer
(or the applicable Servicer). Such trust receipt shall obligate the Master
Servicer or applicable Servicer to return the Mortgage File to the Trustee or
Custodian, as applicable, when the need therefor by the Master Servicer or
applicable Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that herein above specified, the trust receipt shall be released by
the Trustee or the Custodian, as applicable, to the Master Servicer (or the
applicable Servicer).
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The Master Servicer shall transmit, or
cause the applicable Servicer to transmit, to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer or
by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or withdraw
from the Collection Account the Master Servicing Fee and other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee as provided in the applicable Servicing Agreement. The Master Servicer
shall, and shall (to the extent provided in the applicable Servicing Agreement)
cause each Servicer to, provide access to information and documentation
regarding the Mortgage Loans to the Trustee, its agents and accountants at any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory
agents and examiners of such Office and Corporation or examiners of any other
federal or state banking or insurance regulatory authority if so required by
applicable regulations of the Office of Thrift Supervision or other regulatory
authority, such access to be afforded without charge but only upon reasonable
request in writing and during normal business hours at the offices of the
Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by any Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that a
court of competent jurisdiction shall deem the conveyance of the Mortgage Loans
from the Seller to the Depositor not to constitute a sale, the Trustee shall
have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
any Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a
Servicer is entitled under its Servicing Agreement, or the Master Servicer or
the Depositor is entitled to hereunder); and the Master Servicer agrees that so
long as the Mortgage Loans are assigned to and held by the Trustee, all
documents or instruments constituting part of the Mortgage Files, and such
funds relating to the Mortgage Loans which come into the possession or custody
of, or which are subject to the control of, the Master Servicer or any Servicer
shall be held by the Master Servicer or such Servicer for and on behalf of the
Trustee as the Trustee's agent and bailee for purposes of perfecting the
Trustee's security interest therein as provided by the applicable Uniform
Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or
payable to the Trustee, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Mortgage Loan or any funds
collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer. (a)
The Master Servicer hereby represents and warrants to the Depositor and the
Trustee, for the benefit of the Certificateholders and the Certificate Insurer,
as of the Closing Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement
and to execute, deliver and comply with its obligations under the terms of
this Agreement, the execution, delivery and performance of which have been
duly authorized by all necessary corporate action on the part of the
Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is an FNMA- and FHLMC-approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer;
and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02, each
of which is in full force and effect, and each of which provides at least
such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer's
representations and warranties contained in Section 9.14(a). Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). It is understood and
agreed that the enforcement of the obligation of the Master Servicer set forth
in this Section to indemnify the Depositor and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14)
of the Depositor and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising out
of the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by either the Depositor, the Master
Servicer, the Trustee or the Certificate Insurer or notice thereof by any one
of such parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the Depositor's
representations and warranties contained in Sections 2.03(a) through (f)
hereof. It is understood and agreed that the enforcement of the obligation of
the Depositor set forth in this Section to indemnify the Master Servicer as
provided in this Section constitutes the sole remedy of the Master Servicer
respecting a breach by the Depositor of the representations and warranties in
Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out of
the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. On or before the Closing
Date, the Master Servicer shall cause to be delivered to the Depositor and
Lehman Brothers Inc. an Opinion of Counsel, dated the Closing Date, in form and
substance reasonably satisfactory to the Depositor and Lehman Brothers Inc., as
to the due authorization, execution and delivery of this Agreement by the
Master Servicer and the enforceability thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan, the Master Servicer shall maintain, or cause to be maintained by
each Servicer, standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility requirements
set forth in the applicable Servicing Agreement and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained on
property acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master Servicer, or
by any Servicer, under any insurance policies maintained pursuant to this
Section 9.16 (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or released to the Mortgagor in
accordance with the applicable Servicing Agreement) shall be deposited into the
Collection Account, subject to withdrawal pursuant to Section 4.02. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to the amount owing under the Mortgage Loan where the terms of the Mortgage
Loan so permit; provided, however, that the addition of any such cost shall not
be taken into account for purposes of calculating the distributions to be made
to Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. The Master
Servicer shall, or shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies with
respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition requisite to the presentation of claims on
the related Mortgage Loan to the insurer under any applicable Insurance Policy
need not be so deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies. (a)
The Master Servicer shall not take, or permit any Servicer (consistent with the
applicable Servicing Agreement) to take, any action that would result in
non-coverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of such Master Servicer or Servicer, would have been
covered thereunder. The Master Servicer shall use its best reasonable efforts
to keep in force and effect, or to cause each Servicer to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder except in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies
and Documents. The Trustee (or its custodian, if any, as directed by the
Trustee), shall retain possession and custody of the originals of the Primary
Mortgage Insurance Policies or certificate of insurance if applicable and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect
of the Certificates have been distributed in full and the Master Servicer
otherwise has fulfilled its obligations under this Agreement, the Trustee (or
its custodian, if any, as directed by the Trustee) shall also retain possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Trustee (or its custodian, if any, as directed by
the Trustee), upon the execution or receipt thereof the originals of the
Primary Mortgage Insurance Policies and any certificates of renewal thereof,
and such other documents or instruments that constitute portions of the
Mortgage File that come into the possession of the Master Servicer from time to
time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall use its reasonable best efforts to, or to cause each Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, all in accordance with the applicable
Servicing Agreement.
Section 9.21. Compensation to the Master Servicer. The Master Servicer
shall (i) be entitled, at its election, either (a) to pay itself the Master
Servicing Fee, as reduced pursuant to Section 5.05, in respect of the Mortgage
Loans out of any Mortgagor payment on account of interest prior to the deposit
of such payment in the Collection Account it maintains or (b) to withdraw from
the Collection Account, subject to Section 5.05, the Master Servicing Fee to
the extent permitted by Section 4.02(iv). The Master Servicer shall also be
entitled, at its election, either (a) to pay itself the Master Servicing Fee in
respect of each delinquent Mortgage Loan master serviced by it out of
Liquidation Proceeds in respect of such Mortgage Loan or other recoveries with
respect thereto to the extent permitted in Section 4.02 or (b) to withdraw from
the Collection Account it maintains the Master Servicing Fee in respect of each
Liquidated Mortgage Loan to the extent of such Liquidation Proceeds or other
recoveries, to the extent permitted by Section 4.02. Servicing compensation in
the form of assumption fees, if any, late payment charges, as collected, if
any, or otherwise (including any Prepayment Penalty Amount) shall be retained
by the Master Servicer (or the applicable Servicer) and shall not be deposited
in the Collection Account. If the Master Servicer does not retain or withdraw
the Master Servicing Fee from the Collection Account as provided herein, the
Master Servicer shall be entitled to direct the Trustee to pay the Master
Servicing Fee to such Master Servicer by withdrawal from the Certificate
Account to the extent that payments have been received with respect to the
applicable Mortgage Loan. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this Agreement.
Pursuant to Section 4.01(e), all income and gain realized from any investment
of funds in the Collection Account shall be for the benefit of the Master
Servicer as additional compensation. The provisions of this Section 9.21 are
subject to the provisions of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Master Servicer shall use its reasonable
best efforts to sell, or, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all events
within the time period, and subject to the conditions set forth in Article X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by the
applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from any Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed Advances
as well as any unpaid Master Servicing Fees or Servicing Fees may be reimbursed
or paid, as the case may be, prior to final disposition, out of any net rental
income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable Servicer
as provided above, shall be deposited in the Collection Account on or prior to
the Determination Date in the month following receipt thereof (and the Master
Servicer shall provide prompt written notice to the Trustee upon such deposit)
and be remitted by wire transfer in immediately available funds to the Trustee
for deposit into the Certificate Account on the next succeeding Deposit Date.
Section 9.23. [Omitted]
Section 9.24. Reports to the Trustee. (a) Not later than 30 days after
each Distribution Date, the Master Servicer shall forward to the Trustee a
statement, deemed to have been certified by a Servicing Officer, setting forth
the status of the Collection Account maintained by the Master Servicer as of
the close of business on the related Distribution Date, indicating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or if any required distribution has not been made by the Master
Servicer, specifying the nature and status thereof) and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Collection Account maintained by the Master Servicer. Copies of such
statement shall be provided by the Master Servicer to the Depositor, Attention:
Contract Finance, and, upon request, any Certificateholders (or by the Trustee
at the Master Servicer's expense if the Master Servicer shall fail to provide
such copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee, the Rating Agencies and the
Certificate Insurer on or before May 31 of each year, commencing on May 31,
2000, an Officer's Certificate, certifying that with respect to the period
ending on the immediately preceding December 31; (i) such Servicing Officer has
reviewed the activities of such Master Servicer during the preceding calendar
year or portion thereof and its performance under this Agreement; (ii) to the
best of such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come to
the attention of such Servicing Officer to lead such Servicing Officer to
believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all material
respects throughout such year, or, if there has been a material default in the
performance or fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, and (iv) the Master Servicer has received from each Servicer
such Servicer's annual certificate of compliance and a copy of such Servicer's
annual audit report, in each case to the extent required under the applicable
Servicing Agreement, or, if any such certificate or report has not been
received by the Master Servicer, the Master Servicer is using its best
reasonable efforts to obtain such certificate or report.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. If the
Master Servicer has, during the course of any fiscal year, directly serviced
any of the Mortgage Loans, then the Master Servicer at its expense shall cause
a nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Certificate Insurer, the Rating
Agencies and the Depositor on or before May 31 of each year, commencing on May
31, 2000, to the effect that, with respect to the most recently ended fiscal
year, such firm has examined certain records and documents relating to the
Master Servicer's performance of its servicing obligations under this Agreement
and pooling and servicing and trust agreements in material respects similar to
this Agreement and to each other and that, on the basis of such examination
conducted substantially in compliance with the audit program for mortgages
serviced for FHLMC or the Uniform Single Attestation Program for Mortgage
Bankers, such firm is of the opinion that the Master Servicer's activities have
been conducted in compliance with this Agreement, or that such examination has
disclosed no material items of noncompliance except for (i) such exceptions as
such firm believes to be immaterial, (ii) such other exceptions as are set
forth in such statement and (iii) such exceptions that the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
Serviced by FHLMC requires it to report. Copies of such statements shall be
provided to any Certificateholder upon request by the Master Servicer, or by
the Trustee at the expense of the Master Servicer if the Master Servicer shall
fail to provide such copies. If such report discloses exceptions that are
material, the Master Servicer shall advise the Trustee whether such exceptions
have been or are susceptible of cure, and will take prompt action to do so.
Section 9.27. Merger or Consolidation. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall be a Person that shall be qualified and approved to service
mortgage loans for FNMA or FHLMC and shall have a net worth of not less than
$15,000,000.
Section 9.28. Resignation of Master Servicer. Except as otherwise provided
in Sections 9.27 and 9.29 hereof, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it unless it or the Trustee determines
that the Master Servicer's duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be Independent to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee shall
have assumed, or a successor master servicer shall have been appointed by the
Trustee and until such successor shall have assumed, the Master Servicer's
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer to the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by the Master Servicer hereunder; provided, however, that the Master Servicer
shall have the right without the prior written consent of the Trustee, the
Depositor or the Rating Agencies to delegate or assign to or subcontract with
or authorize or appoint an Affiliate of the Master Servicer to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Master Servicer hereunder. In no case, however, shall any such
delegation, subcontracting or assignment to an Affiliate of the Master Servicer
relieve the Master Servicer of any liability hereunder. Notice of such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties of
the Master Servicer are transferred to a successor master servicer, the entire
amount of the Master Servicing Fees and other compensation payable to the
Master Servicer pursuant hereto, including amounts payable to or permitted to
be retained or withdrawn by the Master Servicer pursuant to Section 9.21
hereof, shall thereafter be payable to such successor master servicer.
Section 9.30. Limitation on Liability of the Master Servicer and Others.
Neither the Master Servicer nor any of the directors, officers, employees or
agents of the Master Servicer shall be under any liability to the Trustee or
the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Master
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties to master service the Mortgage Loans in
accordance with this Agreement and that in its opinion may involve it in any
expenses or liability; provided, however, that the Master Servicer may in its
sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 4.02.
The Master Servicer shall not be liable for any acts or omissions of any
Servicer appointed with due care. In particular, the Master Servicer shall not
be liable for any servicing errors or interruptions resulting from any failure
of any Servicer to maintain computer and other information systems that are
year-2000 compliant.
Section 9.31. Indemnification; Third-Party Claims. The Master Servicer
agrees to indemnify the Depositor and the Trustee, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liability, fees and expenses
that the Depositor and the Trustee may sustain as a result of the failure of
the Master Servicer to perform its duties and master service the Mortgage Loans
in compliance with the terms of this Agreement. The Depositor and the Trustee
shall immediately notify the Master Servicer if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling the
Depositor or the Trustee to indemnification hereunder, whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) As set forth in the Preliminary
Statement hereto, the Trustee shall elect REMIC status in accordance with the
REMIC Provisions with respect to each of the Lower Tier REMIC and the Upper
Tier REMIC. The Trustee shall make such elections on Forms 1066 or other
appropriate federal tax or information return for the taxable year ending on
the last day of the calendar year in which the Certificates are issued. For the
purposes of such elections, each Lower Tier Interest, other than the Class LTR
Interest, is hereby designated as a regular interest in the Lower Tier REMIC,
and each Certificate, other than the Class R Certificate, is hereby designated
as a regular interest in the Upper Tier REMIC. The Class LTR Interest is hereby
designated as the sole residual interest in the Lower Tier REMIC. The Class R
Certificate evidences ownership of the Class LTR Interest and is also hereby
designated as the sole residual interest in the Upper Tier REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such expenses
are ordinary or routine expenses, including expenses of a routine audit but not
expenses of litigation (except as described in (ii)); or (ii) such expenses or
liabilities (including taxes and penalties) are attributable to the negligence
or willful misconduct of the Trustee in fulfilling its duties hereunder
(including its duties as tax return preparer). The Trustee shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Certificate Account.
(d) The Trustee shall prepare, sign and file, all of each REMIC's
federal and state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Trustee.
(e) The Trustee or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
each REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates
shall take any action or cause each REMIC to take any action necessary to
create or maintain the status of such REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Master Servicer nor the Holder of any Residual
Certificate shall take any action, cause any REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of such REMIC as a REMIC or (ii) result in the imposition of a tax upon
such REMIC (including but not limited to the tax on prohibited transactions as
defined in Code Section 860F(a)(2) and the tax on prohibited contributions set
forth on Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee and the Master Servicer have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. In addition, prior to taking any action with respect
to any REMIC or the assets therein, or causing such REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, any Holder
of a Residual Certificate will consult with the Trustee and the Master
Servicer, or their respective designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to such
REMIC, and no such Person shall take any such action or cause such REMIC to
take any such action as to which the Trustee or the Master Servicer has advised
it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Residual
Certificate in such REMIC or, if no such amounts are available, out of other
amounts held in the Collection Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may be.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) Upon the request of any Rating Agency, the Trustee shall deliver
to such Rating Agency an Officer's Certificate stating the Trustee's compliance
with the provisions of this Section 10.01.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in the
Certificate Account for gain, nor accept any contributions to any REMIC after
the Closing Date, unless it has received an Opinion of Counsel (at the expense
of the party causing such sale, disposition, or substitution) that such
disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other than
the Residual Certificates as the regular interests therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause such REMIC to be
subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC Status. (a) In the event that a REMIC fails to qualify as a REMIC, loses
its status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due to the negligent performance by the Trustee of its duties and obligations
set forth herein, the Trustee shall indemnify the Holder of the Residual
Certificate against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that the
Trustee shall not be liable for any such Losses attributable to the action or
inaction of the Master Servicer, the Depositor, or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which the
Trustee has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee have any liability (1) for any action or omission that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2) for any
Losses other than arising out of a negligent performance by the Trustee of its
duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders (in addition to payment of
principal and interest on the Certificates).
Section 10.04. REO Property. (a) Notwithstanding any other provision of
this Agreement, the Master Servicer, acting on behalf of the Trustee hereunder,
shall not, and shall, to the extent provided in the applicable Servicing
Agreement, not permit any Servicer to, rent, lease, or otherwise earn income on
behalf of any REMIC with respect to any REO Property which might cause such REO
Property to fail to qualify as "foreclosure" property within the meaning of
section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
"income from non-permitted assets" within the meaning of section 860F(a)(2) of
the Code or any "net income from foreclosure property" which is subject to tax
under the REMIC Provisions unless the Master Servicer has advised, or has
caused the applicable Servicer to advise, the Trustee in writing to the effect
that, under the REMIC Provisions, such action would not adversely affect the
status of the REMIC as a REMIC and any income generated for such REMIC by the
REO Property would not result in the imposition of a tax upon such REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the applicable Servicer to, dispose of any REO Property within three years from
the end of the calendar year of its acquisition by the Trust Fund unless the
Trustee has received a grant of extension from the Internal Revenue Service to
the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the REMIC may hold REO Property for
a longer period without adversely affecting the REMIC status of such REMIC or
causing the imposition of a Federal or state tax upon such REMIC. If the
Trustee has received such an extension, then the Trustee, or the Master
Servicer, acting on its behalf hereunder, shall, or shall cause the applicable
Servicer to, continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension permits (the
"Extended Period"). If the Trustee has not received such an extension and the
Trustee, or the Master Servicer acting on behalf of the Trustee hereunder, or
the applicable Servicer is unable to sell the REO Property within 33 months
after its acquisition by the Trust Fund or if the Trustee has received such an
extension, and the Trustee, or the Master Servicer acting on behalf of the
Trustee hereunder, is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Master Servicer
shall, or shall cause the applicable Servicer to, before the end of the three
year period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Master
Servicer) in an auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended Period, as the case may
be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time to
time by the Depositor, the Master Servicer and the Trustee, without notice to
or the consent of any of the Holders, (i) to cure any ambiguity, (ii) to cause
the provisions herein to conform to or be consistent with or in furtherance of
the statements made with respect to the Certificates, the Trust Fund or this
Agreement in any Offering Document; or to correct or supplement any provision
herein which may be inconsistent with any other provisions herein, (iii) to
make any other provisions with respect to matters or questions arising under
this Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code and
the REMIC Provisions. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel, adversely affect the
status of any REMIC created pursuant to this Agreement, nor shall such
amendment effected pursuant to clause (iii) of such sentence adversely affect
in any material respect the interests of any Holder (without regard to either
Certificate Insurance Policy). Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel (at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder, if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce the then
current rating assigned to the Certificates (in the case of the Class A3 and A4
Certificates, determined without regard to the applicable Certificate Insurance
Policy) (and any Opinion of Counsel requested by the Trustee in connection with
any such amendment may rely expressly on such confirmation as the basis
therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment shall be made unless the Trustee
receives an Opinion of Counsel, at the expense of the party requesting the
change, that such change will not adversely affect the status of any REMIC as a
REMIC or cause a tax to be imposed on such REMIC; and provided further, that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent of all
affected Certificateholders is required pursuant to this Agreement, with
respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Notional Amount), Certificates owned by the
Depositor, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof.
Section 11.05. Provision of Information. (a) For so long as any of the
Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such Certificateholder,
upon the request of such Certificateholder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser to
satisfy the condition set forth in Rule 144A(d)(4) under the Act. Any
reasonable, out-of-pocket expenses incurred by the Trustee in providing such
information shall be reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or documents
requested, (i) a copy (excluding exhibits) of any report on Form 8-K or Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c) and (ii) a copy of any other document incorporated by reference in the
Prospectus. Any reasonable out-of-pocket expenses incurred by the Trustee in
providing copies of such documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to the Depositor, Attention: Contract Finance,
a copy of the report delivered to Certificateholders pursuant to Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received
by (a) in the case of the Depositor, Structured Asset Securities Corporation,
200 Vesey Street, 12th Floor, New York, New York 10285, Attention: Mark Zusy,
(b) in the case of the Trustee, The Chase Manhattan Bank, 450 West 33rd Street,
14th Floor, New York, New York 10001-2697, Attention: Capital Markets Fiduciary
Services, (c) in the case of the Master Servicer, Aurora Loan Services Inc.,
2530 South Parker Road, Suite 601, Aurora, Colorado 80014; Attention: Master
Servicing, or (d) in the case of the Certificate Insurer, MBIA Insurance
Corporation, 113 King Street, Armonk, New York 10504, Attention: Insured
Portfolio Management - Structured Finance (IMP-SF), Structured Asset Securities
Corporation Mortgage Pass Through Certificates, Series 1999-ALS2 or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted
such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. (a) Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement, except to the extent specified in Section 11.14.
Section 11.12. Special Notices to the Rating Agencies. (a) The Depositor
shall give prompt notice to the Rating Agencies of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights hereunder or
delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer pursuant
to Section 6.14 and any resignation of the Master Servicer hereunder;
(v) the appointment of any successor to any Master Servicer pursuant
to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to DCR, to:
Duff & Phelps Credit Rating Co.
55 East Monroe Street
38th Floor
Chicago, Illinois 60603
Attention: Residential
MBS/SASCO 1999-ALS2
If to S&P, to:
Standard & Poor's Rating Services
25 Broadway, 12th Floor
New York, New York 10004
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agencies reports prepared
pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Seller agrees that it shall
provide written notice to the Trustee, the Master Servicer and the Certificate
Insurer thirty days prior to any transfer or assignment by the Seller of its
rights under any Servicing Agreement or of the servicing thereunder or
delegation of its rights or duties thereunder or any portion thereof to any
Person other than the initial Servicer under such Servicing Agreement. In
addition, the ability of the Seller to transfer or assign its rights and
delegate its duties under any Servicing Agreement or to transfer the servicing
thereunder to a successor servicer shall be subject to the following
conditions:
(i) Such successor servicer must be qualified to service loans for
FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement, exclusive of
any experience in mortgage loan origination, and must be reasonably
acceptable to the Master Servicer, whose approval shall not be
unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the Trustee
and the Master Servicer an agreement, in form and substance reasonably
satisfactory to the Trustee and the Master Servicer, that contains an
assumption by such successor servicer of the due and punctual performance
and observance of each covenant and condition to be performed and observed
by the Servicer under the applicable Servicing Agreement;
(iv) There must be delivered to the Trustee a letter from each Rating
Agency to the effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of any
of the Certificates (determined without regard to the related Certificate
Insurance Policy, in the case of the Class A3 and Class A4 Certificates);
(v) The Seller shall, at its cost and expense, take such steps, or
cause the terminated Servicer to take such steps, as may be necessary or
appropriate to effectuate and evidence the transfer of the servicing of
the Mortgage Loans to such successor servicer, including, but not limited
to, the following: (A) to the extent required by the terms of the Mortgage
Loans and by applicable federal and state laws and regulations, the Seller
shall cause the prior Servicer to timely mail to each obligor under a
Mortgage Loan any required notices or disclosures describing the transfer
of servicing of the Mortgage Loans to the successor servicer; (B) prior to
the effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to transmit to any related insurer notification of such
transfer of servicing; (C) on or prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and any
related records or materials; (D) on or prior to the effective date of
such transfer of servicing, the Seller shall cause the prior Servicer to
transfer to the successor servicer, or, if such transfer occurs after a
Remittance Date but before the next succeeding Deposit Date, to the Master
Servicer, all funds held by the Servicer in respect of the Mortgage Loans;
(E) on or prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to, after the effective date of the
transfer of servicing to the successor servicer, continue to forward to
such successor servicer, within one Business Day of receipt, the amount of
any payments or other recoveries received by the prior Servicer, and to
notify the successor servicer of the source and proper application of each
such payment or recovery; and (F) the Seller shall cause the prior
Servicer to, after the effective date of transfer of servicing to the
successor servicer, continue to cooperate with the successor servicer to
facilitate such transfer in such manner and to such extent as the
successor servicer may reasonably request.
Section 11.15. Matters Relating to the Certificate Insurance Policies. (a)
All notices, statements, reports, certificates or opinions required by this
Agreement to be sent to any other party hereto or to the Class A3 or Class A4
Certificateholders shall also be sent, and any report or statement sent by the
Master Servicer to the Trustee shall be sent by the Trustee, to the Certificate
Insurer at the following address:
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio Management - Structured Finance
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1999-ALS2, Class A3 and Class A4 Certificates
or such other address as the Certificate Insurer may hereafter furnish to the
Depositor and the Trustee.
(b) Notwithstanding any provision to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the interest of
such parties as set forth herein, the Certificate Insurer receive the benefit
of Sections 4.03, 5.02, 5.07 and 11.15 as an intended third party beneficiary
of this Agreement to the extent of such provisions.
(c) No purchase of the property of the Trust Fund pursuant to Section
7.01(b) shall occur if such purchase would result in a draw on either the Class
A3 Certificate Insurance Policy or Class A4 Certificate Insurance Policy,
unless the Certificate Insurer has consented to such purchase.
(d) All references herein to the rating of the Certificates shall be
without regard to applicable Certificate Insurance Policy.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer
have caused their names to be signed hereto by their respective officers
hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Stanley Labanowski
-------------------------------
Name: Stanley Labanowski
Title: Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Kimberly K. Costa
-------------------------------
Name: Kimberly K. Costa
Title: Assistant Vice President
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ Rick W. Skogg
-------------------------------
Name: Rick W. Skogg
Title: President
Solely for purposes of Section 11.14,
accepted and agreed to by:
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Joseph J. Kelly
-----------------------------
Name: Joseph J. Kelly
Title: Authorized Signatory
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATES
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
_____________
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of May 1, 1999
among Structured Asset Securities Corporation, as Depositor, The
Chase Manhattan Bank, as Trustee, and Aurora Loan Services Inc., as
Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1999-ALS2
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Custodian on behalf of the
Trustee, hereby certifies that it (or its custodian) has received the documents
listed in Section 2.01(b) of the Trust Agreement for each Mortgage File
pertaining to each Mortgage Loan listed on Schedule A, to the Trust Agreement,
subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Trust Agreement.
This Certificate is subject in all respects to the terms of Section 2.02 of the
Trust Agreement and the Trust Agreement sections cross-referenced therein.
[Custodian], on behalf of
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________________
Name:
Title:
<PAGE>
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
______________
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of May 1, 1999
among Structured Asset Securities Corporation, as Depositor, The
Chase Manhattan Bank, as Trustee, and Aurora Loan Services Inc., as
Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1999-ALS2
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I hereto, it has reviewed the documents identified above and has determined
that each such document appears regular on its face and appears to relate to
the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement including, but not limited
to, Section 2.02(b).
[Custodian], on behalf of
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________________
Name:
Title:
<PAGE>
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
______________
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of May 1, 1999
among Structured Asset Securities Corporation, as Depositor, The
Chase Manhattan Bank, as Trustee, and Aurora Loan Services Inc., as
Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1999-ALS2
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I hereto, it has reviewed the documents listed above and has determined that
each such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement.
[Custodian], on behalf of
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________________
Name:
Title:
<PAGE>
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of The Chase Manhattan Bank, as trustee (the "Trustee")
under the Trust Agreement dated as of May 1, 1999, among Structured Asset
Securities Corporation, as Depositor, the Trustee and the Master Servicer
relating to Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1999-ALS2, without recourse.
__________________________________
[current signatory on note]
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
______________
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of May 1, 1999 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, and you, as Trustee (the "Trust Agreement"), the
undersigned Master Servicer hereby requests a release of the Mortgage File held
by you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies that
the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased or
substituted for a Qualifying Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us permanently) and except if the Mortgage
Loan is being foreclosed (in which case the Mortgage File will be returned when
no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in
the Trust Agreement.
__________________________________
[Name of Master Servicer]
By:_______________________________
Name:
Title: Servicing Officer
<PAGE>
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________ of [name
of Purchaser] _________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ______________.
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not acquiring
a Residual Certificate (as defined in the Agreement) for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form of
this affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of
any of the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization furnishing electric
energy or providing telephone service to persons in rural areas as described in
Code Section 1381(a)(2)(C), any "electing large partnership" within the meaning
of Section 775 of the Code, or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from federal income
tax unless such organization is subject to the tax on unrelated business income
imposed by Code Section 511.
4. That the Purchaser is not, and on __________________ [date of transfer]
will not be, and is not and on such date will not be investing the assets of,
an employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or a plan subject to Code Section 4975 or a
person or entity that is using the assets of any employee benefit plan or other
plan to acquire a Residual Certificate.
5. That the Purchaser hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, The Chase Manhattan Bank, as Trustee and Aurora Loan Services
Inc., as Master Servicer, dated as of May 1, 1999, no transfer of a Residual
Certificate shall be permitted to be made to any person unless the Trustee has
received a certificate from such transferee to the effect that such transferee
is not an employee benefit plan subject to ERISA or a plan subject to Section
4975 of the Code and is not using the assets of any employee benefit plan or
other plan to acquire a Residual Certificate.
6. That the Purchaser does not hold REMIC residual securities as nominee
to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations (such
entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and providing
to the Trustee a written statement substantially in the form of Exhibit G to
the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person
that holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form 4224 or successor form
at the time and in the manner required by the Code. "Non-U.S. Person" means an
individual, corporation, partnership or other person other than a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any state
thereof, including for this purpose, the District of Columbia, or an estate
that is subject to U.S. federal income tax regardless of the source of its
income, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States trustees have authority to control all substantial decisions of the
trust.
11. That the Purchaser agrees to such amendments of the Trust Agreement as
may be required to further effectuate the restrictions on transfer of any
Residual Certificate to such a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee as its
agent to act as "tax matters person" of the Trust Fund pursuant to the Trust
Agreement.
<PAGE>
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________, 19__.
________________________________
[name of Purchaser]
By:_____________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 19__.
NOTARY PUBLIC
____________________________
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 19__.
<PAGE>
EXHIBIT D-2
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
______________
Date
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
___________________________
Name:
Title:
<PAGE>
EXHIBIT E
SERVICING AGREEMENT
<PAGE>
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 1999-ALS2
---------------------------------------
Reference is hereby made to the Trust Agreement dated as of May 1, 1999
(the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer and The Chase
Manhattan Bank, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Balance of Class
Certificates which are held in the form of Definitive Certificates registered
in the name of (the "Transferor"). The Transferor has requested a transfer of
such Definitive Certificates for Definitive Certificates of such Class
registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A purchasing for its own account or for the
account of a "qualified institutional buyer", which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Placement Agent and the Depositor.
______________________________________
[Name of Transferor]
By:___________________________________
Name:
Title:
Dated: __________________, ______
<PAGE>
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
_____________
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 1999-ALS2 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell any Privately
Offered Certificates within three years of the later of the date of original
issuance of the Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any affiliate of
the Depositor (which includes the Placement Agent) we will do so only (A) to
the Depositor, (B) to "qualified institutional buyers" (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act ("QIBs"), (C) pursuant to an exemption from registration in
accordance with Rule 904 of Regulation S under the Securities Act, (D) pursuant
to the exemption from registration provided by Rule 144 under the Securities
Act, or (E) to an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that
is not a QIB (an "Institutional Accredited Investor") which, prior to such
transfer, delivers to the Trustee under the Trust Agreement dated as of May 1,
1999 among the Depositor, Aurora Loan Services Inc., as Master Servicer and The
Chase Manhattan Bank, as Trustee (the "Trustee"), a signed letter in the form
of this letter; and we further agree, in the capacities stated above, to
provide to any person purchasing any of the Privately Offered Certificates from
us a notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor, we will
be required to furnish to the Trustee and the Depositor a certification from
such transferee in the form hereof to confirm that the proposed sale is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to the
foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Privately Offered Certificates, and
we and any account for which we are acting are each able to bear the economic
risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or for one
or more accounts (each of which is an Institutional Accredited Investor) as to
each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan as to which the
Purchaser, the Depositor, any Servicer or Master Servicer or the Trustee is a
party in interest or disqualified person, and no person acting on behalf of
such a Plan may acquire such Certificate unless the acquisition would
constitute an exempt transaction under a statutory exemption or any of the
administrative exemptions issued by the U.S. Department of Labor.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Trust Agreement.
<PAGE>
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
__________________________________
[Purchaser]
By________________________________
Name:
Title:
<PAGE>
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"), a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan subject to
Section 406 or Section 407 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), the Trustee of any such plan or a person acting
on behalf of any such plan nor a person using the assets of any such plan or
(2) if the Investor is an insurance company, such Investor is purchasing such
Certificates with funds contained in an "Insurance Company General Account" (as
such term is defined in Section v(e) of the Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the Trustee
and the Depositor an opinion of counsel (a "Benefit Plan Opinion") satisfactory
to the Trustee and the Depositor, and upon which the Trustee and the Depositor
shall be entitled to rely, to the effect that the purchase or holding of such
Certificate by the Investor will not result in the assets of the Trust Fund
being deemed to be plan assets and subject to the prohibited transaction
provisions of ERISA or the Code and will not subject the Trustee or the
Depositor to any obligation in addition to those undertaken by such entities in
the Trust Agreement, which opinion of counsel shall not be an expense of the
Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer, and The Chase
Manhattan Bank, as Trustee, dated as of May 1, 1999, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Depositor and Trustee have received a certificate from such
transferee in the form hereof.
<PAGE>
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 199 .
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
___________________________
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named _________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Investor, and acknowledged
that he executed the same as his free act and deed and the free act and deed of
the Investor.
Subscribed and sworn before me this _____ day of ___________ 199__.
_________________________________
NOTARY PUBLIC
My commission expires the
____ day of __________, 19__.
<PAGE>
EXHIBIT I
MONTHLY REMITTANCE ADVICE
<PAGE>
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
<PAGE>
EXHIBIT K
CUSTODIAL AGREEMENT
<PAGE>
SCHEDULE A
MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE B
PRINCIPAL AMOUNT SCHEDULES
[Not Applicable]
EXECUTION COPY
MBIA INSURANCE CORPORATION,
as Insurer
LEHMAN CAPITAL,
as Seller
STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
and
THE CHASE MANHATTAN BANK,
as Trustee
INSURANCE AGREEMENT
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 1999-ALS2
$23,000,000 6.65% Class A3 Certificates
$15,000,000 6.75% Class A4 Certificates
Dated as of May 1, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. General Definitions.........................................1
Section 1.02. Generic Terms...............................................4
Article II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of
the Seller and the Depositor.............................4
Section 2.02. Reserved....................................................8
Section 2.03. Representations, Warranties and Covenants
of Trustee...............................................8
Article III
THE POLICIES; REIMBURSEMENT; SECURITY
Section 3.01. Agreement To Issue the Policies............................10
Section 3.02. Conditions Precedent to Issuance of the Policies...........10
Section 3.03. Payment of Fees and Premium................................10
Section 3.04. Payment Procedure..........................................11
Section 3.05. Reimbursement and Additional Payment
Obligation of the Seller and the Depositor.............11
Section 3.06. Indemnification by the Seller and the Depositor............12
Article IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of Agreement..........................13
Section 4.02. Waiver of Rights; Further Assurances.......................13
Section 4.03. Obligations Absolute.......................................13
Section 4.04. Assignments; Reinsurance; Third-Party Rights...............14
Section 4.05. Liability of Insurer.......................................15
Section 4.06. Subrogation................................................15
Article V
DEFAULTS; REMEDIES
Section 5.01. Defaults...................................................15
Section 5.02. Remedies; No Remedy Exclusive..............................15
Section 5.03. Waivers....................................................16
Article VI
MISCELLANEOUS
Section 6.01. Amendments, Changes and Modifications......................16
Section 6.02. Notices....................................................17
Section 6.03. Severability...............................................18
Section 6.04. Governing Law..............................................18
Section 6.05. Consent to Jurisdiction and Venue, Etc.....................18
Section 6.06. Consent of Insurer.........................................18
Section 6.07. Counterparts...............................................18
Section 6.08. Headings...................................................19
Section 6.09. WAIVER OF TRIAL BY JURY....................................19
Section 6.10. Entire Agreement...........................................19
Section 6.11. Third Party Beneficiary....................................19
<PAGE>
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT is made as of May 1, 1999 by and among MBIA INSURANCE
CORPORATION (the "Insurer"), LEHMAN CAPITAL, a Division of Lehman Brothers
Holdings Inc., as Seller (the "Seller"), STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor (the "Depositor"), and THE CHASE MANHATTAN BANK, in
its capacity as trustee under the Trust Agreement (the "Trustee").
RECITALS:
WHEREAS, the Trust Agreement dated as of May 1, 1999 by and among the
Depositor, the Master Servicer and the Trustee (the "Trust Agreement")
relating to the Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1999-ALS2 $23,000,000 6.65% Class A3 Certificates and
$15,000,000 6.75% Class A4 Certificates (the "Insured Certificates") provides
for, among other things, the issuance of mortgage backed certificates,
representing fractional ownership interests in the trust estate (the "Trust")
established thereby;
WHEREAS, the Depositor has requested that the Insurer issue two
certificate guaranty insurance policies (the "Policies") to guarantee payment
of Insured Payments (as defined in the Policies) to the Trustee for the
benefit of the Owners of the Insured Certificates upon such terms and
conditions as were mutually agreed upon by the parties and subject to the
terms and the conditions of the Policies;
WHEREAS, the parties hereto desire to specify the conditions
precedent to the issuance of the Policies by the Insurer and to provide for
certain other matters;
NOW, THEREFORE, in consideration of the premises and of the
agreements herein contained, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.01. General Definitions. The terms defined in this Article I shall
have the meanings provided herein for all purposes of this Agreement, unless
the context clearly requires otherwise, in both singular and plural form, as
appropriate. Capitalized terms used in this Agreement but not otherwise
defined herein will have the meanings assigned to such terms in the Trust
Agreement.
"Agreement" means this Insurance Agreement dated as of May 1, 1999,
including any amendments or any supplements hereto as herein permitted.
"Business Day" means any day other than (i) a Saturday or a Sunday
(ii) a day on which the Insurer is closed or (iii) a day on which banking
institutions in New York City or in the city in which the corporate trust
office of the Trustee under the Trust Agreement is located are authorized or
obligated by law or executive order to close.
"Commitment" means each of the Commitments, dated May 26, 1999
between Lehman Brothers, Inc. and the Insurer, relating to the Insured
Certificates.
"Date of Issuance" means the date on which the Policies are issued as
specified therein.
"Event of Default" means any event of default set forth in Section
5.01 hereof.
"Financial Statements" means, with respect to the Seller or the
Depositor the balance sheets and the statements of income and retained
earnings and the notes thereto.
"Late Payment Rate" means the rate of interest publicly announced by
Citibank, N.A. at its principal office in New York, New York as its prime rate
(any change in such prime rate of interest to be effective on the date such
change is announced by Citibank, N.A.) plus 3%. The Late Payment Rate shall be
computed on the basis of a year of 365 days calculating the actual number of
days elapsed. In no event shall the Late Payment Rate exceed the maximum rate
permissible under law applicable to this Agreement limiting interest rates.
"Material Adverse Change" means, in respect of any Person, a material
adverse change in the ability of such Person to perform its obligations under
any of the Transaction Documents.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and any successor thereto, and, if such corporation shall for any
reason no longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally recognized rating
agency designated by the Insurer.
"Mortgage Loan Sale and Assignment Agreement" means the Mortgage Loan
Sale and Assignment Agreement dated as of May 1, 1999 between the Seller and
the Depositor including any amendments and supplements thereto as therein and
herein permitted.
"Offering Document" means the Prospectus dated January 15, 1999 and
the Prospectus Supplement thereto dated May 14, 1999 of the Depositor in
respect of the Insured Certificates (and any amendment or supplement thereto)
and any other offering document in respect of the Insured Certificates
prepared by the Depositor that makes reference to the Policies.
"Owner" means each Holder (as defined in the Trust Agreement) of an
Insured Certificate who, on the applicable distribution date, is entitled
under the terms of the Insured Certificates to payment thereunder.
"Person" means an individual, joint stock company, trust,
unincorporated association, joint venture, corporation, business or owner
trust, limited liability company, partnership or other organization or entity
(whether governmental or private).
"Premium" means the premium payable in accordance with Section 3.03
hereof.
"Premium Percentage" shall have the meaning set forth in paragraph
1(a) of the Commitment.
"Purchase Agreement" means the Purchase Agreement dated as of May 14,
1999 between the Depositor and the Underwriter including any amendments and
supplements thereto as therein and herein permitted.
"Registration Statement" means the Registration Statement on Form S-3
of the Depositor relating to the Certificates.
"Securities Act" means the Securities Act of 1933, including, unless
the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Servicing Agreement" means the Servicing Agreement dated as of May
1, 1999 between the Seller and the Master Servicer, including any amendments
and supplements thereto as therein and herein permitted.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto, and, if such
corporation shall for any reason no longer perform the functions of a
securities rating agency, "S&P" shall be deemed to refer to any other
nationally recognized rating agency designated by the Insurer.
"Term of the Agreement" shall be determined as provided in Section
4.01 hereof.
"Transaction" means the transactions contemplated by the Transaction
Documents, including the transaction described in the Prospectus Supplement.
"Transaction Documents" means this Agreement, the Commitments, the
Trust Agreement, the Servicing Agreement, the Mortgage Loan Sale and
Assignment Agreement, the Purchase Agreement, the Custodial Agreements, the
Underwriting Agreement, the Offering Document and the Certificates.
"Trust Agreement" means the Trust Agreement dated as of May 1, 1999
among the Depositor, the Master Servicer and the Trustee, including any
amendments and supplements thereto as therein and herein permitted.
"Underwriter" means Lehman Brothers Inc.
"Underwriting Agreement" means the Underwriting Agreement dated as of
April 16, 1999 between the Depositor and the Underwriter, as supplemented by a
terms agreement dated May 14, 1999 between the Depositor and the Underwriter,
including any amendments and supplements thereto as therein and herein
permitted.
Section 1.02. Generic Terms. All words used herein shall be construed to be of
such gender or number as the circumstances require. This "Agreement" shall
mean this Agreement as a whole and as the same may, from time to time
hereafter, be amended, supplemented or modified. The words "herein," "hereby,"
"hereof," "hereto," "hereinabove" and "hereinbelow," and words of similar
import, refer to this Agreement as a whole and not to any particular
paragraph, clause or other subdivision hereof, unless otherwise specifically
noted.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of the Seller
and the Depositor. Each of the Seller and the Depositor, represents and
warrants to, as of the Date of Issuance, and covenants with, the Insurer as
follows:
(a) Due Organization and Qualification. Each of the Seller and the
Depositor is a corporation, duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation.
Each of the Seller and the Depositor is duly qualified to do business, is
in good standing and has obtained all licenses, permits, charters,
registrations and approvals (together, "approvals") necessary for the
conduct of its business as currently conducted and as described in the
Offering Document and the performance of its obligations under the
Transaction Documents, in each jurisdiction in which the failure to be so
qualified or to obtain such approvals would render any Transaction
Document unenforceable in any respect or would have a material adverse
effect upon the Transaction, the Owners or the Insurer.
(b) Power and Authority. Each of the Seller and the Depositor have
all necessary corporate power and authority to conduct its business as
currently conducted and, as described in the Offering Document, to
execute, deliver and perform its obligations under the Transaction
Documents and to consummate the Transaction.
(c) Due Authorization. The execution, delivery, and performance of
the Transaction Documents by the Seller and the Depositor have been duly
authorized by all necessary corporate action and do not require any
additional approvals or consents, or other action by or any notice to or
filing with any Person, including, without limitation, any governmental
entity or the Seller's or the Depositor's stockholders, which have not
previously been obtained or given by the Seller or the Depositor.
(d) Noncontravention. Neither the execution and delivery of the
Transaction Documents by the Seller or the Depositor, the consummation of
the transactions contemplated thereby nor the satisfaction of the terms
and conditions of the Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the certificate of incorporation or bylaws of the
Seller or the Depositor or any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award currently in
effect having applicability to the Seller or the Depositor or any of
its material properties, including regulations issued by an
administrative agency or other governmental authority having
supervisory powers over the Seller and the Depositor;
(ii) constitutes a default by the Seller or the Depositor under
or a breach of any provision of any material loan agreement,
mortgage, indenture or other agreement or instrument to which the
Seller or the Depositor is a party or by which any of its or their
respective properties, which are individually or in the aggregate
material to the Seller or the Depositor, is or may be bound or
affected; or
(iii) results in or requires the creation of any lien upon or
in respect of any assets of the Seller or the Depositor, except as
contemplated by the Transaction Documents.
(e) Legal Proceedings. There is no action, proceeding or
investigation by or before any court, governmental or administrative
agency or arbitrator against or affecting the Seller or the Depositor or
any of its or their subsidiaries, or any properties or rights of the
Seller or the Depositor or any of its or their subsidiaries, pending or,
to the Seller's, and the Depositor's knowledge, threatened, which, in any
case, could reasonably be expected to result in a Material Adverse Change
with respect to the Seller or the Depositor.
(f) Valid and Binding Obligation. The Transaction Documents to which
either the Seller or the Depositor are a party constitute, and when
executed by the Seller and the Depositor (if not previously) will
constitute, the legal, valid and binding obligations of the Seller and
the Depositor, as applicable, enforceable against the Seller and the
Depositor in accordance with their respective terms, except as the
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or limiting creditors'
rights generally or general equitable principles, as such relate to the
Seller or the Depositor. (g) Financial Statements. The Financial
Statements supplied, or publicly available, to the Insurer prior to the
Date of Issuance (i) present fairly the financial condition and results
of operations of the Seller and the Depositor as of the dates and for the
periods indicated and (ii) have been prepared in accordance with
generally accepted accounting principles consistently applied, except as
noted therein and subject to year-end adjustments with respect to interim
statements. Since the date of such Financial Statements, there has been
no Material Adverse Change in such condition or operations of the Seller
or the Depositor.
(h) Compliance With Law, Regulations, Etc. Except as disclosed in
writing to the Insurer or in the Offering Document, neither the Seller
nor the Depositor has notice or any reason to believe that any practice,
procedure or policy employed by the Seller or the Depositor in the
conduct of its business violates, any law, regulation, judgment or
agreement applicable to the Seller or the Depositor which, if enforced,
would have a material adverse effect on the ability of the Seller or the
Depositor to perform its obligations under the Transaction Documents.
Except as disclosed in writing to the Insurer or in the Offering
Document, neither the Seller nor the Depositor is in breach of or in
default under any applicable law or administrative regulation of any
department, division, agency or instrumentality which has jurisdiction
over it or any applicable judgment or decree or any loan agreement, note,
resolution, certificate, agreement or other instrument to which the
Seller or the Depositor is a party or is otherwise subject which would
have a material adverse affect on its or their ability to perform under
the Transaction Documents.
(i) Delivery of Information. None of the Transaction Documents nor
any other documents, reports, notices, operating agreements, schedules,
certificates, statements or other writings (collectively, the
"Documents"), furnished to the Insurer by the Seller or the Depositor on
or before the Date of Issuance contain any statement of a material fact
by the Seller or the Depositor which was untrue or misleading in any
material respect when made. Since the furnishing of the Documents but
prior to the offering of the Insured Certificates, there has been no
change nor any development or event involving a prospective change which
would render any of the Transaction Documents untrue or misleading in a
material respect.
(j) Continuing Information. The Seller or the Depositor shall
deliver to the Insurer concurrently with the delivery thereof to the
Trustee the statements, notices, reports or other information required by
the Trust Agreement to be delivered to the Insurer or the
Certificateholders. Upon the request of the Insurer, the Depositor shall
furnish, with reasonable promptness, any Financial Statements or data
regarding the Trust.
(k) Access to Records; Discussions With Officers and Accountants.
The Depositor shall, upon the request of the Insurer, permit the Insurer,
or its authorized agent, at reasonable times and upon reasonable notice,
to inspect, the Depositor's books and records as they may relate to the
Certificates, the Mortgage Loans and the Depositor's obligations under
the Transaction Documents and to discuss the Depositor's affairs,
finances and accounts with an appropriate authorized officer of the
Depositor.
(l) Notice of Material Events. The Seller and the Depositor shall be
obligated (which obligation shall be satisfied as to each if performed by
the Seller or the Depositor) promptly to inform the Insurer in writing of
the occurrence of any of the following to the extent any of the following
relate to it:
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation or rule making or disciplinary proceeding in any
federal, state or local court or before any arbitration board, or
any such proceeding threatened by any government agency, which, if
adversely determined, would have a material adverse effect on the
Seller, the Depositor, the Owners or the Insurer or would result in
a Material Adverse Change with respect to the Seller or the
Depositor;
(ii) the occurrence of any Default or Event of Default or of
any Material Adverse Change;
(iii) the commencement of any proceedings by or against the
Seller or the Depositor under any applicable bankruptcy,
reorganization, liquidation, rehabilitation, insolvency or other
similar law now or hereafter in effect or of any proceeding in which
a receiver, liquidator, conservator, trustee or similar official
shall have been, or may be, appointed or requested for the Seller or
the Depositor or any of its or their assets; or
(iv) the receipt of notice that (A) the Seller or the Depositor
is being placed under regulatory supervision, (B) any license,
permit, charter, registration or approval necessary for the conduct
of the Seller or the Depositor business is to be or may be suspended
or revoked, or (C) the Seller or the Depositor is to cease and
desist any practice, procedure or policy employed by the Seller or
the Depositor in the conduct of its business, and such cessation may
result in a Material Adverse Change with respect to the Seller or
the Depositor.
(m) Impairment of Rights. The Seller and the Depositor shall not take any
action, if such action will have a material adverse effect on the Insurer's
ability to enforce its rights under the Trust Agreement, or this Agreement;
provided, however, that this Section 2.01 (m) shall not prohibit the Seller or
the Depositor from taking any action it is required to take pursuant to the
Transaction Documents, any applicable law or order of any court or regulatory
authority with jurisdiction over the Seller, the Depositor, the Transaction
Documents or the Certificates.
(n) Securities Law Compliance. The Seller and the Depositor each
represent and warrant that neither the offer nor the sale of the Certificates
to the Underwriter has been or will be in violation of the Securities Act or
any federal or state securities laws. The Seller and the Depositor each
further represents and warrants that it is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as amended.
(o) Transcripts. The Seller and the Depositor shall, within 90 days
following the closing of the Transaction, provide each of the Insurer and its
counsel a final transcript containing the documents and opinions executed in
connection with the Transaction.
(p) Transaction Documents. Each of the representations and warranties of
the Seller and the Depositor contained in the Transaction Documents is true
and correct in all material respects, and the Seller and the Depositor hereby
make each such representation and warranty to, and for the benefit of, the
Insurer as if the same were set forth in full herein.
(q) Solvency; Fraudulent Conveyance. The Seller and the Depositor are
solvent and will not be rendered insolvent by the Transaction and, after
giving effect to the Transaction, neither the Seller nor the Depositor will be
left with an unreasonably small amount of capital with which to engage in its
business, nor does the Seller or the Depositor intend to incur, or believe
that it has incurred, debts beyond its ability to pay as they mature. Neither
of the Seller nor the Depositor contemplates the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the appointment of a
receiver, liquidator, conservator, trustee or similar official in respect of
the Seller or the Depositor or any of its or their assets. The amount of
consideration being received by the Depositor upon the sale of the
Certificates to the Underwriter constitutes reasonably equivalent value and
fair consideration for the interest in the Mortgage Loans evidenced by the
Certificates. The Seller is not transferring the Mortgage Loans to the
Depositor, the Depositor is not transferring the Mortgage Loans to the Trust
and the Depositor is not selling the Certificates to the Underwriter, as
provided in the Transaction Documents, with any intent to hinder, delay or
defraud any of the Seller's or the Depositor's creditors.
(r) Compliance With Agreements and Applicable Laws. The Seller and the
Depositor shall comply in all material respects with the terms and conditions
of the Transaction Documents to which it is a party and shall comply with all
material requirements of any law, rule or regulation applicable to it.
(s) Maintenance of Existence. The Seller and the Depositor, its or their
successors and assigns, shall maintain their corporate existence and shall at
all times continue to be duly organized under the laws of their respective
jurisdictions of organization and duly qualified and duly authorized (as
described in section 2.01(a), (b) and (c) hereof) and shall conduct its
business in accordance with the terms of its charter, certificate or articles
of incorporation and bylaws.
Section 2.02. Reserved.
Section 2.03. Representations, Warranties and Covenants of Trustee.
The Trustee represents and warrants to, as of the Date of Issuance, and
covenants with the other parties hereto as follows:
(a) Due Organization and Qualification. The Trustee is a New York banking
corporation, duly organized, validly existing and in good standing under the
laws of the state of New York. The Trustee is duly qualified to do business,
is in good standing and has obtained all licenses, permits, charters,
registrations and approvals (together, "approvals") necessary for the conduct
of its business as currently conducted and as described in the Offering
Document and the performance of its obligations under the Transaction
Documents, in each jurisdiction in which the failure to be so qualified or to
obtain such approvals would render any Transaction Document unenforceable in
any respect or would have a material adverse effect upon the Transaction, the
Owners or the Insurer.
(b) Due Authorization. The execution, delivery and performance of the
Transaction Documents by the Trustee have been duly authorized by all
necessary action and do not require any additional approvals or consents, or
other action by or any notice to or filing with any Person, including, without
limitation, any governmental entity or the Trustee's stockholders, which have
not previously been obtained or given by the Trustee.
(c) Noncontravention. Neither the execution and delivery of the
Transaction Documents by the Trustee, the consummation of the transactions
contemplated thereby nor the satisfaction of the terms and conditions of the
Transaction Documents, will conflict with or result in the breach of any
material term or provision of the charter or by-laws of the Trustee, and the
Trustee is not in breach or violation of or in default (nor, to the best of
the Trustee's knowledge, has an event occurred which with notice or lapse of
time or both would constitute a default) under the terms of (i) any agreement
to which the Trustee is a party or by which it or its properties are bound, or
(ii) any law, decree, rule, or regulation applicable to the Trustee of any
court or supervisory, regulatory, administrative or governmental agency, body
or authority, or arbitrator having jurisdiction over its properties, the
default in or the breach or violation of which would have a material adverse
effect on the Trustee or the ability of the Trustee to perform its obligations
under the Transaction Documents.
(d) Valid and Binding Obligations. The Insured Certificates, when
executed, authenticated and issued in accordance with the Trust Agreement, and
the Transaction Documents (other than the Insured Certificates) to which it is
a party, when executed and delivered by the Trustee, will constitute the
legal, valid and binding obligations of the Trustee, as applicable,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles. The Trustee will not at any time in the future
deny that the Transaction Documents constitute the legal, valid and binding
obligations of the Trustee.
ARTICLE III
THE POLICIES; REIMBURSEMENT; SECURITY
Section 3.01. Agreement To Issue the Policies. The Insurer agrees,
subject to the conditions set forth in Section 3.02 hereof, to issue the
Policies on the Date of Issuance.
Section 3.02. Conditions Precedent to Issuance of the Policies. The
Seller, the Depositor and the Underwriter shall have complied with the terms
and satisfied the conditions precedent set forth below:
(a) the Underwriter shall have paid or caused to be paid that portion of
a non-refundable Premium, if any, payable on the Date of Issuance in
accordance with Section 3.03 hereof;
(b) the Seller and the Depositor shall have complied with all
requirements of the Commitment;
(c) the Insurer shall have received true and correct copies of any
governmental approvals necessary for the transactions contemplated by this
Agreement and the Trust Agreement or a certificate to the effect that no such
approvals are necessary;
(d) the Insurer shall have received a certificate of an authorized
officer of the Seller and the Depositor certifying the name and true
signatures of the officers of the Seller and the Depositor executing the
Transaction Documents; and
(e) the Insurer shall have received confirmation that the risk secured by
the Policies constitutes a "AAA" risk by S&P and at least "Aaa" by Moody's and
that the Insured Certificates, when issued, will be rated "AAA" by S&P without
regard to the Policies.
Issuance of the Policies will be conclusive evidence of satisfaction
or waiver of any of the conditions set forth in this Section 3.02.
Section 3.03. Payment of Fees and Premium.
(a) In consideration of the issuance by the Insurer of the Policies, the
Insurer shall be entitled to receive a premium (the "Premium") in accordance
with the terms of each of the Commitments. The Premium shall be calculated
according to paragraph 1 of each Commitment. The Premium paid hereunder shall
be nonrefundable without regard to whether the Insurer makes any payment under
the Policies or any other circumstances relating to the Insured Certificates
or provision being made for payment of the Insured Certificates prior to
maturity. The Trustee shall make all payments of Premium from available funds
in the Trust Fund to be made by it by wire transfer to an account designated
by the Insurer by written notice to the Trustee.
(b) The Underwriter shall pay the fees of the Insurer's counsel in
connection with the Transaction, Moody's fees for the shadow rating,
S&P's fees and the cost of obtaining the Insurer's accountant's
consent letter.
Section 3.04. Payment Procedure. All payments to be made to the
Insurer under this Agreement shall be made to the Insurer in lawful currency
of the United States of America in immediately available funds at the notice
address for the Insurer as specified in the Trust Agreement on the date when
due. Payments to be made to the Insurer under this Agreement shall bear
interest at the Late Payment Rate from the date when due to the date paid,
provided that reimbursement to the Insurer of Insured Payments shall be made
from the assets of the Trust in accordance with the terms of the Trust
Agreement at the Late Payment Rate.
Section 3.05. Reimbursement and Additional Payment Obligation of the
Seller and the Depositor.
(a) In accordance with the priorities established in Section 5.02 of the
Trust Agreement, the Insurer shall be entitled to reimbursement for any
payment made by the Insurer under the Policies, which reimbursement shall be
due and payable on the date that any amount is to be paid pursuant to a Notice
(as defined in the Policies), in an amount equal to the amount to be so paid
and all amounts previously paid that remain unreimbursed, together with
interest on any and all amounts remaining unreimbursed (to the extent
permitted by law, if in respect of any unreimbursed amounts representing
interest) from the date such amounts became due until paid in full (after as
well as before judgment), at a rate of interest equal to the Late Payment
Rate.
(b) Notwithstanding anything in Section 3.03(a) to the contrary, the
Seller agree to reimburse the Insurer for payments made under the Policies
arising as a result of the Seller's failure to repurchase any Mortgage Loan
required to be repurchased pursuant to Section 1.04 of the Mortgage Loan Sale
and Assignment Agreement, together with interest on any and all amounts
remaining unreimbursed (to the extent permitted by law, if in respect of any
unreimbursed amounts representing interest) from the date such amounts became
due until paid in full (after as well as before judgment), at a rate of
interest equal to the Late Payment Rate.
(c) The Seller and the Depositor each agree to reimburse the Insurer,
immediately upon receipt of two Business Days' prior written notice, for any
and all charges, fees, costs and expenses that the Insurer may reasonably pay
or incur including, but not limited to, reasonable attorneys' and accountants'
fees and reasonable expenses, in connection with (a) the enforcement, defense
or preservation of any rights in respect of any of the Transaction Documents,
including defending or participating in any litigation or proceeding
(including any insolvency or bankruptcy proceeding in respect of any
Transaction participant or any affiliate thereof) relating to any of the
Transaction Documents, any party to any of the Transaction Documents, in its
capacity as such a party, or the Transaction, provided that the foregoing
arises out of the Seller's or the Depositor's breach or alleged breach of its
or their obligations under the applicable Transaction Document or (b) any
amendment of any Transaction Document, whether or not executed or completed.
(d) The Seller and the Depositor agree to pay to the Insurer as follows:
any payments made by the Insurer on behalf of, or advanced to the Seller or
the Depositor, respectively, including, without limitation, any amounts
payable by the Seller or the Depositor pursuant to the Certificates or any
other Transaction Documents.
All such amounts are to be immediately due and payable without
demand.
Section 3.06. Indemnification by the Seller and the Depositor.
(a) In addition to any and all rights of indemnification or any
other rights of the Insurer pursuant hereto or under law or equity, the
Seller and the Depositor and any successors thereto agree to pay, and to
protect, indemnify and save harmless, the Insurer and its officers,
directors, shareholders, employees, agents and each person, if any, who
controls the Insurer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act from and
against any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or reasonable expenses
(including, without limitation, reasonable fees and expenses of
attorneys, consultants and auditors and reasonable costs of
investigations) or obligations whatsoever paid by the Insurer (herein
collectively referred to as "Liabilities") of any nature arising out of
or relating to the transactions contemplated by the Transaction Documents
by reason of:
(i) any act or omission of the Seller or the Depositor, or the
allegation thereof, in connection with the offering, issuance, sale
or delivery of the Certificates other than by reason of false or
misleading information provided by the Insurer in writing for
inclusion in the Offering Document, which is contained in the
caption "The Certificate Insurance Policies" of the Offering
Document;
(ii) the misfeasance or malfeasance of, or negligence or theft
committed by, any director, officer, employee or agent of the Seller
or the Depositor;
(iii) the violation by the Seller or the Depositor of any
federal or state securities, banking or antitrust laws, rules or
regulations in connection with the issuance, offer and sale of the
Certificates or the transactions contemplated by the Transaction
Documents;
(iv) the violation by the Seller or the Depositor of any
federal or state laws, rules or regulations relating to the
Transaction, including without limitation the maximum amount of
interest permitted to be received on account of any loan of money or
with respect to the Mortgage Loans;
(v) the breach by the Seller or the Depositor of any of its
obligations under this Insurance Agreement or any of the other
Transaction Documents; and
(vi) the breach by the Seller or the Depositor of any
representation or warranty on the part of the Seller or the
Depositor contained in the Transaction Documents or in any
certificate or report furnished or delivered to the Insurer
thereunder.
This indemnity provision and the provisions in Section 3.05 shall
survive the termination of this Insurance Agreement and shall survive until
the statute of limitations has run on any causes of action which arise from
one of these reasons and until all suits filed as a result thereof have been
finally concluded.
(b) Each of the Seller and the Depositor agree to pay to the Insurer
interest on any and all amounts required to be paid by the Seller or the
Depositor, including but not limited to those amounts described in
Section 3.05 and this Section 3.06, from the date payable until payment
thereof is made in full. Such interest shall be payable at the Late
Payment Rate per annum.
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of Agreement. This Agreement shall
take effect on the date on which the Policies are issued and shall remain in
effect until such time as the Insurer is no longer subject to a claim under
the Policies and all amounts payable by the Seller or the Depositor hereunder
or under the Trust Agreement and under the Certificates have been paid in
full; provided, however, that the provisions of Sections 3.05 and 3.06 shall
survive any termination of this Agreement.
Section 4.02. Waiver of Rights; Further Assurances.
(a) Excepting at such times as a default in payment under the
Policies shall exist or shall have occurred, none of the Trustee, the
Seller or the Depositor shall grant any waiver of rights under any of the
Transaction Documents to which any of them is a party without the prior
written consent of the Insurer, (unless such waiver is expressly
permitted in the applicable Transaction Document) and any such waiver
without the prior written consent of the Insurer shall be null and void
and of no force or effect.
(b) To the extent permitted by law, the Trustee, the Seller and the
Depositor agree that they will, from time to time, following good faith
negotiations in connection therewith, execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as the Insurer may request and as may
be required in the Insurer's judgment to effectuate the intention of or
facilitate the performance of this Insurance Agreement.
Section 4.03. Obligations Absolute. The obligations of the Seller,
the Depositor and the Trustee hereunder shall be absolute and unconditional,
and shall not be subject to, and the Seller, the Depositor and the Trustee
hereby waive (a) presentment and demand for payment, (b) notices in connection
with delivery and acceptance hereof or notices in connection with performance,
default or enforcement of payment hereunder and (c) its rights of, abatement,
diminution, postponement or deduction, or to any defense other than payment,
or to any right of setoff or recoupment arising out of any breach under any of
the Transaction Documents, by any party thereto or any beneficiary thereof, or
out of any obligation at any time owing to the Seller, the Depositor or the
Trustee. Nothing herein shall be construed as prohibiting the Seller, the
Depositor or the Trustee from pursuing any rights or remedies it may have
against any other person or entity in a separate legal proceeding. The
obligations of the Seller, the Depositor and the Trustee hereunder are
absolute and unconditional and will be paid or performed strictly in
accordance with this Agreement.
Section 4.04. Assignments; Reinsurance; Third-Party Rights.
(a) This Agreement shall be a continuing obligation of the Seller
and the Depositor and shall (i) be binding upon the Seller and the
Depositor, its or their successors and assigns and (ii) inure to the
benefit of and be enforceable by the Insurer and its successors,
transferees and assigns. Neither the Seller nor the Depositor may assign
this Agreement, or delegate any of its rights or obligations hereunder,
without the prior written consent of the Insurer.
(b) The Insurer shall have the right to give participations in its
rights under this Agreement and to enter into contracts of reinsurance
with respect to the Policies and each such participant or reinsurer shall
be entitled to the benefit of any representation, warranty, covenant and
obligation of the Seller or the Depositor hereunder as if such
participant or reinsurer was a party hereto; provided that no such grant
of participation shall operate to relieve the Insurer of any of its
obligations hereunder or under the Policies.
(c) In addition, the Insurer shall be entitled to assign or pledge
to any bank or other lender providing liquidity or credit with respect to
the Transaction or the obligations of the Insurer in connection therewith
any rights of the Insurer under the Transaction Documents or with respect
to any real or personal property or other interests pledged to the
Insurer, or in which the Insurer has a security interest, in connection
with the Transaction.
(d) Except as provided herein with respect to participants and
reinsurers, nothing in this Agreement shall confer any right, remedy or
claim, express or implied, upon any person, including, particularly, any
Holder of a Certificate, other than the Insurer, against the Seller and
the Depositor and all the terms, covenants, conditions, promises and
agreements contained herein shall be for the sole and exclusive benefit
of the parties hereto and their successors. Neither the Trustee nor any
Holder of a Certificate shall have any right to payment from the premium
paid pursuant to Section 3.03 hereof.
Section 4.05. Liability of Insurer.The Insurer shall not be
responsible for any act or omission of the Trustee with respect to its use of
the Policies. Neither the Insurer nor any of its officers, directors or
employees shall be liable or responsible for: (a) the use which may be made of
the Policies by or for any acts or omissions of the Trustee in connection
therewith; or (b) the validity, sufficiency, accuracy or genuineness of
documents, or of any endorsement(s) thereon, submitted by any person in
connection with a claim under the Policies, even if such documents should in
fact prove to be in any or all respects invalid, insufficient, fraudulent or
forged, unless the Insurer has actual knowledge thereof. In furtherance and
not in limitation of the foregoing, the Insurer may accept documents that
appear on their face to be in order, without responsibility for further
investigation.
Section 4.06. Subrogation. To the extent of any payments under the
Policies, the Insurer shall be fully subrogated to any remedies against the
Seller or the Depositor or in respect of the Mortgage Loans available to the
Trustee under the Trust Agreement. The Trustee acknowledges such subrogation
and, further, agrees to execute such instruments prepared by the Insurer and
to take such reasonable actions as, in the sole judgment of the Insurer, are
necessary to evidence such subrogation and to perfect the rights of the
Insurer to receive any moneys paid or payable under the Trust Agreement.
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. Defaults. The occurrence of any of the following events
shall constitute an Event of Default hereunder:
(a) any representation or warranty made by the Seller or the
Depositor under this Agreement shall prove to be untrue or incomplete in
any material respect; provided, however, that if the Seller or the
Depositor effectively cures any such defect in any representation or
warranty under such agreement within the time period specified in such
agreement as the cure period therefor, such defect shall not in and of
itself constitute an Event of Default hereunder; or
(b) either the Seller or the Depositor shall fail to pay to the
Insurer when due any amount payable by the Seller or the Depositor under
this Agreement, or the Trust Agreement, unless such amounts are paid in
full within the applicable cure period explicitly provided for under such
agreement; or
(c) the occurrence of an Event of Default under Section 9.01 of the
Servicing Agreement (as defined therein).
Section 5.02. Remedies; No Remedy Exclusive.
(a) Upon the occurrence of an Event of Default, the Insurer may
exercise any one or both of the rights and remedies set forth below:
(i) exercise any rights and remedies under this Agreement or
the Trust Agreement, as applicable, in accordance with their terms;
or
(ii) take whatever action at law or in equity as may appear
necessary or desirable in its judgment to collect the amounts then
due and thereafter to become due under this Agreement, or to enforce
performance and observance of any obligation, agreement or covenant
of the Seller or the Depositor under this Agreement, the Servicing
Agreement or the Trust Agreement, as applicable.
(b) Unless otherwise expressly provided, no remedy herein conferred
upon or reserved is intended to be exclusive of any other available
remedy, but each remedy shall be cumulative and shall be in addition to
other remedies given under the Transaction Documents or existing at law
or in equity. No delay or omission to exercise any right or power
accruing under the Transaction Documents upon the happening of any event
set forth in Section 5.01 hereof shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Insurer to exercise any remedy
reserved to the Insurer in this Article, it shall not be necessary to
give any notice, other than such notice as may be expressly required in
this Article.
Section 5.03. Waivers.
(a) No failure by any of the parties to exercise, and no delay by
any of the parties in exercising, any right hereunder shall operate as a
waiver thereof. The exercise by any of the parties of any right hereunder
shall not preclude the exercise of any other right, and the remedies
provided herein to each of the parties are declared in every case to be
cumulative and not exclusive of any remedies provided by law or equity.
(b) The Insurer shall have the right, to be exercised in its
complete discretion, to waive any Event of Default hereunder, by a
writing setting forth the terms, conditions and extent of such waiver
signed by the Insurer and delivered to the Seller and the Depositor.
Unless such writing expressly provides to the contrary, any waiver so
granted shall extend only to the specific event or occurrence which gave
rise to the Event of Default so waived and not to any other similar event
or occurrence which occurs subsequent to the date of such waiver.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendments, Changes and Modifications. This Agreement
may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by the Insurer, the Trustee, the
Seller and the Depositor. The Seller, the Depositor and the Insurer also agree
to provide prior written notification to Moody's and S&P of any amendment to
this Agreement.
Section 6.02. Notices. All demands, notices and other communications
to be given hereunder shall be in writing (except as otherwise specifically
provided herein) and shall be mailed by registered mail or personally
delivered or telecopied to the recipient as follows:
(a) To the Insurer:
MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Attention: Insured Portfolio Management-Structured Finance
(IPM-SF)
Structured Asset Securities Corporation
Mortgage Pass-Through
Certificates Series 1999-ALS2
Class A3 Certificates and Class A4 Certificates.
Telecopy No.: (914) 765-3810
Confirmation: (914) 765-3781
(in each case in which notice or other communication to the
Insurer refers to an Event of Default, a claim on the Policies
or with respect to which failure on the part of the Insurer to
respond shall be deemed to constitute consent or acceptance,
then a copy of such notice or other communication should also be
sent to the attention of each of the general counsel and the
Insurer and shall be marked to indicate "URGENT MATERIAL
ENCLOSED.")
(b) To the Depositor:
Structured Asset Securities Corporation
200 Vesey Street, 12th Floor
3 World Financial Center
New York, NY 10285
Attention: Mark Zusy
Telecopy No.: (212) 526-7209
Confirmation: (212) 526-7000
(c) To the Trustee:
The Chase Manhattan Bank
405 West 33rd Street, 14th Floor
New York, NY 10001
Attention: Capital Markets Fiduciary Services
Telecopy No.: (212) 945-3240
Confirmation: (212) 946-3045
(d) To the Seller:
Lehman Capital
200 Vesey Street, 12th Floor
3 World Financial Center
New York, NY 10285
Attention: Christopher Epes/Lehman Brothers (Legal)
Telecopy No.: (212) 526-3721
Confirmation: (212) 526-7000
Section 6.03. Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, the parties hereto agree that such holding shall not invalidate
or render unenforceable any other provision hereof. The parties hereto further
agree that the holding by any court of competent jurisdiction that any remedy
pursued by any party hereunder is unavailable or unenforceable shall not
affect in any way the ability of any party to pursue any other remedy
available to it.
Section 6.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6.05. Consent to Jurisdiction and Venue, Etc. The parties
hereto irrevocably (i) agree that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in a court of
record in the Borough of Manhattan, City of New York, State of New York or in
the Courts of the United States of America located in such state, (ii) consent
to the jurisdiction of each such court in any such suit, action or proceeding
and (iii) waive any objection which it may have to the laying of venue of any
such suit, action or proceeding in any of such courts and any claim that any
such suit, action or proceeding has been brought in an inconvenient forum.
Nothing in this Section 6.05 shall limit or affect the right of the
Insurer to serve legal process in any manner permitted by law or to start
legal proceedings relating to any Transaction Document against any party
hereto or its or their respective property in the courts of any jurisdiction.
Section 6.06. Consent of Insurer. In the event that the Insurer's
consent is required under the terms hereof or any term of the Trust Agreement,
it is understood and agreed that, except as otherwise provided expressly
herein or therein, the determination whether to grant or withhold such consent
shall be made solely by the Insurer in its absolute discretion. The Insurer
hereby agrees that it will respond to any request for consent in a timely
manner, taking into consideration the business of the Depositor.
Section 6.07. Counterparts. This Agreement may be executed in
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 6.08. Headings. The headings of sections contained in this
Agreement are provided for convenience only. They form no part of this
Agreement and shall not affect its construction or interpretation. All
references to sections or subsections of this Agreement refer to the
corresponding sections or subsections of this Agreement.
Section 6.09. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT, AMONG OTHER THINGS, THIS WAIVER.
Section 6.10. Entire Agreement. This Agreement and the Policies set
forth the entire agreement between the parties with respect to the subject
matter thereof, and this Agreement supersedes and replaces any agreement or
understanding that may have existed between the parties prior to the date
hereof in respect of such subject matter.
Section 6.11. Third Party Beneficiary. Each of the parties hereto
acknowledges that the Insurer shall be an express third party beneficiary of
the Trust Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all as of the day and year first above mentioned.
MBIA INSURANCE CORPORATION
By /s/ Lisa A. Wilson____________________________________
Title Assistant Secretary________________________________
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By /s/ Neal Leonard______________________________________
Title Managing Director__________________________________
LEHMAN CAPITAL, as Seller
By /s/ Joseph J. Kelly___________________________________
Title Authorized Signatory_______________________________
THE CHASE MANHATTAN BANK, as Trustee
By /s/ Kimberly K. Costa_________________________________
Title Assistant Vice President___________________________
Exhibit 99.1
Execution
==============================================================================
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of May 1, 1999
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Section Page
- ------- ----
<S> <C>
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
1.01. Sale of Mortgage Loans............................................................................1
1.02. Delivery of Documents.............................................................................2
1.03. Review of Documentation...........................................................................2
1.04. Representations and Warranties of Lehman Capital..................................................2
1.05. Grant Clause......................................................................................6
1.06 Assignment by Depositor............................................................................6
ARTICLE II
MISCELLANEOUS PROVISIONS
2.01. Binding Nature of Agreement; Assignment...........................................................7
2.02. Entire Agreement..................................................................................7
2.03. Amendment 7
2.04. Governing Law.....................................................................................8
2.05. Severability of Provisions........................................................................8
2.06. Indulgences; No Waivers...........................................................................8
2.07. Headings Not to Affect Interpretation.............................................................8
2.08. Benefits of Agreement.............................................................................8
2.09. Counterparts......................................................................................8
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
</TABLE>
<PAGE>
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT is executed by and
between Lehman Capital, A Division of Lehman Brothers Holdings Inc. ("Lehman
Capital"), and Structured Asset Securities Corporation (the "Depositor"),
dated as of the 1st day of May, 1999.
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Trust Agreement (the "Trust
Agreement"), dated as of May 1, 1999, among the Depositor, Aurora Loan
Services Inc., as Master Servicer, and The Chase Manhattan Bank, as Trustee
(the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified mortgage loan transfer
agreements (each a "Transfer Agreement", and together the "Transfer
Agreements"), Lehman Capital has purchased from certain transferors (each a
"Transferor", and together the "Transferors"), certain mortgage loans
identified on the Mortgage Loan Schedule attached hereto as Exhibit A:
1. Mortgage Loan Purchase and Warranties Agreement, dated as of
November 30, 1999, between Lehman Capital and Headlands Mortgage
Company; and
2. Loan Purchase Agreement (Servicing Released), dated March 23, 1999,
between Lehman Capital and Aurora Loan Services Inc.
WHEREAS, each Transfer Agreement permits the purchaser to assign its
rights and interests in such agreement and to delegate its obligations
thereunder;
WHEREAS, Lehman Capital desires to sell, without recourse, all of its
right, title and interest in the Mortgage Loans to the Depositor, to assign
all of its rights and interest under each Transfer Agreement, and to delegate
all of its obligations thereunder, to the Depositor; and
WHEREAS, Lehman Capital and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and delegate all of its obligations
hereunder to the Trustee, and that each reference herein to the Depositor is
intended, unless otherwise specified, to mean the Depositor or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lehman Capital and the Depositor agree as
follows:
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans. Concurrently with the execution and
delivery of this Agreement, Lehman Capital does hereby transfer, assign, set
over, deposit with and otherwise convey to the Depositor, without recourse,
subject to Sections 1.03 and 1.04, all the right, title and interest of Lehman
Capital in and to the Mortgage Loans identified on Schedule A hereto, having
an aggregate principal balance as of the Cut-off Date of $364,365,016.16. Such
conveyance includes, without limitation, the right to all distributions of
principal and interest received on or with respect to the Mortgage Loans on or
after May 1, 1999 (other than payments of principal and interest due on or
before such date), and all such payments due after such date but received
prior to such date and intended by the related Mortgagors to be applied after
such date, together with all of Lehman Capital's right, title and interest in
and to each related account and all amounts from time to time credited to and
the proceeds of such account, any REO Property and the proceeds thereof,
Lehman Capital's rights under any Insurance Policies related to the Mortgage
Loans, and Lehman Capital's security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any
Additional Collateral.
Concurrently with the execution and delivery of this Agreement, Lehman
Capital hereby assigns to the Depositor all of its rights and interest under
each Transfer Agreement, and delegates to the Depositor all of its obligations
thereunder. Concurrently with the execution hereof, the Depositor tenders the
purchase price of $364,365,016.16. The Depositor hereby accepts such
assignment and delegation, and shall be entitled to exercise all such rights
of Lehman Capital under each Transfer Agreement, as if the Depositor had been
a party to each Transfer Agreement.
Section 1.02. Delivery of Documents. (a) In connection with such transfer
and assignment of the Mortgage Loans hereunder, Lehman Capital does hereby
deliver, or cause to be delivered, to the Depositor (or its designee) the
documents or instruments with respect to each Mortgage Loan (each a "Mortgage
File") so transferred and assigned, as specified in the applicable Transfer
Agreement.
(b) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, Lehman Capital, in lieu of
delivering the related Mortgage Files, herewith delivers to the Depositor an
Officer's Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the account maintained by the Servicer for such purpose have been
so deposited.
Section 1.03. Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by LaSalle National Bank, as custodian or U.S. Bank Trust National
Association, as custodian (each, a "Custodian"), as applicable, for the
Depositor. The applicable Custodian is required to review, within 45 days
following the Closing Date, each applicable Mortgage File. If in the course of
such review the applicable Custodian identifies any Material Defect, Lehman
Capital shall be obligated to cure such defect or to repurchase the related
Mortgage Loan from the Depositor (or, at the direction of and on behalf of the
Depositor, from the Trust Fund), or to substitute a Qualifying Substitute
Mortgage Loan therefor, in each case to the same extent and in the same manner
as the Depositor is obligated to the Trustee and the Trust Fund under Section
2.02(c) of the Trust Agreement.
Section 1.04. Representations and Warranties of Lehman Capital. (a)
Lehman Capital hereby represents and warrants to the Depositor that as of the
date hereof that:
(i) Lehman Capital is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property,
to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by Lehman Capital of this
Agreement have been duly authorized by all necessary corporate action on
the part of Lehman Capital; 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 Lehman Capital or its properties or the certificate of incorporation
or bylaws of Lehman Capital;
(iii) the execution, delivery and performance by Lehman Capital
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by
Lehman Capital and, assuming due authorization, execution and delivery by
the Depositor, constitutes a valid and binding obligation of Lehman
Capital enforceable against it in accordance with its terms except as
such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and
(v) there are no actions, suits or proceedings pending or, to
the knowledge of Lehman Capital, threatened or likely to be asserted
against or affecting Lehman Capital, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of Lehman Capital will
be determined adversely to Lehman Capital and will if determined
adversely to Lehman Capital materially and adversely affect it or its
business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement.
(b) The representations and warranties of each Transferor with respect to
the Mortgage Loans in the applicable Transfer Agreement were made as of the
date of such Transfer Agreement. To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of a Transferor under the applicable Transfer
Agreement and (ii) a representation or warranty of Lehman Capital under this
Agreement, the only right or remedy of the Depositor shall be the right to
enforce the obligations of such Transferor under any applicable representation
or warranty made by it. The Depositor acknowledges and agrees that the
representations and warranties of Lehman Capital in this Section 1.04(b) are
applicable only to facts, conditions or events that do not constitute a breach
of any representation or warranty made by the related Transferor in the
applicable Transfer Agreement. Lehman Capital shall have no obligation or
liability with respect to any breach of a representation or warranty made by
it with respect to the Mortgage Loans if the fact, condition or event
constituting such breach also constitutes a breach of a representation or
warranty made by the related Transferor in such Transfer Agreement, without
regard to whether the related Transferor fulfills its contractual obligations
in respect of such representation or warranty. Subject to the foregoing,
Lehman Capital represents and warrants upon delivery of the Mortgage Loans to
the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage
Loans on the Mortgage Loan Schedule provides an accurate listing of the
Mortgage Loans, and the information with respect to each Mortgage Loan on
the Mortgage Loan Schedule is true and correct in all material respects
at the date or dates respecting which such information is given;
(ii) There are no defaults in complying with the terms of any
Mortgage, and Lehman Capital has no notice as to any taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents which previously became due and owing
but which have not been paid;
(iii) Except in the case of Cooperative Loans, each Mortgage
requires all buildings or other improvements on the related Mortgaged
Property to be insured by a generally acceptable insurer against loss by
fire, hazards of extended coverage and such other hazards as are
customary in the area where the related Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of the
guidelines of FNMA or FHLMC. If upon origination of the Mortgage Loan,
the Mortgaged Property was in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current guidelines of
the Federal Flood Insurance Administration is in effect which policy
conforms to the requirements of the current guidelines of the Federal
Flood Insurance Administration. Each Mortgage obligates the related
Mortgagor thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or regulation,
each Mortgagor has been given an opportunity to choose the carrier of the
required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common facilities of a
planned unit development. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and will
be in full force and effect and inure to the benefit of the Depositor
upon the consummation of the transactions contemplated by this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled,
subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or
in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or recision;
(v) Each Mortgage evidences a valid, subsisting, enforceable
and perfected first lien on the related Mortgaged Property (including all
improvements on the Mortgaged Property). The lien of the Mortgage is
subject only to: (1) liens of current real property taxes and assessments
not yet due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute, (2)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage acceptable to mortgage lending institutions in the area in which
the related Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of title and
abstract of title delivered to the originator of such Mortgage Loan, and
(3) such other matters to which like properties are commonly subject
which do not, individually or in the aggregate, materially interfere with
the benefits of the security intended to be provided by the Mortgage. Any
security agreement, chattel mortgage or equivalent document related to,
and delivered to the Trustee in connection with, a Mortgage Loan
establishes a valid, subsisting and enforceable first lien on the
property described therein and the Depositor has full right to sell and
assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the
Mortgage Loans to the Depositor, Lehman Capital was the sole owner of
record and holder of each Mortgage Loan, and Lehman Capital had good and
marketable title thereto, and has full right to transfer and sell each
Mortgage Loan to the Depositor free and clear, except as described in
paragraph (v) above, of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority, subject to no interest or participation of, or agreement with,
any other party, to sell and assign each Mortgage Loan pursuant to this
Agreement;
(vii) Each Mortgage Loan other than any Cooperative Loan is
covered by either (i) an attorney's opinion of title and abstract of
title the form and substance of which is generally acceptable to mortgage
lending institutions originating mortgage loans in the locality where the
related Mortgaged Property is located or (ii) an ALTA mortgagee 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 the
originator of the Mortgage Loan, and its successors and assigns, as to
the first priority lien of the Mortgage in the original principal amount
of the Mortgage Loan (subject only to the exceptions described in
paragraph (v) above). If the Mortgaged Property is a condominium unit
located in a state in which a title insurer will generally issue an
endorsement, then the related Title Insurance Policy contains an
endorsement insuring the validity of the creation of the condominium form
of ownership with respect to the project in which such unit is located.
With respect to any Title Insurance Policy, the originator is the sole
insured of such mortgagee Title Insurance Policy, such mortgagee Title
Insurance Policy is in full force and effect and will inure to the
benefit of the Depositor upon the consummation of the transactions
contemplated by this Agreement, no claims have been made under such
mortgagee Title Insurance Policy and no prior holder of the related
Mortgage, including Lehman Capital, has done, by act or omission,
anything that would impair the coverage of such mortgagee Title Insurance
Policy;
(viii) To the best of Lehman Capital's knowledge, no
foreclosure action is being threatened or commenced with respect to any
Mortgage Loan. There is no proceeding pending for the total or partial
condemnation of any Mortgaged Property (or, in the case of a Cooperative
Loan, the related cooperative unit) and each such property is undamaged
by waste, fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty, so as to have a material adverse effect on the value
of the related Mortgaged Property as security for the related Mortgage
Loan or the use for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by 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, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act; and
(xi) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg. Section .1.860G-2.
It is understood and agreed that the representations and warranties set
forth herein survive delivery of the Mortgage Files and the Assignment of
Mortgage of each Mortgage Loan to the Depositor. Upon discovery by either
Lehman Capital or the Depositor of a breach of any of the foregoing
representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, and that does not also constitute a breach of a
representation or warranty of the related Transferor in the applicable
Transfer Agreement, the party discovering such breach shall give prompt
written notice to the other party. Within 60 days of the discovery of any such
breach, Lehman Capital shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in
respect thereof from the Depositor at the applicable Purchase Price or (c)
within the two year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan.
Section 1.05. Grant Clause. It is intended that the conveyance of Lehman
Capital's right, title and interest in and to Mortgage Loans and other
property conveyed pursuant to this Agreement shall constitute, and shall be
construed as, a sale of such property and not a grant of a security interest
to secure a loan. However, if such conveyance is deemed to be in respect of a
loan, it is intended that: (1) the rights and obligations of the parties shall
be established pursuant to the terms of this Agreement; (2) Lehman Capital
hereby grants to the Depositor a first priority security interest in all of
Lehman Capital's right, title and interest in, to and under, whether now owned
or hereafter acquired, such Mortgage Loans and other property; and (3) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Depositor. The Depositor shall have the
right, upon notice to but without the consent of Lehman Capital, to assign, in
whole or in part, its interest under this Agreement with respect to the
Mortgage Loans to the Trustee, and the Trustee then shall succeed to all
rights of the Depositor under this Agreement. All references to the Depositor
in this Agreement shall be deemed to include its assignee or designee,
specifically including the Trustee.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 2.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 2.03. Amendment. (a) This Agreement may be amended from time to
time by Lehman Capital and the Depositor, without notice to or the consent of
any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund, the Trust Agreement or
this Agreement in any Offering Document; or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions
arising under this Agreement or (iv) to add, delete, or amend any provisions
to the extent necessary or desirable to comply with any requirements imposed
by the Code and the REMIC Provisions. No such amendment effected pursuant to
clause (iii) of the preceding sentence shall adversely affect in any material
respect the interests of any Holder. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to reduce the then current rating assigned to the
Certificates (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor).
(b) This Agreement may also be amended from time to time by Lehman
Capital and the Depositor with the consent of the Holders of not less than
66-2/3% of the Class Certificate Principal Amount (or Percentage Interest) of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate without, the consent of the
Holder of such Certificate or (ii) reduce the aforesaid percentages of Class
Certificate Principal Amount (or Percentage Interest) of Certificates of each
Class, the Holders of which are required to consent to any such amendment
without the consent of the Holders of 100% of the Class Certificate Principal
Amount (or Percentage Interest) of each Class of Certificates affected
thereby. For purposes of this paragraph, references to "Holder" or "Holders"
shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) It shall not be necessary for the consent of Holders under this
Section 2.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 2.06. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 2.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 2.08. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to any Person, other than the parties to this Agreement
and their successors hereunder, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement.
Section 2.09. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, Lehman Capital and the Depositor have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Joseph J. Kelly
---------------------------------
Name: Joseph J. Kelly
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Stanley Labanowski
---------------------------------
Name: Stanley Labanowski
Title: Vice President
<PAGE>
SCHEDULE A
MORTGAGE LOAN SCHEDULE
Exhibit 99.2 for EDGAR purposes
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of May, 1999, by and between LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation ("Lehman Capital"), and AURORA LOAN
SERVICES INC., a Delaware corporation ("the Servicer"), recites and provides as
follows:
RECITALS
WHEREAS, Lehman Capital has conveyed certain Mortgage Loans identified on
Schedule I hereto (the "Serviced Mortgage Loans") on a servicing-retained basis
to Structured Asset Securities Corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to The Chase Manhattan Bank, as trustee
(the "Trustee") under a trust agreement dated as of May 1, 1999 (the "Trust
Agreement"), among the Trustee, Aurora Loan Services Inc., as master servicer
("Aurora," and together with any successor Master Servicer appointed pursuant
to the provisions of the Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, Lehman Capital continues to own the servicing rights to the
Serviced Mortgage Loans, and may freely transfer such rights, subject to the
terms hereof.
WHEREAS, Lehman Capital desires that the Servicer service the Serviced
Mortgage Loans, and the Servicer has agreed to do so, subject to the right of
Lehman Capital to terminate the rights and obligations of the Servicer
hereunder at any time and to the other conditions set forth herein.
WHEREAS, Aurora, acting as Master Servicer, and any successor Master
Servicer shall be obligated, among other things, to supervise the servicing of
the Serviced Mortgage Loans on behalf of the Trustee, and shall have the right,
under certain circumstances, to terminate the rights and obligations of the
Servicer under this Servicing Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lehman Capital and the Servicer hereby agree
as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this Agreement,
including Exhibit A hereto and any provisions of the Flow Servicing Agreement
dated as of September 1, 1997, between Lehman Capital and the Servicer (the
"Flow Servicing Agreement") incorporated by reference herein, shall have the
meanings ascribed to such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Serviced Mortgage
Loans, to perform and observe the duties, responsibilities and obligations that
are to be performed and observed under the provisions of the Flow Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the Flow Servicing Agreement, as so modified, are and
shall be a part of this Agreement to the same extent as if set forth herein in
full.
3. Master Servicing; Termination of Servicer. The Servicer, including any
successor servicer hereunder, shall be subject to the supervision of the Master
Servicer, which Master Servicer shall be obligated to ensure that the Servicer
services the Serviced Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee pursuant to the
Trust Agreement, shall have the same rights as the "Owner" (as defined in the
Flow Servicing Agreement) to enforce the obligations of the Servicer under the
Flow Servicing Agreement. In addition, all of the representations, warranties,
covenants, agreements and indemnities made by the Servicer (or by any successor
servicer) to the "Owner" under the Flow Servicing Agreement are hereby deemed
made to the Master Servicer as if the Master Servicer were the "Owner" and all
such representations, warranties, covenants, agreements and indemnities shall
inure to the benefit of the Master Servicer; provided, however, that
notwithstanding the foregoing, the Master Servicer shall have (i) no right or
interest in the "Reconstituted Termination Fee" referred to in Section 7.06 of
the Flow Servicing or the "Additional Remittance" referred to in Section 7.07
of the Flow Servicing Agreement and (ii) no right to terminate the Servicer,
except as expressly set forth herein. Nothing contained herein is intended to
result in the creation or assumption by the Master Servicer of any obligation
of the "Owner" or any Person under the Flow Servicing Agreement or any other
agreement or instrument relating thereto except as specifically set forth
herein. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, as provided in
Article IX of the Flow Servicing Agreement.
In addition, in the event that Lehman Capital transfers the servicing
rights in respect of the Serviced Mortgage Loans to one or more successor
servicers, the rights and obligations of the Servicer under this Agreement
shall terminate, at the sole option of Lehman Capital, without cause, upon
thirty days written notice to the Servicer, and each successor servicer shall
succeed to the rights and obligations of the Servicer under this Agreement as
of such date. Upon such termination the terminated Servicer shall not be
entitled to the Reconstituted Servicing Fee or any portion thereof, or, except
as provided in the Flow Servicing Agreement, to any other amounts in respect of
the Serviced Mortgage Loans.
The Servicer agrees that, notwithstanding anything to the contrary in the
Flow Servicing Agreement, Lehman Capital is the sole owner of the servicing
rights relating to the Serviced Mortgaged Loans, and the Servicer shall have no
right to transfer the servicing thereof.
4. No Representations. Neither the Servicer nor the Master Servicer shall
be obligated or required to make any representations and warranties regarding
the Serviced Mortgage Loans in connection with the transactions contemplated by
the Trust Agreement and issuance of the certificates issued pursuant thereto.
5. Notices. All notices and communications between or among the parties
hereto shall be in writing and shall be deemed received or given when mailed
first-class mail, postage prepaid, addressed to each other party at its address
specified below. Each party may designate to the other parties in writing, from
time to time, other addresses to which notices and communications hereunder
shall be sent.
6. Governing Law. THIS SERVICING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
8. Reconstitution. Lehman Capital and the Servicer agree that this
Agreement is a Reconstitution Agreement, and that the date hereof is the
Reconstitution Date, each as defined in the Flow Servicing Agreement.
9. Notices and Remittances to the Master Servicer. All notices required to
be delivered to the Owner or the Master Servicer under this Agreement shall be
delivered to the Master Servicer at the following address:
Aurora Loan Services Inc.
2530 South Parker Road
Suite 601
Aurora, Colorado
Attn: Master Servicing Department, SASCO 1999-ALS2
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
The Chase Manhattan Bank
New York, New York
ABA#: 021-000-021
Account Name: Aurora Loan Services Inc. Master Servicing
Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 1999-ALS2
10. Errors and Omissions Insurance. The Servicer shall keep in force during
the term of this Agreement a fidelity bond and a policy or policies of insurance
covering errors and omissions in the performance of the Servicer's obligations
under this Agreement. Such fidelity bond and policy or policies shall be
maintained with recognized insurers and shall be in such form and amount as
would permit the Servicer to be qualified as a FNMA or FHLMC seller-servicer.
The Servicer shall be deemed to have complied with this provision if an
affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. The Servicer shall furnish
to the Master Servicer a copy of each such bond and insurance policy if (i) the
Master Servicer so requests and (ii) the Servicer is not an affiliate of Lehman
Brothers Inc. at the time of such request.
11. Annual Audit Report. On or before April 30 of each year, beginning
with April 30, 2000, Servicer shall cause a firm of independent public
accountants (who may also render other services to Servicer), which is a member
of the American Institute of Certified Public Accountants, to furnish a
statement to Owner and Master Servicer, to the effect that such firm has
examined certain documents and records for the preceding fiscal year (or during
the period from the date of commencement of such servicer's duties hereunder
until the end of such preceding fiscal year in the case of the first such
certificate) and that, on the basis of such examination conducted substantially
in compliance with the Uniform Single Attestation Program for Mortgage Bankers,
such firm is of the opinion that Servicer's overall servicing operations have
been conducted in compliance with the Uniform Single Attestation Program for
Mortgage Bankers except for such exceptions that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers requires it to
report, in which case such exceptions shall be set forth in such statement.
12. Annual Officer's Certificate. On or before April 30 of each year,
beginning with April 30, 2000, the Servicer, at its own expense, will deliver
to the Owner and Master Servicer a Servicing Officer's certificate stating, as
to each signer thereof, that (i) a review of the activities of the Servicer
during such preceding fiscal year and of performance under this Agreement has
been made under such officers' supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has been a default
in the fulfillment of all such obligations, specifying each such default known
to such officers and the nature and status thereof including the steps being
taken by the Servicer to remedy such default.
<PAGE>
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Joseph J. Kelly
-----------------------------------
Name: Joseph J. Kelly
Title: Authorized Signatory
AURORA LOAN SERVICES INC.
By: /s/ Leo C. Trautman, Jr.
-----------------------------------
Name: Leo C. Trautman, Jr.
Title: Executive Vice President
<PAGE>
EXHIBIT A
Modifications to the Flow Servicing Agreement
1. The following is hereby added immediately following the words "incidental
fees and charges" in the definition of "Ancillary Income" in Article I: ",
but not including any premium or penalty associated with a prepayment of
principal of a Mortgage Loan."
2. The definition of "Custodial Agreement" in Article I is hereby deleted and
replaced with the following:
"The custodial agreements relating to custody of the Serviced
Mortgage Loans among: (i) LaSalle National Bank, as Custodian, The Chase
Manhattan Bank, as Trustee, and Structured Asset Securities Corporation
and (ii) U.S. Bank Trust National Association, as Custodian, The Chase
Manhattan Bank, as Trustee, and Structured Asset Securities Corporation,
each dated as of May 1, 1999."
3. The definition of "Custodian" in Article I is hereby deleted and replaced
with the following:
"Either of LaSalle National Bank, as Custodian pursuant to a
Custodial Agreement, and any successor thereto, or U.S. Bank Trust
National Association, as Custodian pursuant to a Custodial Agreement, and
any successor thereto, as applicable."
4. The following definition is hereby added:
"MERS Eligible Mortgage Loan: Any Mortgage Loan that has been
designated by the Servicer as recordable in the name of MERS."
5. The definition of "Monthly Advance" in Article I is hereby amended by
adding at the end of such definition the following: ", but only to the
extent that such amount is expected, in the reasonable judgment of the
Servicer, to be recoverable from collections or other recoveries in
respect of such Mortgage Loan."
6. The following definition is hereby added:
"Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
Eligible Mortgage Loan."
7. The following definition is hereby added:
"Prepayment Interest Excess Amount: With respect to any Principal
Prepayment in full of a Mortgage Loan received from the first day through
the sixteenth day of any calendar month, all amounts paid in respect of
interest on such Principal Prepayment."
8. The definition of "Prepayment Interest Shortfall Amount" is hereby deleted
and replaced with the following:
"Prepayment Interest Shortfall Amount: With respect to (x) any
Principal Prepayment in part (other than any such prepayment received on
the first of the month) and (y) any Principal Prepayment in full received
on or after the seventeenth day of the month preceding the month of such
Distribution Date, but on or before the last day of the month preceding
the month of such Distribution Date, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Reconstituted
Servicing Fee, on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment and (ii) the amount of interest
actually received with respect to such Mortgage Loan in connection with
such Principal Prepayment."
9. The following definition is hereby added:
"Prepayment Period: With respect to any Distribution Date and a
partial Principal Prepayment, the period from the second day of the month
preceding the month of such Distribution Date to the first day of the
month of such Distribution Date. With respect to any Distribution Date and
a full Principal Prepayment, the period from the seventeenth day of the
month preceding the month of such Distribution Date to the sixteenth day
of the month of such Distribution Date."
10. The definition of "Qualified Depository" in Article I is hereby deleted
and replaced with the following:
"Any of (i) a depository the accounts of which are insured by the
FDIC and the debt obligations of which are rated AA or better by Fitch and
S&P; (ii) the corporate trust department of any bank the debt obligations
of which are rated at least A-1 or its equivalent by each of Fitch and
S&P; or (iii) the Servicer, unless the Master Servicer is notified by
either Fitch or S&P that the designation of the Servicer as a Qualified
Depository will result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates."
11. The following definition is hereby added:
"Reconstituted Servicing Fee: An amount equal to (1) one-twelfth the
product of (a) a rate per annum equal to 0.25% and (b) the outstanding
principal balance of such Mortgage Loan and (2) any Prepayment Interest
Excess Amounts. The obligation of the Master Servicer to pay the
Reconstituted Servicing Fee is limited to, and the Reconstituted Servicing
Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds to the extent permitted
by Section 3.02 of this Agreement) of such Monthly Payment collected by
the Servicer, or as otherwise provided under this Agreement."
12. The definition of "Remittance Date" in Article I is hereby deleted and
replaced with the following:
"The 18th day (or if such 18th day is not a Business Day, the first
Business Day immediately preceding) of any month, following the First
Remittance Date."
13. The definition of "Servicing Fee" in Article I is hereby deleted.
14. Section 2.02 is hereby deleted and replaced with the following paragraphs:
"Section 2.02 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable after the
Closing Date (but in no event more than 90 days thereafter except to the
extent delays are caused by the applicable recording office), the
Servicer, at the expense of the Depositor, shall cause the Mortgage, with
respect to each MERS Eligible Mortgage Loan, to be properly recorded in
the name of MERS in the public recording office in the applicable
jurisdiction, or shall ascertain that such have previously been so
recorded.
(b) Record title to each Non-MERS Eligible Mortgage Loan and the
related Mortgage Note shall be in the name of the Trustee. Subject to
Section 3.01(a) hereof, Assignments of Mortgage shall be recorded as to
each Non-MERS Mortgage Loan unless instructions to the contrary are
delivered to the Servicer, in writing, by the Trustee. Subject to the
preceding sentence, as soon as practicable after the Closing Date (but in
no event more than 90 days thereafter except to the extent delays are
caused by the applicable recording office), the Servicer, at the expense
of the Depositor, shall cause to be properly recorded in each public
recording office where such Non-MERS Eligible Mortgage Loans are recorded
each Assignment of Mortgage. Additionally, the Servicer shall prepare and
execute, at the direction of the Trustee, any note endorsements.
(c) All rights arising out of the Mortgage Loans shall be vested in the
Trustee. All funds received on or in connection with a Mortgage Loan shall
be received and held by the Servicer in trust for the benefit of the
Trustee pursuant to the terms of this Agreement."
15. Section 3.01(a) is hereby deleted and replaced with the following
paragraph:
"(a) The Servicer shall (A) record or cause to be recorded the
Mortgage, with respect to all MERS Eligible Mortgage Loans, in the name of
MERS, or shall ascertain that such have previously been so recorded; (B)
prepare or cause to be prepared all Assignments of Mortgage with respect
to all Non-MERS Eligible Mortgage Loans; (C) record or cause to be
recorded, subject to Section 2.02(b) hereof, all Assignments of Mortgage
with respect to Non-MERS Mortgage Loans in the name of the Trustee; (D)
pay the recording costs pursuant to Section 2.02 hereof; and/or (E) track
such Assignments of Mortgage to ensure they have been recorded. After the
expenses of such recording costs pursuant to Section 2.02 hereof shall
have been paid by the Servicer, the Servicer shall submit to the Depositor
a reasonably detailed invoice for reimbursement of recording costs it
incurred hereunder."
16. The fourth and fifth paragraphs of Section 3.01 are hereby deleted and
replaced with the following paragraph:
"Consistent with the terms of this Agreement, the Servicer may waive
any late payment charge, assumption fee or other fee that may be collected
in the ordinary course of servicing the Mortgage Loans. The Servicer shall
not make any future advances to any obligor under any Mortgage Loan, and
(unless the Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Servicer, reasonably foreseeable)
the Servicer shall not permit any modification of any material term of any
Mortgage Loan, including any modification that would change the Mortgage
Interest Rate, defer or forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual
payments of principal) or change the final maturity date on such Mortgage
Loan. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan, the Servicer shall,
on the Business Day immediately preceding the Remittance Date in any month
in which any such principal or interest payment has been deferred, make a
Monthly Advance in accordance with Section 4.03, in an amount equal to the
difference between (a) such month's principal and one month's interest at
the Remittance Rate on the unpaid principal balance of such Mortgage Loan
and (b) the amount paid by the Mortgagor. The Servicer shall be entitled
to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 4.03. Without limiting the generality of
the foregoing, the Servicer shall continue, and is hereby authorized and
empowered, to execute and deliver on behalf of itself and the Master
Servicer, all instruments of satisfaction or cancellation, or of partial
or full release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged
Properties. Upon the request of the Servicer, the Master Servicer shall
execute and deliver to the Servicer any powers of attorney and other
documents, furnished to it by the Servicer and reasonably satisfactory to
the Master Servicer, necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the
Servicer shall not waive any premium or penalty in connection with a
prepayment of principal of any Mortgage Loan, and shall not consent to the
modification of any Mortgage Note to the extent that such modification
relates to payment of a prepayment premium or penalty."
17. The words "Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.03 are hereby deleted and
replaced with the following: "Aurora Loan Services Inc., as master
servicer for SASCO 1999-ALS2."
18. Section 3.04 is amended by deleting the word "and" at the end of clause
(v), replacing the period at the end of clause (vi) with "; and", and
adding the following immediately following clauses (vii) and (viii):
"(vii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 7.03, it being understood that, in the case
of any such reimbursement, the Servicer's right thereto shall be prior to
the rights of the Trust Fund;
(viii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Reconstituted Servicing Fees, the Servicer's right to
reimburse itself pursuant to this subclause (viii) with respect to any
Mortgage Loan being limited to related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds and other amounts
received in respect of the related REO Property, and such other amounts as
may be collected by the Servicer from the Mortgagor or otherwise relating
to the Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights
of the Purchaser;"
19. The words "Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.05 are hereby deleted and
replaced with the following: "Aurora Loan Services Inc., as master
servicer for SASCO 1999-ALS2."
20. All references in Section 3.11 to the disposition of REO Properties within
a two year period are hereby deleted and replaced with a three year
period.
The following paragraph shall be inserted immediately after the
second paragraph in Section 3.11:
Notwithstanding anything to the contrary contained in this Section
3.11, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, or if the Owner otherwise requests, an environmental inspection
or review of such Mortgaged Property to be conducted by a qualified
inspector shall be arranged by the Servicer. Upon completion of the
inspection, the Servicer shall provide the Owner with a written report of
such environmental inspection. In the event that the environmental
inspection report indicates that the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not proceed
with foreclosure or acceptance of a deed in lieu of foreclosure and the
Servicer shall be reimbursed for all Servicing Advances made with respect
to the related Mortgaged Property from the Custodial Account. 21. The
following Section 3.13 is hereby added:
"Section 3.13 MERS.
(a) The Servicer shall take such actions as are necessary to cause the
Trustee to be clearly identified as the owner of each MERS Mortgage Loan
on the records of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
(b) The Servicer shall maintain in good standing its membership in
MERS. In addition, the Servicer shall comply with all rules, policies and
procedures of MERS, including the Rules of Membership, as amended, and the
MERS Procedures Manual, as amended.
(c) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall promptly notify MERS as to any transfer of beneficial
ownership or release of any security interest in such Mortgage Loans.
(d) With respect to all MERS Mortgage Loans serviced hereunder, the
Servicer shall notify MERS as to any transfer of servicing pursuant to
Section 10.01 within 10 Business Days of such transfer of servicing. The
Servicer shall cooperate with the Trustee, the Master Servicer and any
successor servicer to the extent necessary to ensure that such transfer of
servicing is appropriately reflected on the MERS system."
22. The first paragraph of Section 4.01 is hereby deleted and replaced with
the following:
"On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the Master Servicer (a) all amounts
deposited in the Custodial Account as of the close of business on the last
day of the related Due Period (net of charges against or withdrawals from
the Custodial Account pursuant to Section 3.04), plus (b) all amounts, if
any, which the Servicer is obligated to distribute pursuant to Section
7.03, minus (c) any amounts attributable to Principal Prepayments,
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or REO
Disposition Proceeds received after the applicable Prepayment Period,
which amounts shall be remitted on the following Remittance Date, together
with any additional interest required to be deposited in the Custodial
Account in connection with such Principal Prepayment in accordance with
Section 7.03, and minus (d) any amounts attributable to Monthly Payments
collected but due on a due date or dates subsequent to the first day of
the month in which such Remittance Date occurs, which amounts shall be
remitted on the Remittance Date next succeeding the Due Period for such
amounts."
23. Section 4.02 is hereby amended by deleting the words "Remittance Date" in
the first line of such Section, and substituting the following: "eleventh
Business Day of each month"
24. The third paragraph of Section 5.01 is hereby deleted.
25. Section 5.02 is hereby deleted.
26. All references to the "Servicing Fee" (other than the definition of
"Servicing Fee" in Article I) shall be deemed to refer to the
"Reconstituted Servicing Fee" pursuant to Section 7.03.
27. Section 9.01(ix) is deleted in its entirety.
28. The following paragraph is added at the end of Section 10.01:
"Neither the Master Servicer nor any successor servicer (including
the Owner and the Master Servicer) shall be liable for any acts or
omissions of the Servicer or any predecessor servicer. In particular,
neither the Master Servicer nor any successor servicer (including the
Owner and the Master Servicer) shall be liable for any servicing errors or
interruptions resulting from any failure of the Servicer to maintain
computer and other information systems that are year-2000 compliant."
29. The following words are hereby added after the words "Attention: Rick
Skogg" in Section 10.06(ii):
"with a copy to:
Aurora Loan Services Inc.
601 Fifth Avenue
P.O. Box 1706
Scottsbluff, Nebraska 69361
Telephone No.: (308) 635-3500
Telecopier No.: (308) 632-4287
Attention: Leo C. Trautman, Jr."
