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)
February 9, 2000
STRUCTURED ASSET SECURITIES CORPORATION (as Depositor under the Trust
Agreement, dated as of January 1, 2000, providing for the issuance of
Amortizing Residential Collateral Mortgage Pass-Through Certificates,
Series 2000-BC1)
Structured Asset Securities Corporation
---------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 333-68513-10 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
- ------------------------------- ---------
(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 Amortizing Residential Collateral
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 $1,353,485,000 in aggregate principal amount of Class A1,
Class A2, Class M1, Class M2, Class B, Class P, Class X and Class R
Certificates of its Amortizing Residential Collateral Mortgage Pass-Through
Certificates, Series 2000-BC1 on February 9, 2000. 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 February 7, 2000 (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 January 1, 2000,
among Structured Asset Securities Corporation, as depositor (the "Depositor"),
Norwest Bank Minnesota, National Association as master servicer (the "Master
Servicer"), and First Union National Bank, as trustee (the "Trustee"). The
"Certificates" consist of the following classes: Class A1, Class A2, Class M1,
Class M2, Class B, Class P, Class X and Class R. The Certificates evidence all
the beneficial ownership interest in a trust fund (the "Trust Fund") that
consists primarily of two pools of certain conventional, fixed and adjustable
rate, fully amortizing and balloon, first and second lien residential mortgage
loans (the "Mortgage Loans") with an aggregate outstanding principal balance
of $1,353,485,647.72 as of January 1, 2000 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 February 7, 2000, between Structured
Asset Securities Corporation, as Depositor, and Lehman Brothers
Inc., as the Underwriter.
4.1 Trust Agreement, dated as of January 1, 2000, between
Structured Asset Securities Corporation, as Depositor, Norwest
Bank Minnesota, National Association, as Master Servicer, and
First Union National Bank, as Trustee.
99.1 Mortgage Loan Sale and Assignment Agreement, dated as of
January 1, 2000, 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 January 1, 2000, between
Lehman Capital, A Division of Lehman Brothers Holdings Inc., as
Seller, and Aurora Loan Services Inc., as Servicer.
99.3 Reconstituted Servicing Agreement, dated as of January 1, 2000,
between Lehman Capital, A Division of Lehman Brothers Holdings
Inc., as Seller, and Option One Mortgage Corporation, as
Servicer.
99.4 Reconstituted Servicing Agreement, dated as of January 1, 2000,
between Lehman Capital, A Division of Lehman Brothers Holdings
Inc., as Seller, and Ocwen Federal Bank FSB, as Servicer.
99.5 Reconstituted Servicing Agreement, dated as of January 1, 2000,
between Lehman Capital, A Division of Lehman Brothers Holdings
Inc., as Seller, and Ameriquest Mortgage Company, as Servicer.
99.6 Reconstituted Servicing Agreement, dated as of January 1, 2000,
between Lehman Capital, A Division of Lehman Brothers Holdings
Inc., as Seller, and Life Bank, 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/ Stanley Labanowski
----------------------------
Name: Stanley Labanowski
Title: Vice President
Dated: February 18, 2000
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
1.1 Terms Agreement, dated February 7,
2000, between Structured Asset
Securities Corporation, as
Depositor, and Lehman Brothers
Inc., as the Underwriter.
4.1 Trust Agreement, dated as of
January 1, 2000, between Structured
Asset Securities Corporation, as
Depositor, Aurora Loan Services
Inc., as Master Servicer, and U.S.
Bank National Association, as
Trustee.
99.1 Mortgage Loan Sale and Assignment
Agreement, dated as of January 1,
2000, 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
January 1, 2000, between Lehman
Capital, A Division of Lehman
Brothers Holdings Inc., as Seller,
and Aurora Loan Services Inc., as
Servicer.
99.3 Reconstituted Servicing Agreement,
dated as of January 1, 2000,
between Lehman Capital, A Division
of Lehman Brothers Holdings Inc.,
as Seller, and Option One Mortgage
Corporation, as Servicer.
99.4 Reconstituted Servicing Agreement,
dated as of January 1, 2000,
between Lehman Capital, A Division
of Lehman Brothers Holdings Inc.,
as Seller, and Ocwen Federal Bank
FSB, as Servicer.
99.5 Reconstituted Servicing Agreement,
dated as of January 1, 2000,
between Lehman Capital, A Division
of Lehman Brothers Holdings Inc.,
as Seller, and Ameriquest Mortgage
Company, as Servicer.
99.6 Reconstituted Servicing Agreement,
dated as of January 1, 2000,
between Lehman Capital, A Division
of Lehman Brothers Holdings Inc.,
as Seller, and Life Bank, as
Servicer.
EXECUTION
AMORTIZING RESIDENTIAL COLLATERAL TRUST MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-BC1
TERMS AGREEMENT
---------------
Dated: February 7, 2000
To: Structured Asset Securities Corporation, as Depositor under the Trust
Agreement dated as of January 1, 2000 (the "Trust Agreement").
Re: Underwriting Agreement Standard Terms dated as of April 16, 1996 (the
"Standard Terms," and together with this Terms Agreement, the
"Agreement").
Series Designation: Series 2000-BC1.
- ------------------
Terms of the Series 2000-BC1 Certificates: Amortizing Residential Collateral
- -----------------------------------------
Trust Mortgage Pass-Through Certificates, Series 2000-BC1, Class A1, Class A2,
Class M1, Class M2, Class B, Class X, Class R and Class P (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
10,844 conventional, adjustable and fixed rate, fully amortizing and balloon,
first and junior lien residential mortgage loans (the "Mortgage Loans") having
a Scheduled Principal Balance as of the Cut-off Date of $1,353,485,647.72.
Only the Class A1, Class A2, Class M1, Class M2 and Class B (the "Offered
Certificates") are being sold pursuant to the terms hereof.
Registration Statement: File Number 333-68513.
- ----------------------
Certificate Ratings: It is a condition to the issuance of the Class A1
- -------------------
Certificates and the Class A2 Certificates that they be rated "Aaa" by Moody's
Investors Service, Inc. ("Moody's") and "AAA" by each of Standard & Poor's
Rating Services, a division of The McGraw-Hill Companies, Inc. ("S&P") and
Fitch IBCA, Inc. ("Fitch," and together with Moody's and S&P, the "Rating
Agencies"). It is a condition to the issuance of the Class M1 Certificates
that they be rated "Aa2" by Moody's and "AA" by each of S&P and Fitch. It is a
condition to the issuance of the Class M2 Certificates that they be rated "A2"
by Moody's and "A" by each of S&P and Fitch. It is a condition to the issuance
of the Class B Certificates that they be rated "Baa2" by Moody's and "BBB" by
each of S&P and Fitch.
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: January 1, 2000.
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Closing Date: 10:00 A.M., New York time, on or about February 9, 2000. On the
- ------------
Closing Date, the Depositor will 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/ Stanley Labanowski
-----------------------------
Name: Stanley Labanowski
Title: Vice President
<PAGE>
<TABLE>
<CAPTION>
Schedule 1
----------
Purchase
Initial Certificate Principal Certificate Price
Class Amount(1) Interest Rate Percentage
- ------------------- -------------------------------- --------------------- -------------------
<S> <C> <C> <C>
Class A1 $983,064,000 (2) 100.00%
Class A2 $275,679,000 8.05% 100.00%
Class M1 $ 40,604,000 (2) 100.00%
Class M2 $ 40,604,000 (2) 100.00%
Class B $ 13,534,000 (2) 100.00%
</TABLE>
- -----------------
(1) Approximate.
(2) Interest will accrue on the Class A1, M1, M2 and B Certificates
based upon one-month LIBOR plus a specified margin, subject to
limitation, as described in the Prospectus Supplement.
EXECUTION
===========================================================================
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer,
and
FIRST UNION NATIONAL BANK, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of January 1, 2000
---------------------------
AMORTIZING RESIDENTIAL COLLATERAL MORTGAGE TRUST
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-BC1
==========================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................3
Section 1.02. Calculations Respecting Mortgage Loans.......................30
Section 1.03. Calculations Respecting Accrued Interest.....................31
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans...............................................31
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for Trust Fund...............................................33
Section 2.03. Representations and Warranties of the Depositor..............35
Section 2.04. Discovery of Breach..........................................36
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.......37
Section 2.06. Grant Clause.................................................37
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates.............................................38
Section 3.02. Registration.................................................38
Section 3.03. Transfer and Exchange of Certificates........................39
Section 3.04. Cancellation of Certificates.................................41
Section 3.05. Replacement of Certificates..................................41
Section 3.06. Persons Deemed Owners........................................42
Section 3.07. Temporary Certificates.......................................42
Section 3.08. Appointment of Paying Agent..................................42
Section 3.09. Book-Entry Certificates......................................43
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account...........................................44
Section 4.02. Application of Funds in the Collection Account...............46
Section 4.03. Reports to Certificateholders................................48
Section 4.04. Certificate Account..........................................50
Section 4.05. Determination of LIBOR.......................................51
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally......................................52
Section 5.02. Distributions from the Certificate Account...................53
Section 5.03. Allocation of Losses.........................................57
Section 5.04. Advances by Master Servicer and Trustee......................58
Section 5.05. Compensating Interest Payments...............................59
Section 5.06. REMIC 1, REMIC 2 and REMIC 3 Allocations.59
Section 5.07. Basis Risk Reserve Fund......................................60
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee............................................61
Section 6.02. Certain Matters Affecting the Trustee........................63
Section 6.03. Trustee Not Liable for Certificates..........................64
Section 6.04. Trustee May Own Certificates.................................64
Section 6.05. Eligibility Requirements for Trustee.........................65
Section 6.06. Resignation and Removal of Trustee...........................65
Section 6.07. Successor Trustee............................................66
Section 6.08. Merger or Consolidation of Trustee...........................66
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.....66
Section 6.10. Authenticating Agents........................................68
Section 6.11. Indemnification of Trustee...................................68
Section 6.12. Fees and Expenses of Trustee.................................69
Section 6.13. Collection of Monies.........................................69
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor..69
Section 6.15. Additional Remedies of Trustee Upon Event of Default.........73
Section 6.16. Waiver of Defaults...........................................73
Section 6.17. Notification to Holders......................................73
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default......................................73
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default........................................74
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase or Liquidation of All Mortgage Loans................74
Section 7.02. Procedure Upon Termination of Trust Fund.....................75
Section 7.03. Additional Trust Fund Termination Requirements...............76
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders..............................76
Section 8.02. Access to List of Holders....................................77
Section 8.03. Acts of Holders of Certificates..............................78
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer................................79
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors
and Omissions Insurance Policy...............................79
Section 9.03. Master Servicer's Financial Statements and
Related Information..........................................80
Section 9.04. Power to Act; Procedures.....................................80
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations.............81
Section 9.06. Collection of Taxes, Assessments and Similar Items...........82
Section 9.07. Termination of Servicing Agreements; Successor Servicers.....82
Section 9.08. Master Servicer Liable for Enforcement.......................83
Section 9.09. No Contractual Relationship Between Any Servicer and
Trustee or Depositor.........................................83
Section 9.10. Assumption of Servicing Agreement by Trustee.................83
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.................84
Section 9.12. Release of Mortgage Files....................................84
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee..............................85
Section 9.14. Representations and Warranties of the Master Servicer........86
Section 9.15. Closing Certificate and Opinion..............................88
Section 9.16. Standard Hazard and Flood Insurance Policies.................88
Section 9.17. Presentment of Claims and Collection of Proceeds.............89
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies.......89
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies
and Documents................................................89
Section 9.20. Realization Upon Defaulted Mortgage Loans....................90
Section 9.21. Compensation to the Master Servicer..........................90
Section 9.22. REO Property.................................................90
Section 9.23. Preparation of Tax Returns and Other Reports.................91
Section 9.24. Reports to the Trustee.......................................92
Section 9.25. Annual Officer's Certificate as to Compliance................92
Section 9.26. Annual Independent Accountants' Servicing Report.............93
Section 9.27. Merger or Consolidation......................................93
Section 9.28. Resignation of Master Servicer...............................93
Section 9.29. Assignment or Delegation of Duties by the Master Servicer....94
Section 9.30. Limitation on Liability of the Master Servicer and Others....94
Section 9.31. Indemnification; Third-Party Claims..........................95
Section 9.32. Alternative Index............................................95
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration........................................95
Section 10.02. Prohibited Transactions and Activities......................97
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status.............................................97
Section 10.04. REO Property................................................98
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment......................99
Section 11.02. Entire Agreement.............................................99
Section 11.03. Amendment....................................................99
Section 11.04. Voting Rights...............................................100
Section 11.05. Provision of Information....................................100
Section 11.06. Governing Law...............................................101
Section 11.07. Notices.....................................................101
Section 11.08. Severability of Provisions..................................101
Section 11.09. Indulgences; No Waivers.....................................101
Section 11.10. Headings Not To Affect Interpretation.......................102
Section 11.11. Benefits of Agreement.......................................102
Section 11.12. Special Notices to the Rating Agencies......................102
Section 11.13. Counterparts................................................103
Section 11.14. Transfer of Servicing.......................................103
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 [RESERVED]
Exhibit B-2 [RESERVED]
Exhibit B-3 [RESERVED]
Exhibit B-4 Form of Endorsement
Exhibit C [RESERVED]
Exhibit D-l Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E-1 Servicing Agreement (Ameriquest Mortgage Company)
Exhibit E-2 Servicing Agreement (Aurora Loan Services Inc.)
Exhibit E-3 Servicing Agreement (Life Bank)
Exhibit E-4 Servicing Agreement (Ocwen Federal Bank FSB)
Exhibit E-5 Servicing Agreement (Option One Mortgage Corporation)
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-1 Custodial Agreement (Bankers Trust of California, N.A.)
Exhibit K-2 Custodial Agreement (Chase Bank of Texas, National
Association)
Exhibit K-3 Custodial Agreement (LaSalle Bank, N.A.)
Exhibit K-4 Custodial Agreement (Norwest Bank Minnesota, National
Association)
Exhibit K-5 Custodial Agreement (U.S. Bank Trust National Association)
Exhibit L-1 First Lien Master Policy for Amortizing
Residential Collateral Mortgage Pass-Through Certificates,
Series 2000-BC1 issued by PMI Mortgage Insurance Co.
Exhibit L-2 Forms of MGIC Mortgage Guaranty Commitment/Certificate
Exhibit M Program Agreement, dated as of February 9, 2000, between
PMI Mortgage Insurance Co. and the Trustee
Exhibits N-1
through N-5 Forms of Loss Mitigation Advisory Agreement, dated as of
February 9, 2000, between The Murrayhill Company, as Loss
Mitigation Advisor, and each Servicer
Exhibit O Term Letter Agreement, dated February 9, 2000, between the
Depositor and The Murrayhill Company
Exhibit P Trustee's Fee Letter
Schedule A Mortgage Loan Schedule
This TRUST AGREEMENT, dated as of January 1, 2000 (the "Agreement"),
is by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware
corporation, as depositor (the "Depositor"), NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), and FIRST UNION
NATIONAL BANK, a national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Lehman Capital, A
Division of Lehman Brothers Holdings Inc. ("Lehman Capital"), and at the
Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by it to the Trustee hereunder for inclusion in the Trust Fund. On
the Closing Date, the Depositor will acquire the Certificates from the Trust
Fund, as consideration for its transfer to the Trust Fund of the Mortgage
Loans and the other property constituting the Trust Fund. The Depositor has
duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor
and the Master Servicer are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as including three separate real
estate mortgage investment conduits (each a "REMIC" or, in the alternative,
"REMIC 1," "REMIC 2," and "REMIC 3," respectively, REMIC 3 also being referred
to as the "Upper Tier REMIC"). The Class A1, Class A2, Class M1, Class M2,
Class B, and Class X Certificates represent ownership of all of the "regular
interests" in REMIC 3 (the Class T3-A1, Class T3-A2, Class T3-M1, Class T3-M2,
Class T3-B, Class T3-E, Class T3-F, and Class T3-G Interests), and the Class
R3 Interest represents the sole class of "residual interest" in REMIC 3 for
purposes of the REMIC Provisions. Each of the Class R1, Class R2, and Class R3
Certificates represents the sole class of "residual interest" in REMIC 1,
REMIC 2, and REMIC 3 respectively, for purposes of the REMIC Provisions. There
are also seven classes of uncertificated REMIC 1 Regular Interests issued
under this Agreement (the Class T1-C, Class T1-D, Class T1-A1, Class T1-A2,
Class T1-M1, Class T1-M2, and Class T1-B), each of which will constitute
regular interests in REMIC 1; and twelve classes of uncertificated REMIC 2
Regular Interests (the Class T2-C, Class T2-D, Class T2-A1, Class T2-A2, Class
T2-M1, Class T2-M2, Class T2-B, Class T2-A1-IO, Class T2-A2-IO, Class
T2-M1-IO, Class T2-M2-IO, and Class T2-B-IO Interests), each of which will
constitute regular interests in REMIC 2. The REMIC 1 Regular Interests will be
held as assets of REMIC 2, and the REMIC 2 Regular Interests will be held as
assets of REMIC 3. The latest possible maturity date for each regular interest
shall be the Latest Possible Maturity Date.
As used herein, (i) the Class A1 Certificates are "related" to Pool 1
and the Class A2 Certificates are "related" to Pool 2.
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount and minimum
denomination for each Class of Certificates comprising the interests in the
Trust Fund created hereunder.
<TABLE>
<CAPTION>
Certificate Interest Rate Initial Class Minimum
Class Designation Principal Amount Denominations
<S> <C> <C> <C>
Class A1 (1) $983,064,000.00 $ 25,000
Class A2 (2) 275,679,000.00 25,000
Class M1 (3) 40,604,000.00 25,000
Class M2 (4) 40,604,000.00 25,000
Class B (5) 13,534,000.00 25,000
Class P (6) (6) (7)
Class X (6) (6) (7)
Class R (6) (6) (7)
</TABLE>
- ---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date
for the Class A1 Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 0.32% and (ii) the Net Funds Cap for such
Distribution Date; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to such Distribution Date and each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class A1 Certificates will be LIBOR plus 0.64%.
(2) The Certificate Interest Rate with respect to any Distribution Date
for the Class A2 Certificates is the per annum rate equal to the
lesser of (i) 8.05% and (ii) the Net Funds Cap for such Distribution
Date.
(3) The Certificate Interest Rate with respect to any Distribution Date
for the Class M1 Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 0.48% and (ii) the Net Funds Cap for such
Distribution Date; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to such Distribution Date and each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class M1 Certificates will be LIBOR plus 0.98%.
(4) The Certificate Interest Rate with respect to any Distribution Date
for the Class M2 Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 0.98% and (ii) the Net Funds Cap for such
Distribution Date; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to such Distribution Date and each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class M1 Certificates will be LIBOR plus 1.48%.
(5) The Certificate Interest Rate with respect to any Distribution Date
for the Class B Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 2.25% and (ii) the Net Funds Cap for such
Distribution Date; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to such Distribution Date and each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class B Certificates will be LIBOR plus 2.75%.
(6) The Class P, the Class X and Class R Certificates will be issued
without a Certificate Principal Amount and will not bear interest.
(7) The Class P, the Class X and Class R Certificates will each be issued
as a single Certificate evidencing the entire Percentage Interest in
such Class.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $1,353,485,647.72.
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
Master Servicer (except in its capacity as successor to any Servicer), or (y)
as provided in the applicable Servicing Agreement, to the extent applicable to
any Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accrual Period: With respect to any Distribution Date and any Class
of LIBOR Certificates, the one-month period beginning on the immediately
preceding Distribution Date (or on the Closing Date in the case of the first
Accrual Period) and ending on the day immediately preceding the related
Distribution Date. With respect to any Distribution Date and the Class A2
Certificates, and any REMIC 1 Regular Interest and REMIC 2 Regular Interest,
the calendar month immediately preceding the month of such Distribution Date.
Additional Collateral: None.
Adjustable Rate Mortgage Loan: Any Mortgage Loan as to which the
related Mortgage Note provides for the adjustment of the Mortgage Rate
applicable thereto.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the applicable Servicing Fee) on
one or more Mortgage Loans that were due on the Due Date in the related
Collection Period and not received as of the close of business on the related
Determination Date, required to be made by or on behalf of the Master Servicer
and any Servicer (or by the Trustee) pursuant to Section 5.04.
Advisor's Fee Rate: 0.015% per annum.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Loan Balance: The aggregate of the Scheduled Principal
Balances of all Mortgage Loans (in both Mortgage Pools) at the date of
determination.
Aggregate Master Servicing Compensation: As to any Distribution Date,
the aggregate of the Master Servicing Fees payable to the Master Servicer in
respect of such Distribution Date.
Aggregate Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the Principal Distribution Amount for
such Distribution Date and (y) the amount, if any, by which (i) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate of the Principal Remittance
Amounts for such date is applied on such date in reduction of the aggregate of
the Certificate Principal Amounts of the Certificates, exceeds (ii) the
Targeted Overcollateralization Amount for such date.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
Applied Loss Amount: With respect to any Distribution Date, the
amount, if any, by which (x) the aggregate Certificate Principal Amount of the
Certificates after giving effect to distributions on such date, but before
giving effect to any application of the Applied Loss Amount with respect to
such date, exceeds (y) the Aggregate Loan Balance for such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
B Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Certificate Principal Amount of the Class A1,
Class A2, Class M1 and Class M2 Certificates, in each case after giving effect
to distributions on such Distribution Date and (ii) the Class Principal Amount
of the Class B Certificates immediately prior to such Distribution Date
exceeds (y) the lesser of (A) the product of (i) 99.00% and (ii) the Aggregate
Loan Balance for such Distribution Date and (B) the amount, if any, by which
(i) the Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.50%
of the Cut-off Date Aggregate Loan Balance.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Basis Risk Reserve Fund: A fund created as part of the Trust Fund
pursuant to Section 5.07 of this Agreement but which is not an asset of any of
the REMICs.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of Certificates other than the Class R, Class X and Class P
Certificates, the amount by which the Certificate Interest Rate applicable to
such Certificate for such date, determined without regard to the Net Funds Cap
for such date, exceeds such Net Funds Cap.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class A1, Class A2, Class
M1, Class M2 and Class B Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Maryland or Minnesota are closed, or (iii) with respect to
any Remittance Date or any Servicer reporting date, the States specified in
the definition of "Business Day" in each Servicing Agreement, are authorized
or obligated by law or executive order to be closed.
Carryforward Interest: With respect to any Distribution Date and each
Class of Certificates, the sum of (i) the amount, if any, by which (x) the sum
of (A) Current Interest for such Class for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest for such Class from
previous Distribution Dates exceeds (y) the amount distributed in respect of
interest on such Class on such immediately preceding Distribution Date, and
(ii) interest on such amount for the related Accrual Period at the applicable
Certificate Interest Rate.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Interest Rate: With respect to each Class of Certificates
and any Distribution Date, the applicable per annum rate set forth or
described in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than the Class P, Class X and Class R Certificates), the initial Certificate
Principal Amount thereof, less the amount of all principal distributions
previously distributed with respect to such Certificate and any Applied Loss
Amount previously allocated to such Certificate. The Class P, Class X and
Class R Certificates are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Class: All Certificates bearing the same class designation.
Class Notional Amount: Not applicable.
Class Principal Amount: With respect to each Class of Certificates
other than the Class P, Class X and Class R Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date of
determination.
Class P Certificate: An interest in the Trust Fund that is not an
interest in any of the REMIC 1, REMIC 2 or REMIC 3 and that is entitled to
distributions as provided in Section 5.02(e).
Class R Certificate: The Class R Certificate executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A and evidencing the ownership of the Class
R1 Interest, Class R2 Interest and Class R3 Interest.
Class R1 Interest: The uncertificated residual interest in REMIC 1.
Class R2 Interest: The uncertificated residual interest in REMIC 2.
Class R3 Interest: The uncertificated residual interest in REMIC 3.
Class T1-C Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance equal to 98% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
Net Funds Cap, and has such other terms as are described in Section 5.06.
Class T1-D Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
Net Funds Cap, and has such other terms as are described in Section 5.06.
Class T1-A1 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $9,830,600.00, bears
interest at a per annum rate equal to the Net Funds Cap, and has such other
terms as are described in Section 5.06.
Class T1-A2 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $2,756,790.00, bears
interest at a per annum rate equal to the Net Funds Cap, and has such other
terms as are described in Section 5.06.
Class T1-M1 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $406,040.00, bears
interest at a per annum rate equal to the Net Funds Cap, and has such other
terms as are described in Section 5.06.
Class T1-M2 Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $406,040.00, bears
interest at a per annum rate equal to the Net Funds Cap, and has such other
terms as are described in Section 5.06.
Class T1-B Interest: A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $135,340, bears interest
at a per annum rate equal to the Net Funds Cap, and has such other terms as
are described in Section 5.06.
Class T2-C Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance equal to 98% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
Net Funds Cap, and has such other terms as are described in Section 5.06.
Class T2-D Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance equal to 1% of the Cut-off
Date Aggregate Loan Balance, bears interest at a per annum rate equal to the
Net Funds Cap, and has such other terms as are described in Section 5.06.
Class T2-A1 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance of $9,830,600.00, bears
interest at a per annum rate equal to the Class A1 Certificate Interest Rate,
and has such other terms as are described in Section 5.06.
Class T2-A2 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance of $2,756,790.00, bears
interest at a per annum rate equal to the Class A2 Certificate Interest Rate,
and has such other terms as are described in Section 5.06.
Class T2-M1 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance of $406,040.00, bears
interest at a per annum rate equal to the Class M1 Certificate Interest Rate,
and has such other terms as are described in Section 5.06.
Class T2-M2 Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance of $406,040.00, bears
interest at a per annum rate equal to the Class M2 Certificate Interest Rate,
and has such other terms as are described in Section 5.06.
Class T2-B Interest: A regular interest in REMIC 2 held as an asset
of REMIC 3 that has an initial principal balance of $135,340, bears interest
at a per annum rate equal to the Class B Certificate Interest Rate, and has
such other terms as are described in Section 5.06.
Class T2-A1-IO Interest: A regular interest in REMIC 2 held as an
asset of REMIC 3 that has a notional principal balance that will at all times
equal the principal balance of the Class T1-A1 Interest, that bears interest
on its notional principal balance at a rate equal to the excess, if any, of
the Net Funds Cap over the Class A1 Certificate Interest Rate, and that has
such other terms as are described in Section 5.06.
Class T2-A2-IO Interest: A regular interest in REMIC 2 held as an
asset of REMIC 3 that has a notional principal balance that will at all times
equal the principal balance of the Class T1-A2 Interest, that bears interest
on its notional principal balance at a rate equal to the excess, if any, of
the Net Funds Cap over the Class A2 Certificate Interest Rate, and that has
such other terms as are described in Section 5.06.
Class T2-M1-IO Interest: A regular interest in REMIC 2 held as an
asset of REMIC 3 that has a notional principal balance that will at all times
equal the principal balance of the Class T1-M1 Interest, that bears interest
on its notional principal balance at a rate equal to the excess, if any, of
the Net Funds Cap over the Class M1 Certificate Interest Rate, and that has
such other terms as are described in Section 5.06.
Class T2-M2-IO Interest: A regular interest in REMIC 2 held as an
asset of REMIC 3 that has a notional principal balance that will at all times
equal the principal balance of the Class T1-M2 Interest, that bears interest
on its notional principal balance at a rate equal to the excess, if any, of
the Net Funds Cap over the Class M2 Certificate Interest Rate, and that has
such other terms as are described in Section 5.06.
Class T2-B-IO Interest: A regular interest in REMIC 2 held as an
asset of REMIC 3 that has a notional principal balance that will at all times
equal the principal balance of the Class T1-B Interest, that bears interest on
its notional principal balance at a rate equal to the excess, if any, of the
Net Funds Cap over the Class B Certificate Interest Rate, and that has such
other terms as are described in Section 5.06.
Class T3-A1 Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class A1 Certificate, that has an initial principal
balance of $983,064,000.00, that bears interest at a per annum rate equal to
the Class A1 Certificate Interest Rate, and that has such other terms as are
described in Section 5.06.
Class T3-A2 Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class A2 Certificate, that has an initial principal
balance of $275,679,000.00, that bears interest at a per annum rate equal to
the Class A2 Certificate Interest Rate, and that has such other terms as are
described in Section 5.06.
Class T3-M1 Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class M1 Certificate, that has an initial principal
balance of $40,604,000.00, that bears interest at a per annum rate equal to
the Class M1 Certificate Interest Rate, and that has such other terms as are
described in Section 5.06.
Class T3-M2 Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class M2 Certificate, that has an initial principal
balance of $40,604,000.00, that bears interest at a per annum rate equal to
the Class M2 Certificate Interest Rate, and that has such other terms as are
described in Section 5.06.
Class T3-B Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class B Certificate, that has an initial principal
balance of $13,534,000.00, that bears interest at a per annum rate equal to
the Class B Certificate Interest Rate, and that has such other terms as are
described in Section 5.06.
Class T3-E Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class X Certificate that is entitled on any
Distribution Date to all amounts payable on the Class T2-A1-IO, Class
T2-A2-IO, Class T2-M1-IO, Class T2-M2-IO, and Class T2-B-IO Interests, and has
such other terms as are described in Section 5.06.
Class T3-F Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class X Certificate, that has a notional principal
balance that will at all times equal the aggregate principal balance of the
Class T2-D and Class T2-C Interests, that bears interest at a rate equal to
the excess, if any, of the Net Funds Cap over the product of (i) 2 and (ii)
the weighted average of the interest rates on the Class T2-C, Class T2-A1,
Class T2-A2, Class T2-M1, Class T2-M2, and Class T2-B Interests, capping the
rate on the Class T2-C Interest at zero for this purpose.
Class T3-G Interest: A regular interest in REMIC 3 the ownership of
which is evidenced by the Class X Certificate, that has a notional principal
balance that will at all times equal the aggregate principal balance of the
Class T2-A1, Class T2-A2, Class T2-M1, Class T2-M2, and Class T2-B Interests,
that bears interest at a rate equal to the excess, if any, of the weighted
average of the interest rates on the Class T2-A1, Class T2-A2, Class T2-M1,
Class T2-M2, and Class T2-B Interests over the product of (i) 2 and (ii) the
weighted average of the interest rates on the Class T2-C, Class T2-A1, Class
T2-A2, Class T2-M1, Class T2-M2, and Class T2-B Interests, capping the rate on
the Class T2-C Interest at zero for this purpose.
Class X Distributable Amount: With respect to any Distribution Date,
the aggregate of the amounts distributable on the Class T3-E, Class T3-F, and
Class T3-G Interests.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: February 9, 2000.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by
the Master Servicer pursuant to Section 4.01.
Collection Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan, the
ratio of the principal balance of such Mortgage Loan at origination or such
other date as is specified, plus, with respect to any Junior Mortgage Loan,
the outstanding principal balance of the mortgage loan senior thereto, to the
Original Value thereof.
Compensating Interest Payment: With respect to any Distribution Date,
an amount equal to the excess of (x) the aggregate of any Prepayment Interest
Shortfalls with respect to such Distribution Date required to be paid by the
Servicers in respect of such shortfalls with respect to such Distribution Date
over (y) the aggregate amounts actually paid by the Servicers in respect of
such shortfalls; provided, that such amount, to the extent payable by the
Master Servicer, shall not exceed the Aggregate Master Servicing Compensation
that would be payable to the Master Servicer in respect of such Distribution
Date without giving effect to any Compensating Interest Payment.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Department of Veterans Affairs.
Conventional Loan Documents: None.
Cooperative Shares: None.
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 401 South Tryon
Street, NC-1179, Charlotte, North Carolina 28288-1153, Attention: Structured
Finance Trust Services.
Current Interest: With respect to each Class of Certificates and any
Distribution Date, the aggregate amount of interest accrued at the applicable
Certificate Interest Rate during the related Accrual Period on the Class
Principal Amount of such Class immediately prior to such Distribution Date.
Corresponding Class: Shall mean the class of interests in any REMIC
created under this Agreement that correspond to the class of interests in
another such REMIC or to a class of Certificates in the manner set out below.
REMIC 1 REMIC 2 REMIC 3 Certificates
------- ------- ------- ------------
T1-A1 T2-A1 T3-A1 A1
T1-A2 T2-A2 T3-A2 A2
T1-M1 T2-M1 T3-M1 M1
T1-M2 T2-M2 T3-M2 M2
T1-B T2-B T3-B B
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. The initial Custodians are
Bankers Trust of California, N.A.; Chase Bank of Texas, National Association;
LaSalle Bank N.A.; Norwest Bank Minnesota, National Association; and U.S. Bank
Trust, National Association.
Cut-off Date: January 1, 2000.
Cut-off Date Aggregate Loan Balance: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Loan Balance as of
the Cut-off Date.
Cut-off Date Pool Balance: With respect to each Mortgage Pool, the
Pool Balance thereof as of the Cut-off Date.
Deferred Amount: With respect to any Distribution Date and each
Certificate, the aggregate of Applied Loss Amounts previously applied in
reduction of the Certificate Principal Amount thereof, less any amounts
previously reimbursed in respect thereof.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Delinquency Rate: With respect to any calendar month, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans 60 or more days delinquent (including
all foreclosures and REO Properties) as of the close of business on the last
day of such month, and the denominator of which is the Aggregate Loan Balance
as of the close of business on the last day of such month.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the 18th
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the next succeeding Business Day.
Directing Holder: The holder of the Class X Certificate.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, or (viii) any "electing large partnership"
described in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in February
2000.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in
a manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States
of America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or
state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating
from each Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Aggregate Loan Balance and
the aggregate principal amount of all Eligible Investments in the
Certificate Account; provided, further, that such securities will not
be Eligible Investments if they are published as being under review
with negative implications from either Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by either Rating Agency of any of the Certificates. Such investments
in this subsection (viii) may include money market mutual funds or
common trust funds, including any fund for which First Union National
Bank (the "Bank"), the Trustee, the Master Servicer or an affiliate
thereof serves as an investment advisor, administrator, shareholder
servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Bank or an affiliate thereof charges and collects fees
and expenses from such funds for services rendered, (y) the Bank or
an affiliate thereof charges and collects fees and expenses for
services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge
at any time. The Trustee specifically authorizes the Bank or an
affiliate thereof to charge and collect from the Trustee such fees as
are collected from all investors in such funds for services rendered
to such funds (but not to exceed investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Class M1, Class M2, Class B, Class
P, Class X and Class R Certificate.
Errors and Omission Insurance Policy: The errors or omission
insurance policy required to be obtained by the Master Servicer and each
Servicer satisfying the requirements of Section 9.02.
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).
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.
Fidelity Bond: The fidelity bond required to be obtained by the
Master Servicer and each Servicer satisfying the requirements of Section 9.02.
Final Scheduled Distribution Date: With respect to the Class A1 and
Class A2 Certificates, April 25, 2029; with respect to the Class M1, Class M2
and Class B Certificates, January 25, 2030.
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.
Fixed Rate Mortgage Loans: Any Mortgage Loan as to which the related
Mortgage Note provides for a fixed rate of interest throughout the term of
such Note.
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.
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, the Loss Mitigation Advisor, the
PMI Insurer 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, the applicable Servicer, the Loss Mitigation
Advisor or the PMI Insurer in determining whether any Certificates are
registered to an Affiliate of the Depositor, the Master Servicer, any
Servicer, the Loss Mitigation Advisor or the PMI Insurer.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: The index specified in the related Mortgage Note for
calculation of the Mortgage Rate thereof.
Initial LIBOR Rate: 5.89625%.
Insurance Policy: Any Primary Mortgage Insurance Policy (whether
obtained by the borrower, the originator or the Trust), any standard hazard
insurance policy, flood insurance policy, earthquake insurance policy or title
insurance policy relating to the Mortgage Loans or the Mortgaged Properties,
to be in effect as of the Closing Date or thereafter during the term of this
Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
any Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Interest Remittance Amount: With respect to any Distribution Date,
(a) the sum of (i) all interest collected (other than Payaheads) or advanced
in respect of Scheduled Payments on the Mortgage Loans, but excluding any
Prepayment Premiums, during the related Collection Period, less (x) the
applicable Servicing Fee and the Master Servicing Fee with respect to the
Mortgage Loans and (y) unreimbursed interest Advances and other amounts due to
the Master Servicer, any Servicer or the Trustee (other than with respect to
clause (b), below) with respect to the Mortgage Loans, to the extent allocable
to interest, (ii) any amounts paid by any Servicer with respect to Prepayment
Interest Shortfalls with respect to the Mortgage Loans and any Compensating
Interest Payment with respect to the Mortgage Loans with respect to the
related Prepayment Period, (iii) the portion of any Substitution Amount paid
with respect to the Mortgage Loans during the related Prepayment Period
allocable to interest and (iv) all Net Liquidation Proceeds, Insurance
Proceeds and other recoveries collected with respect to such Mortgage Loans
during the related Prepayment Period, to the extent allocable to interest, as
reduced by unreimbursed interest Advances and other amounts due the Master
Servicer, any Servicer or the Trustee, to the extent allocable to interest, as
reduced by (b) any expenses of the Trustee reimbursable pursuant to Section
6.11 and not reimbursed pursuant to clauses (i) or (iv) above.
Intervening Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Junior Mortgage Loan: Any Mortgage Loan that is secured by a junior
lien on the related Mortgaged Property.
Latest Possible Maturity Date: The Distribution Date occurring in
January 2031.
Lehman Capital: Lehman Capital, A Division of Lehman Brothers
Holdings Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, the per annum rate
determined pursuant to Section 4.05 on the basis of London interbank offered
rate quotations for one-month Eurodollar deposits, as such quotations may
appear on the display designated as page "LIUS01M" on the Bloomberg Financial
Markets Commodities News (or such other page as may replace such page on that
service for the purpose of displaying London interbank offered quotations of
major banks).
LIBOR Certificate: Any Class A1, Class M1, Class M2 and Class B
Certificate.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period other than the first Accrual
Period for any LIBOR Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the 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, if any, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale, payment in
full, discounted payoff or otherwise, or the sale of the related Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan, including any amounts remaining in the related Escrow Account.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
Loss Mitigation Advisor: The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
Loss Mitigation Advisory Agreement: The loss mitigation and advisory
agreement, dated as of the Closing Date, entered into by each Servicer, the
Trust and the Loss Mitigation Advisor in connection with the PMI Insurance
Policy in the form of Exhibit N.
Loss Mitigation Advisor 's Fee: As to any Distribution Date and each
Mortgage Loan, an amount equal to the product of the Advisor's Fee Rate and
the Scheduled Principal Balance of such Mortgage Loan as of the first day of
the related Collection Period.
LTV Range: The ranges of Original Loan-to-Value percentages set forth
in Exhibit B of the PMI Insurance Policy, namely: 60.01% to 65.00%; 65.01% to
70.00%; 70.01% to 75.00%; 75.01% to 80.00%; 80.01% to 85.00%; 85.01% to
90.00%; 90.01% to 95.00% and 95.01% to 100.00%.
M1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Certificate Principal Amount of the Senior
Certificates after giving effect to distributions on such Distribution Date
and (ii) the Class Principal Amount of the Class M1 Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 91.00% and (ii) the Aggregate Loan Balance for such Distribution Date and
(B) the amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Cut-off Date Aggregate Loan
Balance.
M2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Certificate Principal Amount of the Senior
Certificates and the Class Principal Amount of the Class M1 Certificates, in
each case after giving effect to distributions on such Distribution Date and
(ii) the Class Principal Amount of the Class M2 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product of 97.00%
(i) and (ii) the Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such Distribution
Date exceeds (ii) 0.50% of the Cut-off Date Aggregate Loan Balance.
Master Servicer: Norwest Bank Minnesota, National Association, or any
successor in interest, or if any successor master servicer shall be appointed
as herein provided, then such successor master servicer.
Master Servicing Fee: As to any Distribution Date and each Mortgage
Loan, an amount equal to the product of the Master Servicing Fee Rate and the
outstanding principal balance of such Mortgage Loan as of the first day of the
related Collection Period. The Master Servicing Fee for any Mortgage Loan
shall be payable in respect of any Distribution Date solely from the interest
portion of the Scheduled Payment or other payment or recovery with respect to
such Mortgage Loan.
Master Servicing Fee Rate: 0.01% 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.
MGIC: Mortgage Guaranty Insurance Corporation, a monoline insurance
company and its successors or assigns.
MGIC Insurance Fee Rate: With respect to each MGIC-Insured Mortgage
Loan and each Distribution Date, the fraction, expressed as a percentage, the
numerator of which is the fixed dollar annual premium applicable to such
Mortgage Loan as specified in the applicable MGIC Commitment/Certificate and
the numerator of which is the Scheduled Principal Balance of such Mortgage
Loan immediately before such Distribution Date.
MGIC-Insured Mortgage Loan: Any Mortgage Loan included for coverage
under a MGIC Insurance Policy.
MGIC Insurance Policies: The loan-level Primary Mortgage Insurance
Policies on certain of the Mortgage Loans serviced by Life Bank and issued by
MGIC for which Life Bank, on behalf of the Trust, has assumed the obligation
of payment of the insurance premiums, as evidenced by the issuance of a MGIC
Mortgage Guaranty Commitment/Certificate with respect to such Mortgage Loan,
in the form attached as Exhibit L-2 hereto.
Monthly Excess Cashflow: With respect to any Distribution Date, the
sum of (x) Monthly Excess Interest for such date and (y) the Aggregate
Overcollateralization Release Amount for such date.
Monthly Excess Interest: With respect to any Distribution Date, the
amount of any Interest Remittance Amount remaining after application pursuant
to clauses (i) through (vii) of Section 5.02(b) on such date.
Moody's: 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 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 mortgage loan sale and assignment
agreement, dated as of January 1, 2000, 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 to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund. Such schedule shall, among other things
(i) designate the Servicer servicing such Mortgage Loan; (ii) designate the
Custodian with respect to the Mortgage File related to such Mortgage Loan; and
(iii) where applicable, indicate whether such Mortgage Loan is a PMI-Insured
Mortgage Loan or a MGIC-Insured Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either Pool 1 or Pool 2.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: 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.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is equal to the
product of (i) the amount, if any, by which (a) the Interest Remittance Amount
for such Distribution Date exceeds (b) the Current Interest payable with
respect to the Certificates for such date and (ii) twelve, and the denominator
of which is the Aggregate Loan Balance for such Distribution Date, multiplied
by (B) a fraction, the numerator of which is thirty and the denominator of
which is the greater of thirty and the actual number of days in the
immediately preceding calendar month.
Net Funds Cap: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is the product of
(i) the Optimal Interest Remittance Amount for such date and (ii) 12, and the
denominator of which is the product of (a) the Aggregate Loan Balance for the
immediately preceding Distribution Date multiplied by (b) a fraction, the
numerator of which is 30 and the denominator of which is the greater of 30 and
the actual number of days in the immediately preceding calendar month.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of (i) unreimbursed expenses and
(ii) any unreimbursed Advances, if any, received and retained in connection
with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the applicable Servicing Fee Rate, the
Master Servicing Fee Rate, the Trustee Fee Rate and the PMI Insurance Fee
Rate, in the case of a PMI-Insured Mortgage Loan and the MGIC Insurance Fee
Rate, in the case of a MGIC-Insured Mortgage Loan.
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 (i) any amounts paid by
the Servicers with respect to such shortfalls and (ii) any Compensating
Interest Payment that is required to be paid by the Master Servicer in respect
of such shortfalls pursuant to this Agreement.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any individual, corporation, partnership or other
person other than a citizen or resident of the United States; a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, including for this purpose, the District
of Columbia; an estate that is subject to U.S. federal income tax regardless
of the source of its income; or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States trustees have authority to control all substantial
decisions of the trust.
Notional Certificate: None.
Offering Document: The Prospectus and the PPM.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or the applicable
Servicer but which must be Independent outside counsel with respect to any
such opinion of counsel concerning the transfer of any Residual Certificate or
concerning certain matters with respect to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the taxation, or the federal
income tax status, of each REMIC.
Optimal Interest Remittance Amount: With respect to each Distribution
Date, the product of (1)(x) the weighted average of the Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Collection Period,
divided by (y) (12), and (2) the Aggregate Loan Balance for the immediately
preceding Distribution Date.
Original 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.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Overcollateralization Amount: With respect to any Distribution Date,
the amount, if any, by which (x) the Aggregate Loan Balance for such
Distribution Date exceeds (y) the aggregate Certificate Principal Amount of
the Certificates after giving effect to distributions on such Distribution
Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the amount, if any, by which (x) the Targeted Overcollateralization
Amount for such Distribution Date exceeds (y) the Overcollateralization Amount
for such Distribution Date, calculated for this purpose after giving effect to
the reduction on such Distribution Date of the Certificate Principal Amounts
of the Certificates resulting from the distribution of the Principal
Remittance Amounts on such Distribution Date, but prior to allocation of any
Applied Loss Amount on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date and each Mortgage Pool, the amount equal to the product of
(i) the Aggregate Overcollateralization Release Amount for such Distribution
Date and (ii) the Pool Percentage for such Mortgage Pool for such Distribution
Date.
Payahead: With respect to any Mortgage Loan and any Due Date
therefor, any Scheduled Payment received by the applicable Servicer during any
Collection Period in addition to the Scheduled Payment due on such Due Date,
intended by the related Mortgagor to be applied on a subsequent Due Date.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than the Class P, Class X and Class R
Certificates, the Percentage Interest evidenced thereby shall equal the
initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to the
Class P, Class X and Class R Certificates, the Percentage Interest evidenced
thereby shall be 100%.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Lehman Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
PMI: Primary Mortgage Insurance Co., an Arizona corporation and its
successors or assigns.
PMI-Insured Mortgage Loan: Any Mortgage Loan included for coverage
under the PMI Insurance Policy.
PMI Insurance Fee Rate: With respect to each PMI-Insured Mortgage
Loan, the Rate Percentage set forth in Exhibit B of the PMI Policy based on
the LTV Range applicable to such Mortgage Loan.
PMI Insurance Policy: The First Lien Master Policy for Amortizing
Residential Collateral Trust Mortgage Pass-Through Certificates, Series
2000-BC1, dated as of February 9, 2000, between the PMI Insurer and the Trust,
attached as Exhibit L-1 hereto, as supplemented by the Program Agreement.
PMI Insurance Premium: With respect to each Distribution Date and
each PMI-Insured Mortgage Loan, the product of (a) the applicable PMI
Insurance Fee Rate and (b) the Scheduled Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date.
Pool 1: The aggregate of the Adjustable Rate Mortgage Loans and the
Fixed Rate Mortgage Loans identified on the Mortgage Loan Schedule as being
included in Pool 1.
Pool 2: The aggregate of the Fixed Rate Mortgage Loans identified on
the Mortgage Loan Schedule as being included in Pool 2.
Pool Balance: With respect to each Mortgage Pool, the aggregate of
the Scheduled Principal Balances of all Mortgage Loans in such Mortgage Pool
at the date of determination.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Pool Balance for such Mortgage Pool for such date and the
denominator of which is the Aggregate Loan Balance for such date.
PPM: The private placement memorandum, relating to the placement of
the Class P, Class X and Class R Certificate.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment (excluding any partial Principal Prepayment of a Mortgage
Loan serviced by Ocwen Federal Bank, FSB) of a Mortgage Loan, the difference
between (i) one full month's interest at the applicable Mortgage Rate (giving
effect to any applicable Relief Act Reduction), as reduced by the Master
Servicing Fee Rate and the applicable Servicing Fee Rate, on the outstanding
principal balance of such Mortgage Loan immediately prior to such prepayment
and (ii) the amount of interest actually received with respect to such
Mortgage Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the
one-month period beginning on the Cut-off Date, in the case of the first
Distribution Date, and on the second day of the calendar month immediately
preceding the month in which the related Distribution Date occurs, in the case
of each subsequent Distribution Date, and ending on the first day of the month
in which such Distribution Date occurs.
Prepayment Premiums: Any prepayment fees and penalties to be paid by
the Mortgagor on a Mortgage Loan.
Primary Mortgage Insurance Policy: The PMI Insurance Policy, the MGIC
Policies and any other mortgage guaranty insurance, if any, on an individual
Mortgage Loan, as evidenced by a policy or certificate, whether such policy is
obtained by the originator, the borrower or the Trust.
Principal Distribution Amount: With respect to each Mortgage Pool and
any Distribution Date, an amount equal to the Principal Remittance Amount for
such Mortgage Pool for such date minus the Overcollateralization Release
Amount, if any, for such Mortgage Pool for such date.
Principal 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.
Principal Remittance Amount: With respect to each Mortgage Pool and
any Distribution Date, the sum of (i) all principal collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans
in such Mortgage Pool during the related Collection Period, (ii) all Principal
Prepayments in full or in part received during the related Prepayment Period,
(iii) the outstanding principal balance of each Mortgage Loan that was
purchased from the Trust Fund during the related Prepayment Period, (iv) the
portion of any Substitution Amount paid during the related Prepayment Period
allocable to principal, and (v) all Net Liquidation Proceeds, Insurance
Proceeds and other recoveries collected with respect to such Mortgage Loans
during the related Prepayment Period, to the extent allocable to principal, as
reduced, in each case to the extent applicable, by unreimbursed Advances and
other amounts due to the Master Servicer, the Servicers or the Trustee, to the
extent allocable to principal.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program Agreement: The Program Agreement for Insurance of Amortizing
Residential Collateral Trust, Series 2000 BC-1, between PMI and the Trustee,
dated as of the Closing Date, entered into by the Trust and PMI in connection
with the PMI Insurance Policy, attached hereto as Exhibit M.
Proprietary Lease: None.
Prospectus: The prospectus supplement dated February 7, 2000,
together with the accompanying prospectus dated January 15, 1999, relating to
the Class A1, Class A2, Class M1, Class M2 and Class B Certificates.
Purchase Price: With respect to the purchase of a Mortgage Loan or
related REO Property pursuant to this Agreement, an amount equal to the sum of
(a) 100% of the unpaid principal balance of such Mortgage Loan and (b) accrued
interest thereon at the applicable Mortgage Rate, from the date as to which
interest was last paid to (but not including) the Due Date in the Collection
Period immediately preceding the related Distribution Date. The Master
Servicer or the 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 or other amounts advanced with respect to such
Mortgage Loan that are reimbursable to the Master Servicer or such Servicer
under this Agreement or the related Servicing Agreement (or to the Trustee
hereunder), together with any accrued and unpaid compensation due to the
Master Servicer, such Servicer or the Trustee hereunder or thereunder.
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in
one of its two highest rating categories or, if such insurance
company has no long-term debt, whose claims paying ability is rated
by each Rating Agency in one of its two highest rating categories,
and whose short-term debt is rated by each Rating Agency in its
highest rating category;
(b) provide that the Trustee may exercise all of the
rights under such contract or surety bond without the necessity of
taking any action by any other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds
would result in a downgrading of any rating of the Certificates, the
Trustee shall terminate such contract without penalty and be entitled
to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under
such contract to the date of delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall
be transferable to any successor trustee hereunder: and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Collection Account or the
Certificate Account, as the case may be, not later than the Business
Day prior to any Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan; provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate from the date as to
which interest was last paid through the end of the Collection Period in which
such substitution occurs (such amount, a "Substitution Amount"), shall be paid
by the party effecting such substitution to the Trustee for deposit into the
Certificate Account, and shall be treated as a Principal Prepayment hereunder;
(ii) has a Net Mortgage Rate not lower than the Net Mortgage Rate of the
related Deleted Mortgage Loan; (iii) if the total principal balance of
Qualifying Substitute Mortgage Loans in the Trust is less than 5% of the
initial principal balance of the Mortgage Loans, has a remaining stated term
to maturity not longer than, and not more than one year shorter than, the
remaining term to stated maturity of the related Deleted Mortgage Loan; (iv)
(A) has a Loan-to-Value Ratio as of the date of such substitution of not
greater than 80%; provided, however, that if the related Deleted Mortgage Loan
has a Loan-to-Value Ratio of greater than 80%, then the Loan-to-Value Ratio of
such substitute Mortgage Loan may be greater than 80% but shall not be greater
than the Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the
addition of such substitute Mortgage Loan does not increase the weighted
average Loan-to-Value Ratio of the related Mortgage Pool by more than 50%; (v)
will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) if applicable, has the same index as and a margin not less than
that of the related Deleted Mortgage Loan and (viii) has not been delinquent
for a period of more than 30 days more than twice in the twelve months
immediately preceding such date of substitution. In the event that either one
mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is substituted for one or more Deleted Mortgage Loans,
then (a) the Scheduled Principal Balance referred to in clause (i) above shall
be determined on a loan-by-loan basis, (b) the rate referred to in clause (ii)
above shall be determined on a loan-by-loan basis and (c) the remaining term
to stated maturity referred to in clause (iii) above, and the Loan-to-Value
Ratio referred to in clause (iv) above shall be determined on a weighted
average basis, provided that the final scheduled maturity date of any
Qualifying Substitute Mortgage Loan shall not exceed the latest Final
Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: Each of Fitch, Moody's and S&P.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, minus (ii) Liquidation Proceeds received, to the
extent allocable to principal, net of amounts that are reimbursable therefrom
to the Master Servicer or any Servicer with respect to such Mortgage Loan
(other than Advances of principal) including expenses of liquidation. In
determining whether a Realized Loss is a Realized Loss of principal,
Liquidation Proceeds shall be allocated, first, to payment of expenses related
to such Liquidated Mortgage Loan, then to accrued unpaid interest and finally
to reduce the principal balance of the Mortgage Loan.
Record Date: With respect to the LIBOR Certificates and any
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date. With respect to the Class A2 Certificates
and any Distribution Date, the last Business Day of the month immediately
preceding the month in which the Distribution Date occurs (or, in the case of
the first Distribution Date, the Closing Date).
Recognition Agreement: None.
Reference Banks: As defined in Section 4.05.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 10.01(a) hereof.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: With respect to each Distribution Date, the 18th day
of the month in which the Distribution Date occurs, or, if such 18th day is
not a Business Day, the next succeeding Business Day.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Required Reserve Fund Deposit: With respect to any Distribution Date
on which the Net Excess Spread is less than 0.25%, the amount, if any by which
(a) the product of 1.00% and the Aggregate Loan Balance for such date exceeds
(b) the amount on deposit in the Basis Risk Reserve Fund immediately prior to
such date. With respect to any Distribution Date on which the Net Excess
Spread is equal to or greater than 0.25%, the amount, if any, by which (i)
$1,000 exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date.
Reserve Interest Rate: As defined in Section 4.05.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having responsibility for the administration of this Agreement.
Restricted Certificate: Any Class P, Class X or Class R Certificate.
Rolling Three Month Delinquency Rate: With respect to any
Distribution Date, the fraction, expressed as a percentage, equal to the
average of the Delinquency Rates for each of the three (or one and two, in the
case of the first and second Distribution Dates) immediately preceding
calendar months.
S&P: Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor in interest.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Collection Period shall be
deemed collectively to constitute the Scheduled Payment due on such Mortgage
Loan in such Collection Period.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Collection Period, whether or not received from
the Mortgagor or advanced by any Servicer or the Master Servicer, and all
amounts allocable to unscheduled principal payments (including Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds, in each case to the extent identified and applied prior to or during
the related Prepayment Period) and (ii) any REO Property as of any
Distribution Date, the Scheduled Principal Balance of the related Mortgage
Loan on the Due Date immediately preceding the date of acquisition of such REO
Property by or on behalf of the Trustee (reduced by any amount applied as a
reduction of principal on the Mortgage Loan). With respect to any Mortgage
Loan and the Cut-off Date, as specified in the Mortgage Loan Schedule.
Security Agreement: None.
Senior Certificate: Any Class A1 or Class A2 Certificate.
Senior Enhancement Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Certificate Principal Amount of the Class M1, Class M2 and Class
B Certificates and the Overcollateralization Amount (which amount, for
purposes of this definition only, shall not be less than zero), in each case
after giving effect to distributions on such Distribution Date, and the
denominator of which is the Aggregate Loan Balance for such Distribution Date.
Senior Principal Distribution Amount: With respect to each Mortgage
Pool, for any Distribution Date (a) prior to the Stepdown Date or if a Trigger
Event has occurred with respect to such Distribution Date, an amount equal to
100% of the Principal Distribution Amount and (b) on or after the Stepdown
Date and as long as a Trigger Event has not occurred with respect to such
Distribution Date, the product of (i) the applicable Senior Proportionate
Percentage and (ii) the amount, if any, by which (x) the aggregate Certificate
Principal Amount of the Senior Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 85.00% and
(ii) the Aggregate Loan Balance for such Distribution Date and (B) the amount,
if any, by which (i) the Aggregate Loan Balance for such Distribution Date
exceeds (ii) 0.50% of the Cut-off Date Aggregate Loan Balance.
Senior Proportionate Percentage: With respect to Pool 1 and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Class Principal Amount of the Class A1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Certificate Principal Amount of the Senior Certificates immediately prior to
such date. With respect to Pool 2 and any Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the Class Principal
Amount of the Class A2 Certificates immediately prior to such Distribution
Date and the denominator of which is the aggregate Certificate Principal
Amount of the Senior Certificates immediately prior to such date.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Initially, the Servicers are Ameriquest Mortgage Company; Aurora Loan Services
Inc.; Life Bank; Ocwen Federal Bank FSB; and Option One Mortgage Corporation.
Servicing Agreement: Each Servicing Agreement between the applicable
Servicer and Lehman Capital attached hereto as Exhibit E.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of the applicable Servicing Fee Rate and the
outstanding principal balance of such Mortgage Loan as of the first day of the
related Collection Period.
Servicing Fee Rate: With respect to any Servicer other than Life
Bank, 0.50% per annum; with respect to Life Bank, 0.35% per annum.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stepdown Date: The later to occur of (x) the Distribution Date in
February 2003 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Mortgage Loans during the
related Collection Period but before giving effect to distributions on the
Certificates on such Distribution Date) is greater than to equal to 15.00%.
Subordinate Certificate: Any Class M1, Class M2, Class B, Class P or
Class X Certificate.
Substitution Amount: As defined in the definition of Qualifying
Substitute Mortgage Loan.
Target Amount 1: With respect to any Distribution Date, the amount
equal to the sum of (1) Target Amount 2 for such Distribution Date and (2) the
Principal Distribution Amount for Pool 2 for such Distribution Date.
Target Amount 2: With respect to any Distribution Date, the amount
equal to the Aggregate Loan Balance as of such Distribution Date minus the
product of (1) 0.50% and (2) the Cut-Off Date Aggregate Loan Balance.
Targeted Overcollateralization Amount: With respect to any
Distribution Date 0.50% of the Cut-off Date Aggregate Loan Balance.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Telerate Page 120: The display designated as "Page 120" on the Dow
Jones Telerate Service (or such other page selected by the Trustee as may
replace Page 120 on that service for the purpose of displaying daily Federal
Funds rates).
Termination Price: As defined in Section 7.01.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Total Distribution Amount: With respect to any Distribution Date, the
sum of the Interest Remittance Amount for such date and the aggregate of the
Principal Remittance Amounts for such date.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to Lehman Capital pursuant
to the Transfer Agreements.
Trigger Event: A Trigger Event will have occurred with respect to any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding Collection Period equals or exceeds 100% of
the Senior Enhancement Percentage for such Distribution Date.
Trust: The trust created pursuant to this Agreement, known as
"Amortizing Residential Collateral Trust, Series 2000-BC1".
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans, the assignment of the Depositor's
rights under the Mortgage Loan Sale Agreement and each Servicing Agreement,
such amounts as shall from time to time be held in the Collection Account, the
Certificate Account, any Escrow Account, the Basis Risk Reserve Fund, the
Insurance Policies, any REO Property and the other items referred to in, and
conveyed to the Trustee under, Section 2.01(a).
Trustee: First Union National 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.
Trustee Fee Rate: 0.0075% per annum.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date
and any Certificate, the aggregate of all Basis Risk Shortfalls with respect
to such Certificate remaining unpaid from previous Distribution Dates, plus
interest accrued thereon at the applicable Certificate Interest Rate
(calculated without giving effect to the applicable Net Funds Cap).
Upper Tier REMIC: REMIC 3.
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,
98% of all Voting Interests shall be allocated among the Class A1, Class A2,
Class M1, Class M-2 and Class B and Class R Certificates. The portion of such
98% Voting Interests allocated to the Class A1, Class A2, Class M1, Class M2
and Class B Certificates shall be based on the fraction, expressed as a
percentage, the numerator of which is the aggregate Certificate Principal
Amount then outstanding and the denominator of which is the Aggregate Loan
Balance. The Class R Certificate shall be allocated the remainder of such 98%
Voting Interests. The Class P and Class X Certificates shall each be allocated
1% of the Voting Interest. Voting Interests shall be allocated among the
Certificates within each such Class in proportion to their outstanding
Certificate Principal Amounts or Percentage Interests (in the case of the
Class P, Class X and Class R 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.
Section 1.03. Calculations Respecting Accrued Interest. Accrued
interest, if any, on any Certificate, other than the Class A2 Certificates,
shall be calculated based upon a 360-day year and the actual number of days in
each Accrual Period. Accrued interest, if any, on any Class A2 Certificate
shall be calculated based upon a 360-day year consisting of twelve 30-day
months.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date (other
than payments of principal and interest due on or before such date), and all
such payments due after such date but received prior to such date and intended
by the related Mortgagors to be applied after such date, together with all of
the Depositor's right, title and interest in and to the Collection Account and
all amounts from time to time credited to and the proceeds of the Collection
Account, the Certificate Account and all amounts from time to time credited to
and the proceeds of the Certificate Account, any Escrow Account established
pursuant to Section 9.06 and all amounts from time to time credited to and the
proceeds of any such Escrow Account, any Basis Risk Reserve Fund established
pursuant to Section 5.07 and all amounts from time to time credited to and the
proceeds of any such Basis Risk Reserve Fund, any REO Property and the
proceeds thereof, the Depositor's rights under any Insurance Policies related
to the Mortgage Loans, the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any Additional Collateral, and any proceeds of the foregoing, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement, including all rights of Lehman Capital
under each Servicing Agreement and the Transfer Agreements to the extent
assigned under the Mortgage Loan Sale Agreement and delegates its obligations
thereunder. The Trustee hereby accepts such assignment and delegation, and
shall be entitled to exercise all rights of the Depositor under the Mortgage
Loan Sale Agreement as if, for such purpose, it were the Depositor.
(b) In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or the applicable Custodian acting on the
Trustee's behalf, 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) or with respect to any lost
Mortgage Note, a lost note affidavit stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy
of the related Mortgage Note;
(ii) the original of any guarantee executed in connection
with the Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan, the original
recorded Mortgage with evidence of recording indicated thereon and
the original recorded power of attorney, with evidence of recording
thereon. If, in connection with any Mortgage Loan, the Depositor
cannot deliver the Mortgage or power of attorney 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 or power of
attorney 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 or power of attorney,
pending delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
Mortgage or power of attorney delivered to the Trustee (or the
applicable Custodian) is a true copy and that the original of such
Mortgage or power of attorney has been forwarded to the public
recording office, or, in the case of a Mortgage or power of attorney
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 or power of attorney 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 the applicable Custodian) is a
true copy and that the original of such agreement has been forwarded
to the public recording office;
(v) with respect to each Mortgage Loan, the original
Assignment of Mortgage for each Mortgage Loan assigned without
recourse to the order of the Trustee;
(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) with respect to any Mortgage Loan, the original
mortgagee title insurance policy or attorney's opinion of title and
abstract of title; and
(viii) 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.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) Assignments of Mortgage with respect to each Mortgage Loan shall
be held in recordable form; provided, however, that such Assignments need not
be recorded if, in the Opinion of Counsel (which must be Independent counsel)
acceptable to the Trustee and the Rating Agencies, recording in such states is
not required to protect the Trustee's interest in the related Mortgage Loans.
Subject to the preceding sentence, as soon as practicable after the Closing
Date (but in no event more than three 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 applicable Servicer,
shall cause to be properly recorded by each Servicer in each public recording
office where the related Mortgages are recorded each Assignment of Mortgage
referred to in subsection (b)(v) above with respect to each Mortgage Loan.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
under clause (b)(vii) 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 by it or by the applicable Custodian on its
behalf of the Mortgage Files pertaining to the Mortgage Loans listed on the
Mortgage Loan Schedule. The Trustee or the applicable Custodian on behalf of
the Trustee has reviewed each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and will execute and deliver on the Closing Date to the
Depositor and the Master Servicer an Initial Certification in the form annexed
to each Custodial Agreement as Exhibit B-1 to the effect that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan specifically identified in such certification as not covered by such
certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Trustee, or the 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. None of the
Trustee or any applicable Custodian shall have any responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser.
(b) If in the course of the review described in paragraph (a) above
the Trustee or the 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, discovering
such Material Defect shall promptly identify the Mortgage Loan to which such
Material Defect relates in a certificate to be delivered with the Interim
Certification (in the form attached as Exhibit B-2 to each Custodial
Agreement) within 45 days of the Closing Date. Within 90 days of its receipt
of such notice, the Transferor, or, if the Transferor does not do so, the
Depositor shall be required to cure such Material Defect (and, in such event,
the Depositor shall provide the Trustee with an Officer's Certificate
confirming that such cure has been effected). If the applicable Transferor or
the Depositor, as applicable, does not so cure such Material Defect, the
Transferor, or, if the Transferor does not do so, the Depositor, shall, if a
loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure
such Material Defect, shall repurchase the related Mortgage Loan from the
Trust Fund at the Purchase Price. A loss shall be deemed to be attributable to
the failure of the Depositor to cure a Material Defect if, as determined by
the Depositor, upon mutual agreement with the Trustee acting in good faith,
absent such Material Defect, such loss would not have been incurred. Within
the two-year period following the Closing Date, the Depositor may, in lieu of
repurchasing a Mortgage Loan pursuant to this Section 2.02, substitute for
such Mortgage Loan a Qualifying Substitute Mortgage Loan subject to the
provisions of Section 2.05. The failure of the Trustee or the 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.
(c) 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 attached as Exhibit B-3 to each
Custodial Agreement evidencing the completeness of the Mortgage Files in its
possession or control.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(e) Each of the parties hereto acknowledges that the applicable
Custodian shall perform the applicable review of the Mortgage Loans and
deliver the applicable certifications as provided in its Custodial Agreement.
Section 2.03. Representations and Warranties of the Depositor. (a)
The Depositor hereby represents and warrants to the Trustee, for the benefit
of Certificateholders, and to the Master Servicer, as of the Closing Date or
such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any
other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery
by the Trustee and the Master Servicer, constitutes a valid and
binding obligation of the Depositor enforceable against it in
accordance with its terms except as such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or,
to the knowledge of the Depositor, threatened or likely to be
asserted against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect
it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations
under this Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and sell
each Mortgage Loan to the Trustee free and clear, subject only to (1)
liens of current real property taxes and assessments not yet due and
payable and, if the related Mortgaged Property is a condominium unit,
any lien for common charges permitted by statute, (2) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the
related Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of title
and abstract of title delivered to the originator of such Mortgage
Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had
full right and authority, subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement.
(b) The representations and warranties of the Transferor with respect
to the Mortgage Loans in the applicable Transfer Agreement, which have been
assigned to the Trustee hereunder, were made as of the date of such Transfer
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of a representation or warranty made under
a Transfer Agreement, the Trustee or a Certificateholder shall have the right
to require that Lehman Capital cure such breach or effect such other remedy as
is specified in subsection 1.04(b) of the Mortgage Loan Sale Agreement.
Section 2.04. Discovery of Breach. It is understood and agreed that
the representations and warranties (i) set forth in Section 2.03, (ii) of
Lehman Capital set forth in the Mortgage Loan Sale Agreement and assigned to
the Trustee by the Depositor hereunder and (iii) of the Transferor and of each
Servicer, 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 any of the Depositor, the Master
Servicer, or the Trustee of a breach of any of such representations and
warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of the discovery of a breach of
any representation or warranty given to the Trustee by the Depositor or given
by 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 shall enforce its rights under the applicable Transfer
Agreement for the benefit of Certificateholders.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement, by Lehman Capital pursuant to the Mortgage Loan Sale Agreement
or by the Transferor pursuant to the applicable Transfer Agreement, the
principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Collection Account. The Trustee, upon receipt of the
full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt
of the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for
a Deleted Mortgage Loan (and any applicable Substitution Amount), shall
release or cause to be released and reassign to the Depositor, Lehman Capital
or the Transferor, as applicable, the related Mortgage File for the Deleted
Mortgage Loan and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as
shall be necessary to vest in such party or its designee or assignee title to
any Deleted Mortgage Loan released pursuant hereto, free and clear of all
security interests, liens and other encumbrances created by this Agreement,
which instruments shall be prepared by the applicable Servicer and the Trustee
shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
Transferor or Lehman Capital, as applicable, must deliver to the Trustee (or a
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
applicable Servicer, shall cause the Assignment of Mortgage to be recorded by
the applicable Servicer if required pursuant to the first sentence of Section
2.01(c)(i).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates a
first priority security interest in all of the Depositor's right, title and
interest in, to and under, whether now owned or hereafter acquired, the Trust
Fund and all proceeds of any and all property constituting the Trust Fund to
secure payment of the Certificates; and (3) this Agreement shall constitute a
security agreement under applicable law. If such conveyance is deemed to be in
respect of a loan and the Trust created by this Agreement terminates prior to
the satisfaction of the claims of any Person holding any Certificate, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed as herein provided.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or in the
Percentage Interests, specified herein. Each Class of Book-Entry Certificates
will be issued in the minimum denominations in Certificate Principal Amount
specified in the Preliminary Statement hereto and in integral multiples of $1
in excess thereof. The Class X Certificate, Class P Certificate and the Class
R Certificate shall each be issued as a single Certificate and maintained in
definitive, fully registered form in a denomination equal to 100% of the
Percentage Interest of such Class. The Certificates may be issued in the form
of typewritten certificates.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
The Certificate Registrar shall register the transfer of a Restricted
Certificate if the requested transfer is (x) to the Depositor or the Placement
Agent, an affiliate (as defined in Rule 144(a)(1) under the 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.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee, the Master Servicer, any Servicer or the Depositor to any obligation
in addition to those undertaken in the Agreement; provided, however, that the
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or
holding such a Certificate with the assets of a Plan will not constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code.
The preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Trust Fund, the Trustee or the Depositor.
Notwithstanding the foregoing, no opinion or certificate shall be required for
the initial issuance of the ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, (i) no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee"), and the proposed transferor
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-2. In addition, the Trustee may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Depositor and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-Permitted Foreign Holder. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-Permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-Permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Trustee shall have actual
knowledge at the time of such transfer or the time of such payment or other
action that the transferee is a Disqualified Organization, or an agent or
nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled to recover from any Holder of a Residual Certificate that was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such times (and all costs and expenses, including but not limited to
attorneys' fees, incurred in connection therewith). Any payment (not including
any such costs and expenses) so recovered by the Trustee shall be paid and
delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.03(f), for making any payment due
on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein,
by such Holder's or Owner's acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered upon
the books of the Certificate Registrar as the owner of such Certificate for
the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and
for all other purposes whatsoever, and neither the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of any of them
shall be affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full
force and effect;
(ii) the Depositor, the Master Servicer, the Paying Agent,
the Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency shall be responsible for crediting the
amount of such distributions to the accounts of such Persons entitled
thereto, in accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants
and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of
principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the Master
Servicer shall open and shall thereafter maintain a segregated account held in
trust (the "Collection Account"), entitled "Norwest Bank Minnesota, National
Association, as Master Servicer, in trust for the benefit of the Holders of
Amortizing Residential Collateral Mortgage Pass-Through Certificates, Series
2000-BC1". The Collection Account shall relate solely to the Certificates
issued by the Trust Fund hereunder, and funds in such Collection Account shall
not be commingled with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer will give to the Trustee prior written notice
of the name and address of the depository institution at which the Collection
Account is maintained and the account number of such Collection Account. The
Master Servicer shall take such actions as are necessary to cause the
depository institution holding the Collection Account to hold such account in
the name of the Trustee (subject to such Master Servicer's right to direct
payments and investments and its rights of withdrawal) under this Agreement.
On each Deposit Date, the entire amount on deposit in the Collection Account
(subject to permitted withdrawals set forth in Section 4.02), other than
amounts not included in the Total Distribution Amount for such Distribution
Date shall be remitted to the Trustee for deposit into the Certificate Account
by wire transfer in immediately available funds. The Master Servicer, at its
option, may choose to make daily remittances from the Collection Account to
the Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including
Principal Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans (other than payments due prior to the Cut-off Date), including
Prepayment Premiums or penalties, net of any premiums paid by Life
Bank in respect of the MGIC Insurance Policies in the prior
Collection Period, the applicable Servicing Fee and Master Servicing
Fee with respect to each such Mortgage Loan, but only to the extent
of the amount permitted to be withdrawn or withheld from the
Collection Account in accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect
to a Mortgage Loan not otherwise specified in this paragraph (d),
including all Liquidation Proceeds with respect to the Mortgage Loans
and REO Property, and all amounts received in connection with the
operation of any REO Property, net of (x) any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans (but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04
and 9.21) and (y) any amounts reimbursable to a Servicer under the
applicable Servicing Agreement and retained by such Servicer;
(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 repurchased by the
Depositor, Lehman Capital, the Master Servicer or any other Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments selected by and at the written direction of Lehman Capital, 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 compensation for the Master
Servicer and shall be subject to its withdrawal or order from time to time,
and shall not be part of the Trust Fund. The amount of any losses incurred in
respect of any such investments shall be deposited in such Collection Account
by the 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, assumption fees and other incidental fees and charges
relating to the Mortgage Loans (other than Prepayment Premiums) need not be
deposited by the Master Servicer in the Collection Account and may be retained
by the Master Servicer or the 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 Lehman Capital does not
provide written direction to the Master Servicer pursuant to this Section, all
funds on deposit in the Collection Account shall be invested in a money market
fund as described in paragraph (viii) of the definition of "Eligible
Investment" set forth in Article I.
Section 4.02. Application of Funds in the Collection Account. The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to reimburse itself or 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, following a final
liquidation of a Mortgage Loan, for any amounts advanced 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 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
right thereto shall be prior to the rights of the Certificateholders;
(iv) in the event it has elected not to pay itself the
Master Servicing Fee out of any Mortgagor payment on account of
interest or other recovery with respect to a particular Mortgage Loan
prior to the deposit of such Mortgagor payment or recovery in the
Collection Account, to pay to itself the Master Servicing Fee for
each Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates, as reduced pursuant to Section 5.05, from any
Mortgagor payment as to interest or such other recovery with respect
to that Mortgage Loan, as is permitted by this Agreement;
(v) to reimburse itself for expenses incurred by and
recoverable by or reimbursable to it or any Servicer pursuant to
Sections 9.04, 9.06, 9.16, 9.22(c) or 9.30, 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 Depositor, Lehman Capital, the Transferor
or the Directing Holder, as applicable, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon
and not distributed on the date on which the related repurchase was
effected, and to pay to the applicable Person any Advances to the
extent specified in the definition of Purchase Price;
(vii) to pay to the Master Servicer all income earned on the
investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(ix) to make payment to itself and others pursuant to any
provision of this Agreement;
(x) to withdraw funds deposited in error in the Collection
Account;
(xi) to clear and terminate any Collection Account pursuant
to Section 7.02;
(xii) to reimburse a successor Master Servicer (solely in
its capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee thereto
shall be prior to the rights of the Certificateholders; and
(xiii) to reimburse 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 the
applicable Servicing Agreement.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's, any Servicer's or such other
specified Person's entitlement thereto is limited to collections or other
recoveries on the related Mortgage Loan. The Master Servicer shall therefore
keep and maintain a separate accounting for each Mortgage Loan it master
services for the purpose of justifying any withdrawal from the Collection
Account it maintains pursuant to such subclause (i), (ii), (iii), (iv) and
(vi).
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Trustee shall deliver or cause to be delivered by first class mail
to each Certificateholder a written report setting forth the following
information, which information the Master Servicer will determine (on the
basis of information obtained from the Servicers) and deliver to the Trustee
no later than one Business Day prior to such Distribution Date:
(i) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates,
to the extent applicable, allocable to principal on the Mortgage
Loans, including Liquidation Proceeds and Insurance Proceeds, stating
separately the amount attributable to scheduled principal payments
and unscheduled payments in the nature of principal (with respect to
each Mortgage Pool);
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
allocable to interest;
(iii) the amount, if any, of any distribution to the Holders
of the Class X Certificate and the Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or 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 Loan Balance and the Pool Balance of each
Mortgage Pool as of the close of business on the last day of the
related Collection Period, after giving effect to payments allocated
to principal reported under clause (i) above;
(vi) the Class Principal Amount 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, separately identifying any reduction of any of the
foregoing Certificate Principal Amounts due to Applied Loss Amounts;
(vii) the amount of all prepayment penalties or premiums
distributed to the Class P Certificates;
(viii) any Realized Losses realized with respect to the
Mortgage Loans in (x) in the applicable Prepayment Period and (y) in
the aggregate since the Cut-off Date;
(ix) the amount of the Master Servicing Fees, Servicing
Fees, Trustee Fees, Loss Mitigation Advisor's Fees and PMI Insurance
Premiums paid during the Collection Period to which such distribution
relates;
(x) with respect to the PMI-Insured Mortgage Loans, the
amount of (a) claims filed under the PMI Insurance Policy, (b) claims
paid under such Policy and (c) claims denied under such Policy, on an
aggregate basis during the Collection Period to which such
distribution relates and on a cumulative basis over the term of this
Agreement;
(xi) the number and aggregate Scheduled Principal Balance of
Mortgage Loans in each Mortgage Pool, as reported to the Trustee by
the Master Servicer, (a) remaining outstanding (b) delinquent 30 to
59 days on a contractual basis, (c) delinquent 60 to 89 days on a
contractual basis, (d) delinquent 90 or more days on a contractual
basis, and (e) as to which foreclosure proceedings have been
commenced as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such
Distribution Date occurs;
(xii) 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;
(xiii) with respect to any Mortgage Loan in either Mortgage
Pool that became an REO Property during the preceding calendar month,
the principal balance of such Mortgage Loan and the number of such
Mortgage Loans as of the close of business on the Distribution Date
in such preceding month;
(xiv) 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;
(xv) the aggregate outstanding Carryforward Interest, Net
Prepayment Interest Shortfalls, Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls, if any, if any, for each Class of
Certificates, after giving effect to the distribution made on such
Distribution Date;
(xvi) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xvii) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were sufficient
available amounts in the Certificate Account and the amounts actually
distributed); and
(xviii) any other "loan-level" information for any Mortgage
Loans in each Mortgage Pool that are delinquent 90 or more days on a
contractual basis and any REO Property held by the Trust that is
reported by the Master Servicer to the Trustee.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
In preparing or furnishing the foregoing information to the Trustee,
the Master Servicer shall be entitled to rely conclusively on the accuracy of
the information or data regarding the Mortgage Loans and the related REO
Property that has been provided to the Master Servicer by the Servicers, and
the Master Servicer shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data.
On each Distribution Date, the Trustee shall also deliver or cause to
be delivered by first class mail to the Depositor a copy of the
above-described written report, to the following address: Mortgage Finance
Group, Lehman Brothers Inc., Three World Financial Center, 200 Vesey Street,
New York, New York, 10285, Attention: ARC 2000-BC1 Trust, 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 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 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;
(iii) to make distributions to the Certificateholders
pursuant to Article V; and
(iv) to clear and terminate the Certificate Account pursuant
to Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account at the direction of Lehman Capital, which funds, if
invested, shall be invested in Eligible Investments (which may be obligations
of the Trustee). All such investments must be payable on demand or mature no
later than the next Distribution Date, and shall not be sold or disposed of
prior to their maturity. All such Eligible Investments will be made in the
name of the Trustee (in its capacity as such) or its nominee. All income and
gain realized from any such investment shall be compensation for the 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. In the event
that Lehman Capital does not provide written direction to the Trustee pursuant
to this Section, all funds on deposit in the Certificate Account shall be
invested in a money market or common trust fund as described in paragraph (ix)
of the definition of "Eligible Investment" set forth in Article I.
Section 4.05. Determination of LIBOR. (a) If the outstanding
Certificates include any LIBOR Certificates, then on each LIBOR Determination
Date the Master Servicer shall determine LIBOR on the basis of the offered
LIBOR quotations of the Reference Banks as of 11:00 a.m. London time on such
LIBOR Determination Date as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered quotations
(rounding such arithmetic mean if necessary to the nearest five
decimal places;
(ii) If on any LIBOR Determination Date only one or none of
the Reference Banks provides such offered quotations, LIBOR for the
next Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be either (A)
the rate per annum which the Master Servicer determines to be the
arithmetic mean (rounding such arithmetic mean if necessary to the
nearest five decimal places) of the one-month Eurodollar lending
rates that New York City banks selected by the Depositor are quoting,
on the relevant LIBOR Determination Date, to the principal London
offices of at least two leading banks in the London interbank market
or (B) in the event that the Master Servicer can determine no such
arithmetic mean, the lowest one-month Eurodollar lending rate that
the New York City banks selected by the Depositor are quoting on such
LIBOR Determination Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Master Servicer
is required but is unable to determine the Reserve Interest Rate in
the manner provided in paragraph (ii) above, LIBOR for the next
Accrual Period will be LIBOR as determined on the previous LIBOR
Determination Date or, in the case of the first LIBOR Determination
Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the Certificate Interest Rate (or Rates)
applicable to the LIBOR Certificates for the relevant Accrual Period, in the
absence of manifest error, will be final and binding. In all cases, the Master
Servicer may conclusively rely on quotations of LIBOR for the Reference Banks
as such quotations appear on the display designated "LIUS01M" on the Bloomberg
Financial Markets Commodities News and on other quotations, if any, obtained
by the Master Servicer pursuant to clauses (a)(ii) and (d) of this Section
4.05.
(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
on each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be removed
from the Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the Master
Servicer shall select an alternative interest rate index over which the Master
Servicer has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an
independent third party, and such alternative interest rate index shall
constitute LIBOR for all purposes hereof.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least five Business Days prior to the related
Record Date by any Certificateholder owning an aggregate initial Certificate
Principal Amount of at least $2,500,000, or, in the case of a Class X
Certificate or Class P Certificate, a Percentage Interest of 100%, by wire
transfer in immediately available funds to an account specified in the request
and at the expense of such Certificateholder; provided, however, that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office.
Wire transfers will be made at the expense of the Holder requesting such wire
transfer by deducting a wire transfer fee from the related distribution.
Notwithstanding such final payment of principal of any of the Certificates,
each Residual Certificate will remain outstanding until the termination of
each REMIC and the payment in full of all other amounts due with respect to
the Residual Certificates and at such time such final payment in retirement of
any Residual Certificate will be made only upon presentation and surrender of
such Certificate at Corporate Trust Operations/CIC, 1525 West W.T. Harris
Boulevard, 3C3, Charlotte, North Carolina 28288-1153 or at the office of the
Trustee's New York presenting agent. If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Amounts (or Percentage
Interests).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Total Distribution Amount with
respect to each Mortgage Pool for such date, shall allocate such amount to the
interests issued in respect of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and REMIC 5
and shall distribute such amount as specified in this Section.
(b) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for such date in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution
Date;
(ii) to PMI, the PMI Premium for such Distribution Date;
(iii) pro rata, on the basis of interest otherwise payable,
to the Class A1 and Class A2 Certificates, Current Interest for each
such Class and such Distribution Date and any Carryforward Interest
for each such Class and such Distribution Date;
(iv) to the Class M1 Certificates, Current Interest for such
Class and such Distribution Date;
(v) to the Class M2 Certificates, Current Interest for such
Class and such Distribution Date;
(vi) to the Class B Certificates, Current Interest for such
Class and such Distribution Date; and
(vii) to the Loss Mitigation Advisor, the Loss Mitigation
Advisor's Fee for such Distribution Date;
(viii) for application as part of Monthly Excess Cashflow
for such Distribution Date, as provided in subsection (d) of this
Section, any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (vii) above.
(c) On each Distribution Date, the Trustee shall distribute the
Principal Distribution Amount with respect to each Mortgage Pool for such date
as follows:
(i) On each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event has occurred, the
Trustee will make the following distributions:
For Pool 1: Until the aggregate Certificate
Principal Amount of all of the Certificates equals Target
Amount 1 for such Distribution Date, the Principal
Distribution Amount for Pool 1 will be distributed in the
following order of priority:
(A) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(B) to the Class A2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(C) to the Class M1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(D) to the Class M2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(E) to the Class B Certificates, until
the Class Principal Amount of such Class has been
reduced to zero; and
(F) for application as part of Monthly
Excess Cashflow for such Distribution Date, as
provided in subsection (d) of this Section, any
Principal Distribution Amount for Pool 1 remaining
after application pursuant to clauses (A) through
(E) above.
For Pool 2: until the aggregate
Certificate Principal Amount of all of the Certificates
equals Target Amount 2 for such Distribution Date, the
Principal Distribution Amount for Pool 2 will be distributed
in the following order of priority:
(G) to the Class A2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(H) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(I) to the Class M1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(J) to the Class M2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(K) to the Class B Certificates, until
the Class Principal Amount of such Class has been
reduced to zero; and
(L) for application as part of Monthly
Excess Cashflow for such Distribution Date, as
provided in subsection (d) of this Section, any
Principal Distribution Amount remaining after
application pursuant to clauses (A) through (E)
above.
The distributions set forth above will be made first with respect to
Pool 1 before any distributions are made with respect to Pool 2. Any Principal
Distribution Amount remaining after the applicable Target Amount is achieved
will be applied as part of Monthly Excess Cashflow for such Distribution Date
as provided in subsection (d) of this Section.
(ii) On each Distribution Date (a) on or after the Stepdown
Date and (b) with respect to which a Trigger Event has not occurred,
the Principal Distribution Amounts for both Mortgage Pools for such
date will be distributed in the following order of priority:
(1) to the Class A1 Certificates (in the case of
Pool 1), and to the Class A2 Certificates (in the case of
Pool 2), an amount equal to the lesser of (x) the Principal
Distribution Amount for the related Mortgage Pool for such
Distribution Date and (y) the Senior Principal Distribution
Amount for such Mortgage Pool for such date, in each case
until the Class Principal Amount of such Class has been
reduced to zero; provided, however, to the extent that the
Principal Distribution Amount for a Mortgage Pool exceeds
the Senior Principal Distribution Amount for such Mortgage
Pool, such excess shall be applied to the Senior
Certificates of the other Mortgage Pool, but in an amount
not to exceed the Senior Principal Distribution Amount
related to such other Mortgage Pool for such Distribution
Date (as reduced by any distributions pursuant to subclauses
(x) or (y) of this clause (i) on such Distribution Date);
otherwise to the Senior Certificates, the Principal
Distribution Amount for the related Mortgage Pool for such
Distribution Date;
(2) to the Class M1 Certificates, an amount equal
to the lesser of (x) the excess of (a) the aggregate
Principal Distribution Amounts for each of Pool 1 and Pool 2
for such Distribution Date over (b) the amount distributed
to the Senior Certificates on such date pursuant to clauses
(1) and (2) above, and (y) the M1 Principal Distribution
Amount for such date, until the Class Principal Amount of
such Class has been reduced to zero;
(3) to the Class M2 Certificates, an amount equal
to the lesser of (x) the excess of (a) the aggregate
Principal Distribution Amounts for each of Pool 1 and Pool 2
for such Distribution Date over (b) the amount distributed
to the Senior Certificates and the Class M1 Certificates on
such date pursuant to clauses (1) through (3) above, and (y)
the M2 Principal Distribution Amount for such date, until
the Class Principal Amount of such Class has been reduced to
zero;
(4) to the Class B Certificates, an amount equal to
the lesser of (x) the excess of (a) the aggregate Principal
Distribution Amounts for each of Pool 1 and Pool 2 for such
Distribution Date over (b) the amount distributed to the
Senior Certificates and the Class M1 and Class M2
Certificates on such date pursuant to clauses (1) through
(4) above, and (y) the B Principal Distribution Amount for
such date, until the Class Principal Amount of such Class
has been reduced to zero; and
(5) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (d) of this Section, any Principal Distribution
Amount remaining after application pursuant to clauses (1)
through (4) above.
Notwithstanding the foregoing, on any Distribution Date on which the
Class Principal Amount of each Class of Certificates having a higher
priority of distribution has been reduced to zero, any remaining
Principal Distribution Amount will be distributed to the remaining
Certificates in the order of priority set forth above until the Class
Principal Amount of each such Class has been reduced to zero.
(d) On each Distribution Date, the Trustee shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
(i) for each Distribution Date occurring on or after the
Distribution Date in August 2000, until the aggregate Certificate
Principal Amount of all of the Certificates equals the Aggregate Loan
Balance for such Distribution Date minus the Targeted
Overcollateralization Amount for such date, on each Distribution Date
(a) prior to the Stepdown Date or (b) with respect to which a Trigger
Event has occurred, to the extent of Monthly Excess Interest for such
Distribution Date, to the Certificates, in the following order of
priority:
(1) concurrently, pro rata, in proportion to their
respective Class Principal Amounts after giving effect to
distributions on such Distribution Date, to the Class A1
Certificates and to the Class A2 Certificates, as a group,
as follows:
(A) to the Class A1 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero; and
(B) to the Class A2 Certificates, until
the Class Principal Amount of such Class has been
reduced to zero;
(2) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero;
(3) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero; and
(4) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(ii) to the Senior Certificates, in proportion to any
outstanding Basis Risk Shortfall and Unpaid Basis Risk Shortfall with
respect to each such Senior Certificate, and then sequentially, to
the Class M1, Class M2 and Class B Certificates, in that order, from
the Basis Risk Reserve Fund, in an amount equal to the unpaid amount
of any applicable Basis Risk Shortfall for such date and any
applicable Unpaid Basis Risk Shortfall for such date, as required by
Section 5.07 of this Agreement;
(iii) to the Class M1 Certificates, any Carryforward
Interest for such Class and such date;
(iv) to the Class M1 Certificates, any Deferred Amount for
such Class and such date;
(v) to the Class M2 Certificates, any Carryforward Interest
for such Class and such date;
(vi) to the Class M2 Certificates, any Deferred Amount for
such Class and such date;
(vii) to the Class B Certificates, any Carryforward Interest
for such Class and such date;
(viii) to the Class B Certificates, any Deferred Amount for
such Class and such date;
(ix) to the Basis Risk Reserve Fund, an amount equal to the
Required Reserve Fund Deposit for such Distribution Date;
(x) to the Class X Certificate, the Class X Distributable
Amount for such Distribution Date, together with any amounts
withdrawn from the Basis Risk Reserve Fund for distribution to such
Class X Certificate pursuant to Section 5.07(c) and (d) on such date;
and
(xi) to the Class R Certificate, any amount remaining on
such date after application pursuant to clauses (i) through (x)
above.
(e) On each Distribution Date, an amount equal to the aggregate of
all Prepayment Premiums collected during the preceding Prepayment Period shall
be distributed to the Class P Certificate.
Section 5.03. Allocation of Losses. On each Distribution Date, the
Class Principal Amounts of the Class M1, Class M2 and Class B Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in the
following order of priority:
(i) to the Class B Certificates, until the Class Principal
Amount thereof has been reduced to zero;
(ii) to the Class M2 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
(iii) to the Class M1 Certificates, until the Class
Principal Amount thereof has been reduced to zero.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances
shall be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Collection Period (other than Balloon Payments) have
not been received, the Master Servicer shall, or cause the 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 Prepayment Interest Shortfalls relating to such Distribution Date are
required to be paid but not actually paid by the Servicers on the applicable
Remittance Date. Such amount shall not be treated as an Advance and shall not
be reimbursable to the Master Servicer.
Section 5.06. REMIC 1, REMIC 2 and REMIC 3 Allocations.
(a) With respect to each Distribution Date, 98% of all collections
and other recoveries allocable to principal on the Mortgage Loans shall be
allocated to the Class T1-C Interest. The remaining 2% shall be allocated
first to the Class T1-D Interest up to an amount that equals 2% of any
Overcollateralization Release Amount for such Distribution Date, and then
equally between the Class T1-D Interest on the one hand and the Class T1-A1,
Class T1-A2, Class T1-M1, Class T1-M2, and Class T1-B Interests on the other
hand. Amounts so allocated to the Class T1-A1, Class T1-A2, Class T1-M1, Class
T1-M2, and Class T1-B Interests shall be allocated among those interests in
proportion to allocations of principal payments among the Corresponding
Classes of Certificates. Interest that has accrued on the Class T1-D as of any
Distribution Date in an amount equal to 1% of the increase in the
Overcollateralization Amount from the preceding Distribution Date shall be
deferred and added to the principal balance of the Class T1-D Interest. The
amount of interest so deferred in accordance with the preceding sentence shall
be distributed as principal on such date among the Class T1-A1, Class T1-A2,
Class T1-M1, Class T1-M2, and Class T1-B Interests in proportion to the manner
in which Monthly Excess Interest is applied to pay principal on the
Corresponding Class of Certificates.
(b) On each Distribution Date, Realized losses attributable to the
Mortgage Loans for such date shall be allocated 98% to the Class T1-C
Interest. The remaining 2% shall be allocated to the Class T1-D Interest to
the extent that the principal balance of the Class T1-D Interest exceeds the
aggregate principal balance of the Class T1-A1, Class T1-A2, Class T1-M1,
Class T1-M2, and Class T1-B Interests, and then equally between the Class T1-D
Interest and the Class T1-A1, Class T1-A2, Class T1-M1, Class T1-M2, and Class
T1-B Interests. Realized Losses allocated to the Class T1-A1, Class T1-A2,
Class T1-M1, Class T1-M2, and Class T1-B Interests shall be allocated among
those Interests in a manner such that the principal balance of each such
interest will equal 1% of the principal balance of the Corresponding Class of
Certificate.
(c) On each Distribution Date, Net Prepayment Interest Shortfalls
shall be allocated among the Class T1-C, Class T1-D, Class T1-A1, Class T1-A2,
Class T1-M1, Class T1-M2, and Class T1-B Interests in proportion to their
rights to receive interest.
(d) With respect to each Distribution Date, 98% of all collections
and other recoveries allocable to the interests in REMIC 1 shall be allocated
to the Class T2-C Interest. The remaining 2% shall be allocated first to the
Class T2-D Interest up to an amount that equals 2% of any
Overcollateralization Release Amount for such Distribution Date, and then
equally between the Class T1-D Interest on the one hand and the Class T2-A1,
Class T2-A2, Class T2-M1, Class T2-M2, and Class T2-B Interests on the other
hand. Amounts so allocated to the Class T2-A1, Class T2-A2, Class T2-M1, Class
T2-M2, and Class T2-B Interests shall be allocated among those interests in
proportion to allocations of principal payments among the Corresponding
Classes of Certificates. Interest that has accrued on the Class T2-D as of any
Distribution Date in an amount equal to 1% of the increase in the
Overcollateralization Amount from the preceding Distribution Date shall be
deferred and added to the principal balance of the Class T2-D Interest. The
amount of interest so deferred in accordance with the preceding sentence shall
be distributed as principal on such date among the Class T2-A1, Class T2-A2,
Class T2-M1, Class T2-M2, and Class T2-B Interests in proportion to the manner
in which Monthly Excess Interest is applied to pay principal on the
Corresponding Class of Certificates.
(e) On each Distribution Date, Realized losses attributable to the
Mortgage Loans for such date shall be allocated 98% to the Class T2-C
Interest. The remaining 2% shall be allocated to the Class T2-D Interest to
the extent that the principal balance of the Class T2-D Interest exceeds the
aggregate principal balance of the Class T2-A1, Class T2-A2, Class T2-M1,
Class T2-M2, and Class T2-B Interests, and then equally between the Class T2-D
Interest and the Class T2-A1, Class T2-A2, Class T2-M1, Class T2-M2, and Class
T2-B Interests. Realized Losses allocated to the Class T2-A1, Class T2-A2,
Class T2-M1, Class T2-M2, and Class T2-B Interests shall be allocated among
those Interests in a manner such that the principal balance of each such
interest will equal 1% of the principal balance of the Corresponding Class of
Certificate.
(f) On each Distribution Date, Net Prepayment Interest Shortfalls
shall be allocated among the Class T2-C, Class T2-D, Class T2-A1, Class T2-A2,
Class T2-M1, Class T2-M2, and Class T2-B Interests in proportion to their
rights to receive interest.
(g) On each Distribution Date, the Class T3-A1, Class T3-A2, Class
T3-M1, Class T3-M2, and Class T3-B Interests shall be entitled to receive
principal and interest payments that correspond to those required to be made
on the Corresponding Class of Certificates (determined without regard to any
amounts paid from the Basis Risk Reserve Fund). Interest that accrues with
respect to the Class T3-E, Class T3-F, and Class T3-G Interests shall be
distributed as Monthly Excess Interest. Interest that accrues on the Class
T3-E, Class T3-F, and Class T3-G Interests, shall not itself bear interest.
(h) Realized Losses and Net Prepayment Interest Shortfalls shall be
allocated among the interests in REMIC 3 in the same manner that such items
are to be allocated among the Corresponding Classes of Certificates.
Section 5.07. Basis Risk Reserve Fund. (a) On the Closing Date, the
Trustee shall establish and maintain in its name, in trust for the benefit of
the holders of the Class A1, Class A2, Class M1, Class M2 and Class B
Certificates, a Basis Risk Reserve Fund, into which the Depositor shall
deposit $1,000. The Basis Risk Reserve Fund shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not
be commingled with, any other moneys, including, without limitation, other
moneys of the Trustee held pursuant to this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less
than 0.25%, the Trustee shall transfer the Required Reserve Fund Deposit from
the Certificate Account to the Basis Risk Reserve Fund pursuant to Section
5.02(d)(ix). The Trustee shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(d)(ii).
(c) Funds in the Basis Risk Reserve Fund shall be invested in
Eligible Investments. Any earnings on such amounts shall be distributed to the
related Class X Certificate pursuant to Section 5.02(d)(x). The Class X
Certificate shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein. The Class X
Certificateholder shall be liable for any losses incurred on such investments.
In the absence of written instructions from the Class X Certificateholder as
to investment of funds on deposit in the Basis Risk Reserve Fund, such funds
shall be invested in the Evergreen Money Market Treasury Institute Fund. Any
amounts on deposit in the Basis Risk Reserve Fund in excess of the Required
Reserve Fund Deposit on any Distribution Date shall be distributed to the
Class X Certificate on the following Distribution Date.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Basis Risk Reserve Fund shall be distributed to the Class X Certificateholder
pursuant to Section 5.02(d)(x).
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during the
continuance of an Event of Default, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee provided for in this Agreement shall not be construed as
a duty of the Trustee. If an Event of Default has occurred and has not
otherwise been cured or waived, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs unless the Trustee
is acting as Master Servicer, in which case it shall use the same degree of
care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer, to the Trustee pursuant to
this Agreement, and shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits).
No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates as
provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default (other
than resulting from a failure by the Master Servicer (i) to remit
funds (or to make Advances) or (ii) to furnish information to the
Trustee when required to do so) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office, and such notice references the Holders of
the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; and
(iv) The Trustee shall not be responsible for any act or
omission of the Master Servicer, the Depositor or any Custodian.
(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 perform services under this
Agreement, or 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 timely payment of its fees and expenses or 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 rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to
the Trustee pursuant to this Agreement believed by the Trustee to be genuine
and to have been signed or presented by the proper party or parties.
Section 6.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel and any advice of
its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same
appears regular on its face), unless requested in writing to do so by
Holders of at least a majority in Class Principal Amount (or
Percentage Interest) of each Class of Certificates; provided,
however, that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable
expense thereof shall be paid by the Holders requesting such
investigation;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians or attorneys, which agents, custodians or
attorneys shall have any and all of the rights, powers, duties and
obligations of the Trustee conferred on them by such appointment,
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto, in each case at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence
or willful misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of
the Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally, and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans to the
Trust Fund by the Depositor or for the use or application of any funds
deposited into the Collection Account, the Certificate Account, any Escrow
Account or any other fund or account maintained with respect to the
Certificates. The Trustee shall not be responsible for the legality or
validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. Except as otherwise provided herein, the Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04. Trustee May Own Certificates. The Trustee and any
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust
business with the other parties hereto with the same rights it would have if
it were not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee may
at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor and the Master Servicer. Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee, one copy to the successor trustee and one
copy to the Master Servicer. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating, then the
Depositor shall remove the Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed, one copy to the successor trustee and one copy to the Master
Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee and to the Depositor remove the Trustee by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee so removed and one copy to the Master Servicer; the
Depositor shall thereupon use its best efforts to appoint a mutually
acceptable successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee (or assign to the Trustee its
interest under each Custodial Agreement, to the extent permitted thereunder)
all Mortgage Files and documents and statements related to each Mortgage Files
held by it hereunder, and shall duly assign, transfer, deliver and pay over to
the successor trustee the entire Trust Fund, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the record or copies thereof
maintained by the predecessor trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor trustee all such rights,
powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Master Servicer shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to the Rating Agencies. The expenses of
such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor to the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Percentage Interest) of each Class of
Certificates shall each have the power from time to time to appoint one or
more Persons to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside the state where the Trustee has its principal place of business where
such separate trustee or co-trustee is necessary or advisable (or the Trustee
has been advised by the Master Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust
Fund or any portion thereof in any such jurisdiction, shall be
exercised and performed by such separate trustee, co-trustee, or
custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more
than 50% of the Aggregate Voting Interests of the Certificates may at
any time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Depositor shall pay the reasonable compensation of the
co-trustees (which compensation shall not reduce any compensation payable to
the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one
or more Authenticating Agents which shall be authorized to act on behalf of
the Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense incurred in connection
with any legal proceeding and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder, including the
costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder,
provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer and the Holders written
notice thereof promptly after the Trustee shall have knowledge
thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 6.11, the Trust Fund shall not be liable for settlement of
any such claim by the Trustee entered into without the prior consent
of the Depositor, which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Fees and Expenses of Trustee. In addition to the
Trustee Fees, the Trustee will receive compensation and reimbursement or
payment of its expenses hereunder and under each Custodial Agreement as
provided in the letter agreement between the Depositor and the Trustee, a copy
of which is attached hereto as Exhibit P.
Section 6.13. Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Master Servicer, the Trustee shall request the Master Servicer to make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor. (a) The occurrence of any one or more of the following events
shall constitute an "Event of Default"):
(i) Any failure by the Master Servicer to furnish the
Trustee the Mortgage Loan data sufficient to prepare the reports
described in Section 4.03(a) which continues unremedied for a period
of one Business Day after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Trustee
or to such Master Servicer and the Trustee by the Holders of not less
than 25% of the Class Principal Amount (or Percentage Interest) of
each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days (or 15
days, in the case of a failure to maintain any Insurance Policy
required to be maintained pursuant to this Agreement) after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to such Master Servicer by the
Trustee, or to such Master Servicer and the Trustee by the Holders of
not less than 25% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or
any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial
condition or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to such
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall
dispose of all or substantially all of its assets, or consolidate
with or merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does not
meet the criteria for a successor servicer as specified in Section
9.27 hereof; or
(vii) If a representation or warranty set forth in Section
9.14 hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee, or to the
Master Servicer and the Trustee by the Holders of not less than 25%
of the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the
Master Servicer hereunder or an assignment of this Agreement by the
Master Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Percentage Interest) of each Class of
Certificates; or
(ix) Any Servicer at any time is not either an FNMA- or
FHLMC- approved servicer, and the Master Servicer has not terminated
the rights and obligations of such Servicer under the applicable
Servicing Agreement and replaced such Servicer with an FNMA- or
FHLMC-approved servicer within 45 days of the absence of such
approval; or
(x) Any failure of the Master Servicer to remit to the
Trustee any payment required to be made to the Trustee for the
benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates affected thereby, terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. If an Event of Default
described in clause (x) of this Section 6.14 shall occur, then, in each and
every case, subject to applicable law, the Trustee, by notice in writing to
the Master Servicer, shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer, and only
in its capacity as Master Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying the Servicers 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.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v) and (ix) to
the extent such reimbursement relates to the period prior to such Master
Servicer's termination.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof, shall promptly notify the Rating Agencies of the
nature and extent of such Event of Default. The Trustee shall immediately give
written notice to the Master Servicer upon such Master Servicer's failure to
remit funds on the Deposit Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted to the Master Servicer hereunder. The Trustee and such
successor shall take such actions, consistent with this Agreement, as shall be
necessary to effectuate any such succession and may make other arrangements
with respect to the servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee
and any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the master servicing
functions and providing the Trustee and successor master servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer,
as applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering, cash, documents or records to it, (ii)
the failure of the Master Servicer to cooperate as required by this Agreement,
(iii) the failure of the Master Servicer to deliver the Mortgage Loan data to
the Trustee as required by this Agreement or (iv) restrictions imposed by any
regulatory authority having jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by
the Master Servicer in the performance of its obligations hereunder, except
that a default in the making of any required deposit to the Certificate
Account that would result in a failure of the Trustee to make any required
payment of principal of or interest on the Certificates may only be waived
with the consent of 100% of the affected Certificateholders. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to Certificateholders, unless such Event of Default shall have been
cured or waived prior to the issuance of such notice and within such 45-day
period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement; provided, however, that the Trustee shall be under no
obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (i) the
conducting or defending of any administrative action or litigation hereunder
or in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal
liability or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default. In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans. (a) The respective
obligations and responsibilities of the Trustee and the Master Servicer
created hereby (other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02, the obligation of the Master
Servicer to make a final remittance to the Trustee for deposit into the
Certificate Account pursuant to Section 4.01 and the obligations of the Master
Servicer to the Trustee pursuant to Sections 9.10 and 9.14) shall terminate on
the earlier of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the sale of the property held by the Trust Fund in accordance with
Section 7.01(b) or (c); provided, however, that in no event shall the Trust
Fund created hereby continue beyond the earlier of (i) the expiration of 21
years from the death of the last survivor of the descendants of 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 on after the date on which the
Aggregate Loan Balance is less than 10% of the Cut-off Date Aggregate Loan
Balance, the Class X Certificateholder has the option to cause the Trust Fund
to adopt a plan of complete liquidation pursuant to Section 7.03(a)(i) hereof
to sell all of its property. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Class X Certificateholder at a price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest
accrued thereon at the applicable Mortgage Rate with respect to any Mortgage
Loan to the Due Date in the Collection Period immediately preceding the
related Distribution Date to the date of such repurchase and (ii) the fair
market value of any REO Property and any other property held by any REMIC,
such fair market value to be determined by an appraiser or appraisers mutually
agreed upon by the Master Servicer and the Trustee. If the Class X
Certificateholder has not exercised such option by the close of business on
the third Distribution Date following the Distribution Date specified above,
the Depositor shall have the option to cause the Trust Fund to adopt a plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its
property to the Depositor at the Termination Price. If the Depositor elects to
exercise such right, then upon receipt of notice thereof the Trustee shall
promptly notify the Class X Certificateholder thereof, in writing, and shall
effect the transfer of the Mortgage Loans and related property to the
Depositor as provided herein only if the Trustee does not receive notification
from the Class X Certificateholder within ten Business Days of the sending of
such notice that such Certificateholder intends to promptly exercise its
option to purchase such Mortgage Loans and related property. The Master
Servicer or any Servicer (or the Trustee, if applicable) shall be reimbursed
from the Termination Price for any Mortgage Loan or related REO Property for
any Advances made or other amounts advanced with respect to the Mortgage Loans
that are reimbursable to the Master Servicer or any Servicer under this
Agreement or the applicable Servicing Agreement (or to the Trustee hereunder),
together with any accrued and unpaid compensation due to the Master Servicer
and any Servicer hereunder or thereunder.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
upon (x) the sale of all of the property of the Trust Fund by the Trustee
pursuant to Section 7.01(b) or (y) upon the final payment or other liquidation
of the last Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Master Servicer and the Certificate Registrar at the time such
notice is given to Holders of the Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Certificates shall
terminate and the Trustee shall terminate, or request the Master Servicer to
terminate, the Collection Account it maintains, the Certificate Account and
any other account or fund maintained with respect to the Certificates, subject
to the Trustee's obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
Section 7.03. Additional Trust Fund Termination Requirements. (a) Any
termination of the Trust Fund shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request of
the party exercising the option to purchase all of the Mortgage Loans pursuant
to Section 7.01(b)), and subsequently receives, an Opinion of Counsel (at the
expense of such requesting party), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (ii) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the Certificates, upon notification by the Directing
Holder or the Depositor that it intends to exercise its option to
cause the termination of the Trust Fund, the Trustee shall adopt a
plan of complete liquidation of the Trust Fund on behalf of each
REMIC, meeting the requirements of a qualified liquidation under the
REMIC Provisions;
(ii) Any sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after the
time of adoption of such a plan of complete liquidation and prior to
the time of making of the final payment on the Certificates;
(iii) On the date specified for final payment of the
Certificates, the Trustee shall make final distributions of principal
and interest on the Certificates in accordance with Section 5.02 and,
after payment of, or provision for any outstanding expenses,
distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such
final payment (other than cash retained to meet claims), and the
Trust Fund (and each REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Certificates
or the final distribution or credit to the Holders of the Residual
Certificates be made after the 89th day from the date on which the
plan of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the related REMIC and (ii) agrees to
take such other action as may be necessary to adopt a plan of complete
liquidation of the related REMIC, which authorization shall be binding upon
all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or the operation and management of the Trust Fund, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount (or Percentage Interest) of Certificates of each Class
affected thereby shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require
against the cost, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for sixty days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request has been given such Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Master Servicer. Such instrument or instruments (as
the action embodies therein and evidenced thereby) are herein sometimes
referred to as an "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agents shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee and Master Servicer, if made in the manner provided in
this Section. Each of the Trustee and Master Servicer shall promptly notify
the other of receipt of any such instrument by it, and shall promptly forward
a copy of such instrument to the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders,
by their purchase and acceptance of the Certificates, appoint Norwest Bank
Minnesota, National Association, as Master Servicer. For and on behalf of the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of each Servicing Agreement. Notwithstanding
anything in this Agreement, any Servicing Agreement or any Loss Mitigation
Advisory Agreement to the contrary, the Master Servicer shall have no duty or
obligation to enforce any Loss Mitigation Advisory Agreement or to supervise,
monitor or oversee the activities of any Servicer under its Loss Mitigation
Advisory Agreement with respect to any action taken or not taken by a Servicer
at the direction of the Directing Holder or pursuant to a recommendation of
the Loss Mitigation Advisor.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy. (a) The Master Servicer, at its
expense, shall maintain in effect a Master Servicer Fidelity Bond and a Master
Servicer Errors and Omissions Insurance Policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer's behalf, and covering errors and omissions in the performance
of the Master Servicer's obligations hereunder. The Master Servicer Errors and
Omissions Insurance Policy and the Master Servicer Fidelity Bond shall be in
such form and amount that would be consistent with coverage customarily
maintained by master servicers of mortgage loans similar to the Mortgage
Loans. The Master Servicer shall (i) require each Servicer to maintain an
Errors and Omissions Insurance Policy and a Servicer 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.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve
funds relating to the Mortgage Loans. The total losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
such reports together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such bonding companies
or insurers, the Master Servicer shall promptly furnish a copy of such report
to the Trustee. Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly remitted by
the Master Servicer to the Trustee for deposit into the Certificate Account.
Any amounts relating to the Mortgage Loans collected by the applicable
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,
beginning May 31, 2001. 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 applicable
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 knowingly 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 such 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 (but not any Prepayment Premium)
and (ii) extend the due dates for payments due on a Mortgage Note for a period
not greater than 120 days; provided, however, that the maturity of any
Mortgage Loan shall not be extended past the date on which the final payment
is due on the latest maturing Mortgage Loan as of the Cut-off Date. In the
event of any extension described in clause (ii) above, the Master Servicer
shall make or cause such Servicer to make Advances on the related Mortgage
Loan in accordance with the provisions of Section 5.04 on the basis of the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such extension. Notwithstanding anything to the contrary in this
Agreement, the Master Servicer shall not, unless default by the related
Mortgagor is, in the reasonable judgment of the Master Servicer, imminent,
knowingly 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 a Servicer shall be deducted from amounts remitted to the Master Servicer
by such 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 applicable Servicing Agreement,
terminate the rights and obligations of such Servicer thereunder and either
act as servicer of the related Mortgage Loans or cause Lehman Capital to 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 (i)
from a general recovery resulting from such enforcement only to the extent, if
any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loans, (ii) from a specific recovery of costs, expenses or attorneys'
fees against the party against whom such enforcement is directed, and then,
(iii) to the extent that such amounts are insufficient to reimburse the Master
Servicer for the costs of such enforcement, from the Collection Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. (a)
To the extent provided in the 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 to deposit therein any collections of amounts received
with respect to amounts due for taxes, assessments, water rates, Standard
Hazard Insurance Policy premiums or any comparable items for the account of
the Mortgagors. Withdrawals from any Escrow Account may be made (to the extent
amounts have been escrowed for such purpose) only in accordance with the
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 any Servicer in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable by
the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
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 provide for the servicing of
the Mortgage Loans by a successor Servicer to be appointed as provided in the
applicable Servicing Agreement.
The Master Servicer agrees that it will use its best efforts to
effect the transfer of servicing to a successor Servicer within the first one
to two weeks after the termination of a Servicer. The parties acknowledge that
notwithstanding the preceding sentence, there may be a transition period, not
to exceed 60 days from the above-mentioned two-week period, in order to effect
the transfer of servicing to a successor Servicer.
Notwithstanding the foregoing provisions to the extent applicable to
termination of the rights and obligations of any Servicer, the Directing
Holder, if any, shall have the rights accorded to it under the applicable
Servicing Agreement.
(b) If the Master Servicer acts as a Servicer, it will not assume
liability for the representations and warranties of any Servicer, if any, that
it replaces.
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 ensure that the Mortgage Loans are
serviced in accordance with the provisions of this Agreement and shall 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 each Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section 9.09. No Contractual Relationship Between Any Servicer and
Trustee or Depositor. Any Servicing Agreement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving any
Servicer in its capacity as such and not as an originator shall be deemed to
be between such Servicer, Lehman Capital and the Master Servicer, and the
Trustee and the Depositor shall not be deemed parties thereto and shall have
no claims, rights, obligations, duties or liabilities with respect to 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.
(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 related Servicer 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
applicable 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 B-4
to the applicable Custodial Agreement, 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 Servicer
to return the Mortgage File to the Trustee or applicable Custodian, as
applicable, when the need therefor by the Master Servicer or Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the trust receipt shall be released by the Trustee or
the applicable 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 Lehman Capital to the Depositor not to constitute a sale, the
Trustee shall have a security interest in the Mortgage Loans and in all
Mortgage Files representing such Mortgage Loans and in all funds now or
hereafter held by, or under the control of, 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 the applicable 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, as of the Closing Date
that:
(i) it is validly existing and in good standing under the
laws of the United States of America as a national banking
association, and as Master Servicer has full power and authority to
transact any and all business contemplated by this Agreement and to
execute, deliver and comply with its obligations under the terms of
this Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the part of
the Master Servicer;
(ii) the execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Master Servicer
is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and
adversely affect the Master Servicer's ability to perform its
obligations under this Agreement;
(iii) this Agreement constitutes, assuming due
authorization, execution and delivery hereof by the other respective
parties hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law);
(iv) the Master Servicer is not in default with respect to
any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance by
the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the
primary business of which is the servicing of conventional
residential mortgage loans, is an FNMA- and FHLMC-approved
seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the
Master Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02
each of which is in full force and effect, and each of which provides
at least such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and expenses resulting from any claim, demand, defense or assertion based on
or grounded upon, or resulting from, a breach of the Master Servicer's
representations and warranties contained in Section 9.14(a). It is understood
and agreed that the enforcement of the obligation of the Master Servicer set
forth in this Section to indemnify the Depositor and the Trustee as provided
in this Section constitutes the sole remedy (other than as set forth in
Section 6.14) of the Depositor and the Trustee, respecting a breach of the
foregoing representations and warranties. Such indemnification shall survive
any termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer or the Trustee or notice thereof by any one of such
parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Depositor's representations and warranties contained in Sections 2.03(a)
through (f) hereof. It is understood and agreed that the enforcement of the
obligation of the Depositor set forth in this Section to indemnify the Master
Servicer as provided in this Section constitutes the sole remedy of the Master
Servicer respecting a breach by the Depositor of the representations and
warranties in Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out
of the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. On or before the
Closing Date, the Master Servicer shall cause to be delivered to the
Depositor, Lehman Brothers Inc. and the Trustee 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 knowingly permit any Servicer
(consistent with the applicable Servicing Agreement) to take, any action that
would result in noncoverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of such Master Servicer or such
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 knowingly 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. The Trustee, at
the direction of the Depositor, shall cancel the coverage of any PMI-Insured
Mortgage Loan or MGIC-Insured Mortgage Loan under the related Primary Mortgage
Insurance Policy.
(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, in the case of the MGIC-insured
Mortgage Loans, Life Bank), 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 the applicable custodian 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 the applicable Custodians, if any, as directed by the Trustee), upon the
execution or receipt thereof the originals of the Primary Mortgage Insurance
Policies and any certificates of renewal thereof, and such other documents or
instruments that constitute portions of the Mortgage File that come into the
possession of the Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. [RESERVED]
Section 9.21. Compensation to the Master Servicer. The Master
Servicer shall (i) be entitled, at its election, either (a) to pay itself the
Master Servicing Fee, as reduced pursuant to Section 5.05, in respect of the
Mortgage Loans out of any Mortgagor payment on account of interest prior to
the deposit of such payment in the Collection Account it maintains or (b) to
withdraw from the Collection Account, subject to Section 5.05, the Master
Servicing Fee to the extent permitted by Section 4.02(iv). The Master Servicer
shall also be entitled, at its election, either (a) to pay itself the Master
Servicing Fee in respect of each delinquent Mortgage Loan master serviced by
it out of Liquidation Proceeds in respect of such Mortgage Loan or other
recoveries with respect thereto to the extent permitted in Section 4.02 or (b)
to withdraw from the Collection Account it maintains the Master Servicing Fee
in respect of each Liquidated Mortgage Loan to the extent of such Liquidation
Proceeds or other recoveries, to the extent permitted by Section 4.02.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any Prepayment
Premium) shall be retained by the Master Servicer (or the 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. 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 cause the applicable Servicer, to the extent provided
in the applicable Servicing Agreement 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 each Servicer, upon the final disposition
of any REO Property, shall be entitled to reimbursement for any related
unreimbursed Advances and other unreimbursed advances as well as any unpaid
Master Servicing Fees or Servicing Fees from Liquidation Proceeds received in
connection with the final disposition of such REO Property; provided, that any
such unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees may be reimbursed or paid, as the case may be, prior to final
disposition, out of any net rental income or other net amounts derived from
such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the 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. Preparation of Tax Returns and Other Reports. (a) The
Master Servicer shall prepare in accordance with the provisions of Article X,
or cause to be prepared on behalf of the Trust Fund, based upon information
calculated in accordance with this Agreement pursuant to instructions given by
the Depositor, and the Trustee shall file, federal tax returns and appropriate
state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and the Trustee shall forward
copies to the Depositor of all such returns and Form 1099 information and such
other information within the control of the Trustee as the Depositor may
reasonably request in writing, and shall forward to each Certificateholder
such forms and furnish such information within the control of the Trustee as
are required by the Code and the REMIC Provisions to be furnished to them, and
the Master Servicer or the Trustee will prepare, to the extent that they are
familiar with applicable state requirements, and the Trustee will file, annual
reports (other than tax returns), if any, required by applicable state
authorities, will file copies of this Agreement with the appropriate state
authorities as may be required by applicable law, and will prepare and
disseminate to Certificateholders Form 1099 (or otherwise furnish information
within the control of the Trustee) to the extent required by applicable law.
The Master Servicer will indemnify the Trustee for any liability of or
assessment against the Trustee resulting from any error in any of such tax or
information returns resulting from errors in the information provided by such
Master Servicer (other than any such information that is derived solely from
information provided by a Servicer).
(b) The Master Servicer shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund, an application for an
employer identification number on IRS Form SS-4 or by any other acceptable
method. The Master Servicer, upon receipt from the IRS of the Notice of
Taxpayer Identification Number Assigned, shall promptly forward a copy of such
notice to the Trustee and the Depositor.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K and thereafter the Master Servicer shall prepare or
cause to be prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly
current reports on Form 8-K, on behalf of the Trust Fund, as may be required
by applicable law, for filing with the Securities and Exchange Commission (the
"SEC"). The Trustee will sign each such report on behalf of the Trust Fund.
The Master Servicer will forward a copy of each such report to the Depositor
promptly after such report has been filed with the SEC. The Master Servicer
agrees to use its best efforts to seek to terminate such filing obligation
promptly after the period during which such filings are required under the
Securities Exchange Act of 1934. Promptly after filing a Form 15 or other
applicable form with the SEC in connection with such termination, the Master
Servicer shall deliver to the Depositor a copy of such form together with
copies of confirmations of receipt by the SEC of each report filed therewith
on behalf of the Trust Fund.
Section 9.24. Reports to the Trustee. (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall forward to the
Trustee, upon request, 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, upon request, Attention: Contract
Finance, and, upon request, to any Certificateholders (or by the Trustee at
the Master Servicer's expense if the Master Servicer shall fail to provide
such copies to the Certificateholders (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall be unaware of the Master Servicer's failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
(c) The Master Servicer shall prepare a monthly statement to
Certificateholders which will set forth certain information regarding the
Certificates and the Mortgage Pools as provided in Section 4.03.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee and the Rating Agencies on or
before May 31 of each year, commencing on May 31, 2001, 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 (or any of its Affiliates) has, during the course of any
fiscal year, directly serviced any of the Mortgage Loans, then the Master
Servicer at its expense shall cause a nationally recognized firm of
independent certified public accountants to furnish a statement to the
Trustee, the Rating Agencies and the Depositor on or before May 31 of each
year, commencing on May 31, 2001 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. In particular, the Master Servicer shall not be liable for (i)
any course of action taken by the Servicers with respect to loss mitigation of
defaulted Mortgage Loans at the direction of the Loss Mitigation Advisor or
the Directing Holder pursuant to Section 2.02 of any Loss Mitigation Advisory
Agreement or (ii) 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.
Section 9.32. Alternative Index. In the event that the Index for any
Mortgage Loan, as specified in the related Mortgage Note, becomes unavailable
for any reason, the Master Servicer shall select an alternative index, which
in all cases shall be an index that constitutes a qualified rate on a regular
interest under the REMIC Provisions, in accordance with the terms of such
Mortgage Note or, if such Mortgage Note does not make provision for the
selection of an alternative index in such event, the Master Servicer shall,
subject to applicable law, select an alternative index based on information
comparable to that used in connection with the original Index and, in either
case, such alternative index shall thereafter be the Index for such Mortgage
Loan.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) REMIC elections as set forth
in the Preliminary Statement shall be made by the Trustee on Forms 1066 or
other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be as
designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Master Servicer shall pay any and all tax related expenses
(not including taxes) of each REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Master Servicer in fulfilling
its duties hereunder (including its duties as tax return preparer). The Master
Servicer shall be entitled to reimbursement of expenses to the extent provided
in clause (i) above from the Collection Account.
(d) The Master Servicer shall prepare, and the Trustee shall sign and
file, all of each REMIC's federal and state tax and information returns as
such REMIC's direct representative. The expenses of preparing and filing such
returns shall be borne by the Master Servicer.
(e) The Master Servicer or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Master Servicer shall provide
(i) to the Treasury or other governmental authority such information as is
necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates
shall take any action or cause any REMIC to take any action necessary to
create or maintain the status of any REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Master Servicer nor the Holder of any
Residual Certificate shall knowingly take any action, cause any REMIC to take
any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of any REMIC as a REMIC or (ii) result in the
imposition of a tax upon any REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth on Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless the Trustee and the Master
Servicer have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not endanger such status or result in the imposition of such a tax. In
addition, prior to taking any action with respect to any REMIC or the assets
therein, or causing any REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee and the Master Servicer, or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to any REMIC, and no such
Person shall take any such action or cause any REMIC to take any such action
as to which the Trustee or the Master Servicer has advised it in writing that
an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available,
out of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the
case may be.
(h) The Master Servicer shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) On or before April 15 of each calendar year beginning in 2001,
the Master Servicer shall deliver to the Trustee and each Rating Agency an
Officer's Certificate stating, without regard to any actions taken by any
party other than the Master Servicer, the Master Servicer's compliance with
the provisions of this Section 10.01.
(l) The Trustee shall treat the Basis Risk Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation Section 1.860G-2(h)
that is owned by the Holder of the Class X Certificate and that is not an
asset of the REMIC. The Trustee shall treat the rights of the Class A1, Class
A2, Class M1, Class M2 and Class B Certificateholders to receive payments from
any Basis Risk Reserve Fund in the event of a Basis Risk Shortfall as rights
in an interest rate cap contract written by the Class X Certificateholder in
favor of the Class A1, Class A2, Class M1, Class M2 and Class B
Certificateholders. Thus, each Class A1, Class A2, Class M1, Class M2 and
Class B Certificate shall be treated as representing not only ownership of
regular interests in REMIC 4, but also ownership of an interest in two
discrete interest rate cap contracts. For purposes of determining the issue
prices of the REMIC 4 regular interests, the Trustee shall assume that the
interest rate cap contracts have only a nominal value of $1,000 each.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to any REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of any such REMIC as a REMIC or of the interests therein
other than the Residual Certificates as the regular interests therein, (b)
affect the distribution of interest or principal on the Certificates, (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement) or (d) cause any
such REMIC to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. (a) In the event that any REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Master Servicer of its
duties and obligations set forth herein, the Master Servicer shall indemnify
the Holder of the related Residual Certificate against any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Master Servicer shall not be liable
for any such Losses attributable to the action or inaction of the Trustee, the
Depositor, the Class X Certificateholder or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the Master Servicer has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of such Residual Certificate
now or hereafter existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Master Servicer have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Master Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the Certificates).
(b) If the Internal Revenue Service determines that one of the REMICs
established hereunder recognized income from a prohibited transaction within
the meaning of Section 860F(a)(2) of the Code as a result of the lapse of the
Class X Certificateholder's right to effect a Special Termination of the Trust
Fund by purchasing the assets of the Trust Fund, then Lehman Capital shall
indemnify the Trust Fund for any such tax and any tax imposed upon such
indemnification.
Section 10.04. REO Property. (a) Notwithstanding any other provision
of this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not, and shall, to the extent provided in the 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 any REMIC as a REMIC and any income generated
for any REMIC by the REO Property would not result in the imposition of a tax
upon such REMIC.
(b) The Master Servicer shall, or (to the extent provided in its
Servicing Agreement) 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 cause the applicable Servicer (to the extent provided in
its Servicing Agreement) dispose of any REO Property within three years of its
acquisition by the Trust Fund unless the Trustee has received a grant of
extension from the Internal Revenue Service to the effect that, under the
REMIC Provisions and any relevant proposed legislation and under applicable
state law, the REMIC may hold REO Property for a longer period without
adversely affecting the REMIC status of such REMIC or causing the imposition
of a Federal or state tax upon such REMIC. If the Trustee has received such an
extension, then the Trustee, or the Master Servicer, acting on its behalf
hereunder, or the applicable Servicer shall continue to attempt to sell the
REO Property for its fair market value for such period longer than three years
as such extension permits (the "Extended Period"). If the Trustee has not
received such an extension and the Trustee, or the Master Servicer, or the
applicable Servicer, acting on behalf of the Trustee hereunder is unable to
sell the REO Property within 33 months after its acquisition by the Trust Fund
or if the Trustee has received such an extension, and the Trustee, or the
Master Servicer acting on behalf of the Trustee hereunder, or the applicable
Servicer 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, 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 or the
applicable Servicer) in an auction reasonably designed to produce a fair price
prior to the expiration of the three-year period or the Extended Period, as
the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time
to time by the Depositor, the Master Servicer and the Trustee, without notice
to or the consent of any of the Holders, (i) to cure any ambiguity, (ii) to
cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document, or to correct or supplement
any provision herein which may be inconsistent with any other provisions
herein, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, adversely affect the status of any REMIC created pursuant to this
Agreement, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant
to this paragraph, the Trustee may require an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be
deemed not to adversely affect in any material respect any Holder, if the
Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce the then current rating
assigned to the Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall be made unless the
Trustee receives an Opinion of Counsel, at the expense of the party requesting
the change, that such change will not adversely affect the status of any REMIC
as a REMIC or cause a tax to be imposed on such REMIC; and provided further,
that no such amendment may (i) reduce in any manner the amount of, or delay
the timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Principal Amount
(or Percentage Interest) of Certificates of each Class, the Holders of which
are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount (or Percentage Interest) of each
Class of Certificates affected thereby. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
any Class of Book-Entry Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in 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 Percentage Interest), Certificates owned by
the Depositor, the Master Servicer, the Trustee, any Servicer, the PMI
Insurer, the Loss Mitigation Advisor or Affiliates thereof are not to be
counted so long as such Certificates are owned by the Depositor, the Master
Servicer, the Trustee, any Servicer, the PMI Insurer, the Loss Mitigation
Advisor or any Affiliate thereof.
Section 11.05. Provision of Information. (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor, Master
Servicer and the Trustee agree to cooperate with each other to provide to any
Certificateholders and to any prospective purchaser of Certificates designated
by such Certificateholder, upon the request of such Certificateholder or
prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in providing such information shall be reimbursed by the Depositor.
(b) The Master Servicer will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 9.23(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Master Servicer in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to the Depositor, Attention: Contract
Finance, a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Structured Asset Securities
Corporation, 200 Vesey Street, 12th Floor, New York, New York 10285,
Attention: Mark Zusy, (b) in the case of the Trustee, First Union National
Bank, 401 South Tryon Street, NC1179, Charlotte, North Carolina 28288-1153,
Attention: Structured Finance Trust Services and (c) in the case of the Master
Servicer, Norwest Bank Minnesota, National Association, 11000 Broken Land
Parkway, Columbia, Maryland 21044; Attention: Master Servicing, or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Section
11.14.
Section 11.12. Special Notices to the Rating Agencies. (a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14;
(vi) the making of a final payment pursuant to Section 7.02;
and
(vii) any termination of the rights and obligations of any
Servicer under the applicable Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to Fitch, to:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Residential Mortgages
If to Moody's, to:
Moody's Investor Services, Inc.
99 Church Street
New York, New York 10007
Attention: Residential Mortgages
If to S&P, to:
Standard & Poor's Rating Services
55 Water Street
New York, New York
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agencies reports prepared
pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Directing Holder agrees, by
its acceptance of the Class X Certificate, that it shall provide written
notice to the Trustee and the Master Servicer thirty days prior to any
transfer or assignment by the Directing Holder of its rights under the
applicable Servicing Agreement or of the servicing thereunder or delegation of
its rights or duties thereunder or any portion thereof to any other Person
including any other Servicer under the applicable Servicing Agreement. In
addition, the ability of the Directing Holder 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, and must be a member in good standing of
MERS;
(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 such 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;
(v) The Directing Holder shall, at its cost and expense,
take such steps, or cause the terminated Servicer to take such steps,
as may be necessary or appropriate to effectuate and evidence the
transfer of the servicing of the Mortgage Loans to such successor
servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Directing Holder shall
cause the prior Servicer to timely mail to each obligor under a
Mortgage Loan any required notices or disclosures describing the
transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of
servicing, the Directing Holder shall cause the prior Servicer to
transmit to any related insurer notification of such transfer of
servicing; (C) on or prior to the effective date of such transfer of
servicing, the Directing Holder shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and any
related records or materials; (D) on or prior to the effective date
of such transfer of servicing, the Directing Holder shall cause the
prior Servicer to transfer to the successor servicer, or, if such
transfer occurs after a Remittance Date but before the next
succeeding Deposit Date, to the Master Servicer, all funds held by
the prior Servicer in respect of the Mortgage Loans; (E) on or prior
to the effective date of such transfer of servicing, the Directing
Holder shall cause the prior Servicer to, after the effective date of
the transfer of servicing to the successor servicer, continue to
forward to such successor servicer, within one Business Day of
receipt, the amount of any payments or other recoveries received by
the prior Servicer, and to notify the successor servicer of the
source and proper application of each such payment or recovery; and
(F) the Directing Holder shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such
transfer in such manner and to such extent as the successor servicer
may reasonably request.
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master
Servicer have caused their names to be signed hereto by their respective
officers hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Stanley Labanowski
-----------------------------------
Name: Stanley Labanowski
Title: Vice President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Pablo de la Caral
-----------------------------------
Name: Pablo de la Caral
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Amy Doyle
-----------------------------------
Name: Amy Doyle
Title: Assistant Vice President
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
[Reserved]
EXHIBIT B-2
[Reserved]
EXHIBIT B-3
[Reserved]
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of First Union National Bank, as trustee (the
"Trustee") under the Trust Agreement dated as of January 1, 2000, among
Structured Asset Securities Corporation, as Depositor, the Trustee and the
Master Servicer relating to Amortizing Residential Collateral Mortgage
Pass-Through Certificates, Series 2000-BC1, without recourse.
----------------------------------
[current signatory on note]
By:_______________________________
Name:
Title:
EXHIBIT C
[Reserved]
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser]
_________________________________________ (the "Purchaser"),
a _______________________ [description of type of entity]
duly organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she]
makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization"
within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code") and will not
be a "disqualified organization" as of [date of transfer],
and that the Purchaser is not acquiring a Residual
Certificate (as defined in the Agreement) for the account
of, or as agent (including a broker, nominee, or other
middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision
thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its
activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as
described in Code Section 1381(a)(2)(C), any "electing large
partnership" within the meaning of Section 775 of the Code,
or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511.
4. That the Purchaser is not, and on __________ [insert date of
transfer of Residual Certificate to Purchaser] will not be,
and is not and on such date will not be investing the assets
of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Code Section 4975 or a
person or entity that is using the assets of any employee
benefit plan or other plan to acquire a Residual
Certificate.
5. That the Purchaser hereby acknowledges that under the terms
of the Trust Agreement (the "Agreement") among Structured
Asset Securities Corporation, First Union National Bank, as
Trustee and Norwest Bank Minnesota, National Association, as
Master Servicer, dated as of January 1, 2000, no transfer of
the Residual Certificates shall be permitted to be made to
any person unless the Trustee has received a certificate
from such transferee to the effect that such transferee is
not an employee benefit plan subject to ERISA or a plan
subject to Section 4975 of the Code and is not using the
assets of any employee benefit plan or other plan to acquire
Residual Certificates.
6. That the Purchaser does not hold REMIC residual securities
as nominee to facilitate the clearance and settlement of
such securities through electronic book-entry changes in
accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local
taxes legally required to be paid with respect to such
Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate
to any person or entity (i) as to which the Purchaser has
actual knowledge that the requirements set forth in
paragraph 3, paragraph 6 or paragraph 10 hereof are not
satisfied or that the Purchaser has reason to believe does
not satisfy the requirements set forth in paragraph 7
hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax
liabilities in excess of any cash flows generated by the
interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within
the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form 4224
or successor form at the time and in the manner required by
the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the
transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax
purposes. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than a
citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under
the laws of the United States or any state thereof,
including for this purpose, the District of Columbia, or an
estate that is subject to U.S. federal income tax regardless
of the source of its income, or a trust if a court within
the United States is able to exercise primary supervision
over the administration of the trust and one or more United
States trustees have authority to control all substantial
decisions of the trust.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such
a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Master
Servicer as its agent to act as "tax matters person" of the
Trust Fund pursuant to the Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 19__.
---------------------------------
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 19__.
NOTARY PUBLIC
- ------------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 19__.
EXHIBIT D-2
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Amortizing Residential Collateral
Mortgage Pass-Through Certificates, Series 2000-BC1
_______________________ (the "Transferor") has reviewed the attached
affidavit of_____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E-1
SERVICING AGREEMENT (AMERIQUEST MORTGAGE CORPORATION)
EXHIBIT E-2
SERVICING AGREEMENT (AURORA LOAN SERVICES INC.)
EXHIBIT E-3
SERVICING AGREEMENT (LIFE BANK)
EXHIBIT E-4
SERVICING AGREEMENT (OCWEN FEDERAL BANK FSB)
EXHIBIT E-5
SERVICING AGREEMENT (OPTION ONE MORTGAGE CORPORATION)
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Amortizing Residential Collateral
Mortgage Pass-Through Certificates
Series 2000-BC1
----------------------------------------------------
Reference is hereby made to the Trust Agreement dated as of January
1, 2000 (the "Trust Agreement") among Structured Asset Securities Corporation,
as Depositor, Norwest Bank Minnesota, National Association, as Master Servicer
and First Union National 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: ___________, ____
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 2000-BC1 (the "Privately
Offered Certificates") of the Amortizing Residential Collateral Trust, Series
2000-BC1 (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within three years of the later of the date of original issuance of
the Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we
will do so only (A) to the Depositor, (B) to "qualified institutional
buyers" (within the meaning of Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (D) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of January
1, 2000 among the Depositor, Norwest Bank Minnesota, National
Association, as Master Servicer and First Union National 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.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By: ________________________________
Name:
Title:
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the
"Investor"), a [corporation duly organized] and existing under the laws
of __________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), the Trustee of
any such plan or a person acting on behalf of any such plan nor a person
using the assets of any such plan or (2) if the Investor is an insurance
company, such Investor is purchasing such Certificates with funds
contained in an "Insurance Company General Account" (as such term is
defined in Section v(e) of the Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the
Trustee and the Depositor an opinion of counsel (a "Benefit Plan
Opinion") satisfactory to the Trustee and the Depositor, and upon which
the Trustee and the Depositor shall be entitled to rely, to the effect
that the purchase or holding of such Certificate by the Investor will not
result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and
will not subject the Trustee, the Master Servicer or the Depositor to any
obligation in addition to those undertaken by such entities in the Trust
Agreement, which opinion of counsel shall not be an expense of the
Trustee, the Master Servicer or the Depositor.
3. The Investor hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, as Depositor, Norwest Bank Minnesota, National Association,
as Master Servicer, and First Union National Bank, as Trustee, dated as
of January 1, 2000, no transfer of the ERISA-Restricted Certificates
shall be permitted to be made to any person unless the Depositor and
Trustee have received a certificate from such transferee in the form
hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 199 .
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
- -----------------------------
STATE OF )
) ss:
COUNTY OF )
Personally appeared before me the above-named
________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the ____________________
of the Investor, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of _________
199_.
------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of _________, 19__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K-1
CUSTODIAL AGREEMENT (BANKERS TRUST OF CALIFORNIA, N.A.)
EXHIBIT K-2
CUSTODIAL AGREEMENT (CHASE BANK OF TEXAS, NATIONAL ASSOCIATION)
EXHIBIT K-3
CUSTODIAL AGREEMENT (LASALLE BANK N.A.)
EXHIBIT K-4
CUSTODIAL AGREEMENT (NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION)
EXHIBIT K-5
CUSTODIAL AGREEMENT (U.S. BANK TRUST NATIONAL ASSOCIATION)
EXHIBIT L-1
FIRST LIEN MASTER POLICY FOR AMORTIZING
RESIDENTIAL COLLATERAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2000-BC1
ISSUED BY PMI MORTGAGE INSURANCE CO.
EXHIBIT L-2
FORM OF MGIC MORTGAGE GUARANTY COMMITMENT/CERTIFICATES
EXHIBIT M
FORM OF PROGRAM AGREEMENT, DATED AS OF FEBRUARY 9, 2000 BETWEEN PMI
MORTGAGE INSURANCE CO. AND THE TRUSTEE
EXHIBIT N-1 through N-5
FORMS OF LOSS MITIGATION ADVISORY AGREEMENT BETWEEN THE
MURRAYHILL COMPANY, AS LOSS MITIGATION ADVISOR, AND EACH SERVICER
EXHIBIT O
LETTER AGREEMENT, DATED FEBRUARY 9, 2000 BETWEEN THE DEPOSITOR AND
THE MURRAYHILL COMPANY
EXHIBIT P
TRUSTEE'S FEE LETTER
SCHEDULE A
MORTGAGE LOAN SCHEDULE
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 January 1, 2000
(Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates Series 2000-BC1)
==============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
<S> <C> <C>
Section 1.01. Sale of Mortgage Loans.................................................................3
Section 1.02. Delivery of Documents..................................................................3
Section 1.03. Review of Documentation................................................................3
Section 1.04. Representations and Warranties of Lehman Capital.......................................3
Section 1.05. Grant Clause...........................................................................7
Section 1.06. Assignment by Depositor................................................................7
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment................................................7
Section 2.02. Entire Agreement.......................................................................7
Section 2.03. Amendment..............................................................................7
Section 2.04. Governing Law..........................................................................8
Section 2.05. Severability of Provisions.............................................................8
Section 2.06. Indulgences; No Waivers................................................................8
Section 2.07. Headings Not to Affect Interpretation..................................................8
Section 2.08. Benefits of Agreement..................................................................8
Section 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 January, 2000.
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 January 1, 2000, among the Depositor, Norwest Bank
Minnesota, National Association, as Master Servicer, and First Union National
Bank, a national banking association, as Trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified mortgage loan purchase,
transfer, sale or assignment agreements (each a "Transfer Agreement," and
together the "Transfer Agreements"), Lehman Capital has purchased from various
mortgage originators or their correspondents (each a "Transferor" and
collectively, the "Transferors"), certain conventional, adjustable and fixed
rate, fully amortizing and balloon, first and junior lien residential mortgage
loans identified on the Mortgage Loan Schedule attached hereto as Schedule A:
1. Mortgage Loan Purchase and Warranties Agreement, dated as of
April 1, 1998, between Lehman Capital, as Purchaser, and Ameriquest
Mortgage Company ("Ameriquest"), as Seller, for conventional adjustable
and fixed rate residential mortgage loans;
2. Seller's Warranties and Servicing Agreement, dated as of August
1, 1998, between Lehman Capital, as Purchaser, and Ameriquest, as Seller,
for conventional residential adjustable rate mortgage loans (Ameri Group
2);
3. Master Mortgage Loan Purchase Agreement, dated as of March 16,
1998, between DLJ Mortgage Capital, Inc ("DLJ")., as Seller, and BNC
Mortgage, Inc. ("BNC"), as Buyer ( hereinafter the "MMLPA 3/16/98"),
including: a) Assignment, Assumption and Recognition Agreement among DLJ,
Lehman Capital, BNC and Option One Mortgage Corporation ("Option One")
(hereinafter an "AARA") dated July 30, 1998 and (b) Side Letter Agreement
(hereinafter "SLA"), dated July 30, 1998, between DLJ and Lehman Capital;
4. MMLPA 3/16/98, including (a) AARA dated August 14, 1998 and (b)
SLA dated August 14, 1998;
5. MMLPA 3/16/98, including (a) AARA dated August 28, 1998 and (b)
SLA dated August 28, 1998;
6. Purchase and Warranties Agreement, dated as of August 13, 1999,
between Lehman Capital, as Purchaser, and BNC, as Seller, for adjustable
rate mortgage loans;
7. MMLPA 3/16/98, including (a) AARA dated June 23, 1998 and (b)
Side Letter Agreement dated June 23, 1998;
8. Purchase and Warranties Agreement, dated February 17, 1999,
between Lehman Capital, as Purchaser, and BNC, as Seller, for fixed and
adjustable rate mortgage loans;
9. MMLPA 3/16/98, including (a) AARA dated July 15, 1998 and SLA
dated July 15, 1998;
10. MMLPA dated 3/16/98, including (a) AARA dated November 16, 1998
and (b) SLA dated November 16, 1998;
11. MMLPA dated 3/16/98, including (a) AARA dated December 29, 1998
and (b) SLA dated December 29, 1998;
12. MMPLA dated 3/16/98, including (a) AARA dated April 29, 1998,
(b) Assignment, Assumption and Recognition Agreement dated April 29, 1998
among DLJ, Lehman Capital, BNC and Temple-Inland Mortgage Corporation
("TMC") and (c) SLA dated April 29, 1998;
13. Mortgage Loan Purchase and Warranties Agreement, dated as of
June 1, 1999, between Lehman Capital, as Purchaser, and Fieldstone
Mortgage Company ("FMC"), as Seller, for conventional, fixed and
adjustable rate, residential mortgage loans;
14. Mortgage Loan Purchase and Warranties Agreement, dated as of
October 1,1999, between Lehman Brothers Bank, FSB ("LBB"), as Purchaser,
and FMC, as Seller, for conventional, fixed and adjustable rate,
residential mortgage loans including: (a) Purchase price and Terms letter
between Lehman Capital, as Purchaser, and LBB, as Seller dated February
4, 2000 and (b) Assignment and Assumption dated February 9, 2000 between
LBB, as Assigner, and Lehman Capital, as Assignee;
15. Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of June 30, 1999, between Lehman Capital, as Purchaser, and FINAMCO, LLC,
as Seller, for conventional, fixed and adjustable rate, residential
mortgage loans;
16. Mortgage Loan Purchase and Warranties Agreement, dated as of
April 20, 1998, between Lehman Capital, as Purchaser, and First Franklin
Financial Corporation, as Seller, for conventional adjustable rate
mortgage loans (Group No. 1998-1);
17. Seller's Warranties and Servicing Agreement, dated as of May 21,
1999, between Lehman Capital, as Purchaser, and Life Bank, as Seller, for
fixed and adjustable rate, conventional first lien mortgage loans (Group
1999-1);
18. Purchase and Warranties Agreement, dated and effective as of
October 1, 1997, between Lehman Capital, as Purchaser, and Long Beach
Mortgage Company, as Seller, for adjustable rate mortgage loans under
Flow Delivery Program (Wholesale);
19. Purchase and Warranties Agreement, dated and effective as of
April 1, 1998, between Lehman Capital, as Purchaser, and Long Beach
Mortgage Company, as Seller, for fixed and adjustable rate mortgage loans
under Flow Delivery Program (Wholesale);
20. Mortgage Loan Purchase and Sale Agreement, dated as of June 1,
1999, between Lehman Capital, as Purchaser, and Chase Bank of Texas,
National Association, in its capacities as agent and representative of
two groups of lenders pursuant to Credit Agreements, for residential
fixed and adjustable rate, first and second lien mortgage loans (MCA
Financial Group);
21. Seller's Warranties and Servicing Agreement, dated as of June
23, 1999, between Lehman Capital, as Purchaser, and Option One, as
Seller, for conventional residential adjustable and fixed rate mortgage
loans (Group No. 1999 LB/00I);
22. Seller's Warranties and Servicing Agreement, dated as of
September 1, 1999, between LBB, as Purchaser, and Option One, as Seller,
for conventional residential adjustable and fixed rate mortgage loans
(Group No. 1999 LBB/00I), including (a) Purchase Price and Terms letter
between Lehman Capital, as Purchaser, and LBB, as Seller dated February
4, 2000 and (b) Assignment and Assumption dated February 9, 2000 between
LBB, as Assigner, and Lehman Capital, as Assignee.
23. Mortgage Loan Purchase and Warranty Agreement, dated as of
November 17, 1998, between Lehman Capital, as Purchaser, and Southern
Pacific Funding Corporation, as Seller, for residential mortgage loans.
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 the Transfer Agreements, and to delegate
all of its obligations thereunder, to the extent relating to the Mortgage
Loans, to the Depositor.
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 $1,353,485,000. 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 January 1, 2000 (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.
Concurrently with the execution and delivery of this Agreement, Lehman
Capital hereby assigns to the Depositor all of its rights, title and interest
under each Transfer Agreement, and delegates to the Depositor all of its
obligations thereunder, to the extent relating to the Mortgage Loans.
Concurrently with the execution hereof, the Depositor tenders the purchase
price of $1,353,485,000. 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 Transfer Agreements.
(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 custodial or escrow 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 the several custodians, including LaSalle National Bank, Banker's Trust
Company of California, N.A., Chase Bank of Texas, National Association,
Norwest Bank of Minnesota, National Association and U.S. Bank Trust, National
Association (each, a "Custodian" and, collectively, the "Custodians") for the
Depositor. Each Custodian is required to review, within 45 days following the
Closing Date, each applicable Mortgage File. If in the course of such review a
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 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 with respect to the Mortgage
Loans made by the Transferor to Lehman Capital in the related 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 a representation or warranty made under the applicable Transfer
Agreement, the Depositor shall have the right to require that Lehman Capital
cure such breach or effect such other remedy as is specified in the last
paragraph of this subsection (b). In addition, Lehman Capital hereby
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 (other than delinquency in payment)
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) 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) Approximately 99.04% of the Mortgage Loans Mortgage
evidence a valid, subsisting, enforceable and perfected first lien on the
related Mortgaged Property (including all improvements on the Mortgaged
Property). The remainder of the Mortgage Loans evidence a valid
subsisting and perfect second lien on the related Mortgage Property
(including all improvements on the Mortgage Property). The lien of the
Mortgage is subject only to: (1) in the case of second lien loans, the
first lien on the related Mortgage Property (in the case of second lien
loans only; (2) 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, (3)
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
(4) 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 or second lien, as
the case may be, 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 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;
(xi) Any and all requirements of any federal, state or local
law, including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to each Mortgage Loan have been
complied with;
(xii) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg. Section 1.860G-2; and
(xiii) Lehman Capital has no reason to believe that any
borrower will default under the related Mortgage Loan, or that
foreclosure proceedings will be commenced with respect to any Mortgage
Loan, within the six months immediately following the Closing Date.
It is understood and agreed that the representations and warranties set
forth herein and the obligations of Lehman Capital set forth in this Section
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
in this Section 1.04(b), or of any of the representations or warranties made
in the Transfer Agreements, 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 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.
For purposes of this Section, the representation and warranty in clause
(xiii) above will be deemed to have been breached as to any Mortgage Loan if
(in addition to such other facts, occurrences or conditions as will result in
a breach of such representation and warranty by its terms) a United States
Bankruptcy Court having jurisdiction in a case involving the Transferor
recharacterizes the sale of such Mortgage Loan from the Transferor to Lehman
Capital as a financing secured by such Mortgage Loan.
For purposes of this Section, the representation and warranty in clause
(xii) above shall be deemed to have been breached as to any Mortgage Loan only
if all of the following are true: (1) such Mortgage Loan had a Combined
Loan-to-Value Ratio as of the Cut-off Date in excess of 80%; (2) the related
borrower is in default under such Mortgage Loan and liquidation of such
Mortgage Loan is completed within six months after the Closing Date; (3) a
Realized Loss is incurred with respect to such Mortgage Loan and (4) within
six months after the Closing Date and prior to such liquidation, Realized
Losses had been incurred with respect to the Mortgage Loans in the aggregate
in an amount sufficient to reduce the aggregate Certificate Principal Amount
of the Subordinate Certificates to zero.
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/ Joe Kelly
--------------------------------------------
Name: Joe Kelly
Title: Vice President
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Stanley Labanowski
--------------------------------------------
Name: Stanley Labanowski
Title: Vice President
<PAGE>
SCHEDULE A
----------
MORTGAGE LOAN SCHEDULE
Execution
=============================================================================
AURORA LOAN SERVICES INC.,
as Servicer
and
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
as Seller
-----------------------------
STRUCTURED ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates, Series 2000-BC1
SERVICING AGREEMENT
Dated as of January 1, 2000
-----------------------------
=============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
<S> <C> <C>
Section 2.01 Contract for Servicing; Possession of Servicing Files.................................12
Section 2.02 Books and Records.....................................................................12
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service...................................................................13
Section 3.02 Collection of Mortgage Loan Payments..................................................15
Section 3.03 Establishment of and Deposits to Custodial Account....................................15
Section 3.04 Permitted Withdrawals From Custodial Account..........................................16
Section 3.05 Establishment of and Deposits to Escrow Account.......................................17
Section 3.06 Permitted Withdrawals From Escrow Account.............................................18
Section 3.07 Maintenance of FHA Mortgage Insurance and VA Guaranty.................................18
Section 3.08 Fidelity Bond and Errors and Omissions Insurance......................................19
Section 3.09 Notification of Adjustments...........................................................19
Section 3.10 Completion and Recordation of Assignments of Mortgage and FHA and VA Change
Notices...............................................................................19
Section 3.11 Protection of Accounts................................................................20
Section 3.12 Title, Management and Disposition of REO Property.....................................20
Section 3.13 Real Estate Owned Reports.............................................................22
Section 3.14 MERS..................................................................................22
Section 3.15 Transfer of Distressed Mortgage Loans.[[Reserved]]....................................22
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances...........................................................................22
Section 4.02 Statements to Master Servicer.........................................................23
Section 4.03 Monthly Advances by Servicer..........................................................24
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation................................................................24
Section 5.02 Annual Audit Report...................................................................25
Section 5.03 Annual Officer's Certificate..........................................................25
ARTICLE VI.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the Servicer............................25
Section 6.02 Remedies for Breach of Representations and Warranties of the Servicer.................27
Section 6.03 Additional Indemnification by the Servicer; Third Party Claims........................28
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer...............................................28
Section 7.02 Limitation on Liability of the Servicer and Others....................................29
Section 7.03 Limitation on Resignation and Assignment by the Servicer..............................29
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.................................................................30
Section 8.02 Termination Without Cause.............................................................31
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.............................................................32
Section 9.02 Costs.................................................................................34
Section 9.03 Notices...............................................................................34
Section 9.04 Severability Clause...................................................................35
Section 9.05 No Personal Solicitation..............................................................35
Section 9.06 Counterparts..........................................................................36
Section 9.07 Place of Delivery and Governing Law...................................................36
Section 9.08 Further Agreements....................................................................36
Section 9.09 Intention of the Parties..............................................................36
Section 9.10 Successors and Assigns; Assignment of Servicing Agreement.............................36
Section 9.11 Assignment by Lehman Capital..........................................................36
Section 9.12 Intended Third Party Beneficiaries....................................................37
Section 9.13 Waivers...............................................................................37
Section 9.14 Exhibits..............................................................................37
Section 9.15 General Interpretive Principles.......................................................37
Section 9.16 Reproduction of Documents.............................................................38
EXHIBITS & SCHEDULES
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Custodial Account Letter Agreement
EXHIBIT C Escrow Account Letter Agreement
SCHEDULE 1 Servicer Recordation Fees
</TABLE>
<PAGE>
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the
1st day of January, 2000, by and between LEHMAN CAPITAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS INC., a Delaware corporation (the "Seller" or "Lehman
Capital"), and AURORA LOAN SERVICES INC., a Delaware corporation ("the
Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the Seller has conveyed certain Mortgage Loans identified on
Exhibit A hereto (the "Mortgage Loans") on a servicing-retained basis to
Structured Asset Securities Corporation (the "Depositor"), which in turn has
conveyed the Mortgage Loans to First Union National Bank, a national banking
association, as trustee (the "Trustee") under a trust agreement dated as of
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer (together with any
successor Master Servicer appointed pursuant to the provisions of the Trust
Agreement, the "Master Servicer") and the Depositor.
WHEREAS, multiple classes of Certificates, including the Class X
Certificate, will be issued on the Closing Date pursuant to the Trust
Agreement, and Lehman Brothers Inc. or a nominee thereof (together with any
successor in interest thereto and any permitted assignee or transferee
thereof, the "Directing Holder") is expected to be the initial registered
Holder of the Class X Certificate.
WHEREAS, Lehman Capital desires that the Servicer service the
Mortgage Loans pursuant to this Agreement, and the Servicer has agreed to do
so, subject to the right of the Directing Holder and of the Master Servicer to
terminate the rights and obligations of the Servicer hereunder at any time and
to the other conditions set forth herein.
WHEREAS, Lehman Capital and the Servicer agree that the provisions of
the Flow Servicing Agreement dated as of September 1, 1997, between Lehman
Capital and the Servicer shall not apply to the Mortgage Loans for so long as
such Mortgage Loans remain subject to the provisions of the Trust Agreement;
WHEREAS, the Master Servicer shall be obligated under the Trust
Agreement, among other things, to supervise the servicing of the 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.
WHEREAS, Lehman Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder, pursuant to Section 9.12, is each an
intended third party beneficiary of this Agreement.
WHEREAS, Lehman Capital and the Servicer acknowledge and agree that
Lehman Capital will assign all of its rights and delegate all of its
obligations hereunder to the Trustee, and that each reference herein to either
Lehman Capital or the Seller is intended, unless otherwise specified, to mean
the Seller 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 hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
ARTICLE I.
DEFINITIONS
The following terms are defined as follows (except as otherwise
agreed in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
that service mortgage loans of the same type as such Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan serviced pursuant to
this Agreement under which the Mortgage Interest Rate is adjusted from time to
time in accordance with the terms and provisions of the Mortgage Note.
Agreement: This Servicing Agreement and all amendments hereof and
supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to late charges, fees received
with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Appraised Value: The value set forth in an appraisal made in
connection with the origination or the refinance of the related Mortgage Loan
as the value of the 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 transfer of the Mortgage to the party indicated therein, 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.
Best Efforts: Efforts determined to be reasonably diligent by the
Seller or Servicer, as the case may be, in its sole discretion. Such efforts
do not require the Seller or Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do they
require the Seller or Servicer, as the case may be, to advance or expend fees
or sums of money in addition to those specifically set forth in this
Agreement.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the States of New
York, Nebraska, Maryland and North Carolina are authorized or obligated by law
or executive order to be closed.
Certificates: Any or all of the Certificates issued pursuant to the
Trust Agreement.
Closing Date: February 9, 2000.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department
of the Treasury regulations issued pursuant thereto.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan documents.
Conventional Loan: A conventional residential first or second lien
fixed or adjustable rate Mortgage Loan that is neither FHA insured nor VA
guaranteed.
Costs: For any Person, any claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses of such Person.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Custodial Agreement: The custodial agreements relating to custody of
all of the Mortgage Loans, among the Custodian, the Trustee, and the
Depositor, dated as of January 1, 2000.
Custodians: Each of Chase Bank of Texas, National Association, U.S.
Bank Trust, National Association and Norwest Bank Minnesota, National
Association, as Custodian pursuant to a separate Custodial Agreement among
such Custodian, the Depositor and the Trustee, and any successor thereto.
Cut-off Date: January 1, 2000.
DCR: Duff & Phelps Credit Rating Co., or any successor 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.
Depositor: Structured Asset Securities Corporation, or any successor
in interest.
Directing Holder: As defined in the Recitals to this Agreement.
Due Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace. With respect to the Mortgage
Loans for which payment from the Mortgagor is due on a day other than the
first day of the month, such Mortgage Loans will be treated as if the Monthly
Payment is due on the first day of the immediately succeeding month.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the month of
the Remittance Date and ending on the first day of the month of the Remittance
Date.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of America
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository institution
or trust company (including U.S. subsidiaries of foreign depositories and the
Trustee or any agent of the Trustee, acting in its respective commercial
capacity) incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination by
federal or state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the commercial paper
or other short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company which is
the principal subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or deposit
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category or one of its two highest long-term rating
categories;
(iii) repurchase agreements collateralized by Direct Obligations
or securities guaranteed by GNMA, FNMA or FHLMC with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such broker/dealer
or bank has an uninsured, unsecured and unguaranteed obligation rated by each
Rating Agency in its highest short-term rating category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of America or
any state thereof which have a credit rating from each Rating Agency, at the
time of investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term credit rating
categories of each Rating Agency; provided, however, that securities issued by
any particular corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust Fund to
exceed 20% of the sum of the Aggregate Loan Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided, further, that such securities will not be Eligible Investments if
they are published as being under review with negative implications from
either Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on
a specified date not more than 180 days after the date of issuance thereof)
rated by each Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States of
America) held by a custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or investment,
(A) rated in the highest rating category by each Rating Agency or (B) that
would not adversely affect the then current rating by either Rating Agency of
any of the Certificates. Such investments in this subsection (viii) may
include money market mutual funds or common trust funds, including any fund
for which The First National Bank of Chicago (the "Bank"), the Trustee, the
Master Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) the Bank or an affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y) the Bank or an
affiliate thereof charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time. The Trustee specifically
authorizes the Bank or an affiliate thereof to charge and collect from the
Trustee such fees as are collected from all investors in such funds for
services rendered to such funds (but not to exceed investment earnings
thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the FNMA Guides.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.05.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event of Default: Any event set forth in Section 8.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto
and including the Federal Housing Commissioner and the Secretary of Housing
and Urban Development where appropriate under the FHA Regulations.
FHA Approved Mortgagee: A corporation or institution approved as a
mortgagee by FHA under the Act and applicable HUD regulations, and eligible to
own and service mortgage loans such as the FHA Loans.
FHA Insurance Contract: The contractual obligation of FHA respecting
the insurance of a Mortgage Loan.
FHA Loan: A residential Mortgage Loan that, as of the Cut-off Date
(or, in the case of a Qualifying Substitute Mortgage Loan, as of the date of
such substitution), is the subject of an FHA Insurance Contract as evidenced
by a mortgage insurance contract.
FHA Mortgage Insurance: Mortgage insurance authorized under the Act
and provided by the FHA.
FHA Regulations: Regulations promulgated by HUD under the National
Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with the FNMA Guides.
Fixed Rate Mortgage Loan: Any individual Mortgage Loan serviced
pursuant to this Agreement as to which the Mortgage Interest Rate set forth in
the Mortgage Note is fixed for the term of such Mortgage Loan.
Fitch: Fitch IBCA, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, or any successor
thereto.
FNMA Guides: The FNMA Selling Guide and the FNMA Servicing Guide and
all amendments or additions thereto.
GNMA: The Government National Mortgage Association, or any successor
thereto.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance. The term "HUD," for
purposes of this Agreement, is also deemed to include subdivisions thereof
such as the FHA and GNMA.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property including FHA insurance proceeds and/or VA guaranty proceeds.
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 REO Property, if the Mortgaged Property
is acquired in satisfaction of the Mortgage Loan.
Master Servicer: Norwest Bank Minnesota, National Association, or any
successor in interest, or if any successor master servicer shall be appointed
as provided in the Trust Agreement, then such successor master servicer.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Eligible Mortgage Loan: Any Mortgage Loan that has been
designated by the Servicer as recordable in the name of MERS.
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.
Monthly Advance: With respect to each Remittance Date and each
Mortgage Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan Remittance Rate)
that was due on the Mortgage Loan, and that (i) was delinquent at the close of
business on the first day of the month in which such Remittance Date occurs
and (ii) was not the subject of a previous Monthly Advance, 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. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in respect of
such Mortgage Loan, such determination shall be evidenced by a certificate of
a Servicing Officer delivered to the Master Servicer setting forth such
determination and the procedures and considerations of the Servicer forming
the basis of such determination, which shall include a copy of any broker's
price opinion and any other information or reports obtained by the Servicer
which may support such determinations.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Moody's Investors Service, Inc. or any successor in
interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated
estate in fee simple in real property securing the Mortgage Note.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in the FNMA Guides.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note.
Mortgage Loan: An individual Mortgage Loan that is the subject of
this Agreement, each Mortgage Loan subject to this Agreement being identified
on the Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage Loan documents, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Master Servicer, which shall be
equal to the Mortgage Interest Rate minus the applicable Servicing Fee.
Mortgage Loan Schedule: A schedule of the Mortgage Loans setting
forth information with respect to such Mortgage Loans (including any MERS
identification number (if available) with respect to each MERS Mortgage Loan
or MERS Eligible Mortgage Loan), attached hereto as Exhibit A.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Sale Proceeds: The proceeds from the sale of REO Property, net of
all expenses incurred by the Servicer in connection with such sale, including,
without limitation, legal fees and expenses, referral fees, brokerage
commissions, conveyance taxes and any other related expense.
Non-MERS Eligible Mortgage Loan: Any Mortgage Loan other than a MERS
Eligible Mortgage Loan.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Seller, but which must
be independent outside counsel with respect to any such opinion of counsel
concerning (i) the non-recordation of Mortgage Loans pursuant to Section 2.02
hereof and (ii) federal income tax matters.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued by
a Qualified Insurer, as required by this Agreement with respect to certain
Mortgage Loans.
Prepayment Interest Shortfall Amount: With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part during any
Prepayment Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Due Period, the amount of
interest (net the Servicing Fee for Principal Prepayments in full only) that
would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day immediately preceding such
Due Date, inclusive.
Prepayment Period: With respect to the first Remittance Date, the
period beginning on the Cut-off Date and ending on February 1, 2000. With
respect to each subsequent Remittance Date, the period commencing on the
second day of the month immediately preceding the month in which such
Remittance Date occurs and ending on the first day of the month in which such
Remittance Date occurs.
Prime Rate: The prime rate published from time to time, as published
as the average rate in The Wall Street Journal Northeast Edition.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan that is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon, which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Qualified Depository: Either of (i) a depository the accounts of
which are insured by the FDIC and the debt obligations of which are rated AA
(or its equivalent) or better by each Rating Agency or (ii) the corporate
trust department of any bank the debt obligations of which are rated at least
A-1 or its equivalent by each Rating Agency or (iii) Lehman Brothers Bank,
F.S.B.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by FNMA, FHLMC and GNMA.
Rating Agency: Each of S&P and DCR.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 3.12.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trustee through foreclosure or by deed in lieu of foreclosure, pursuant
to Section 3.12.
S&P: Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor in interest.
Seller: Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
or its successors in interest and assigns.
Servicer: Aurora Loan Services Inc. or its successor in interest or
assigns or any successor to the Servicer under this Agreement as herein
provided.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) taxes, assessments, water
rates, sewer rents and other charges which are or may become a lien upon the
Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage, (e) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (f) compliance with the obligations
pursuant to the provisions of the FNMA Guides.
Servicing Fee: An amount equal to one-twelfth the product of (a) a
rate per annum equal to 0.50% and (b) the outstanding principal balance of
such Mortgage Loan. The obligation of the Trustee to pay the Servicing Fee is
limited to, and the 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.
Servicing File: The items pertaining to a particular Mortgage Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of or
utilized in originating and/or servicing each Mortgage Loan, which are held in
trust for the Trustee by the Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Master Servicer or Seller upon request, as such list may from time to time be
amended.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received
by the Servicer for servicing the Mortgage Loans; (c) any late fees, penalties
or similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Servicer
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Servicer with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage
Loans.
Trust Agreement: The Trust Agreement dated as of January 1, 2000,
among the Trustee, the Master Servicer and the Depositor.
Trust Fund: The trust fund established by the Trust Agreement, the
assets of which consist of the Mortgage Loans and any related assets.
Trustee: First Union National Bank, a national banking association,
or any successor in interest, or if any successor trustee or co-trustee shall
be appointed as provided in the Trust Agreement, then such successor trustee
or such co-trustee, as the case may be.
VA: The Veterans Administration, an agency of the United States of
America, or any successor thereto including the Administrator of Veterans
Affairs.
VA Approved Lender: Those lenders which are approved by the VA to act
as a lender in connection with the origination of VA Loans.
VA Loan: A Mortgage Loan that, as of the Cut-off Date (or, in the
case of a Qualifying Substitute Mortgage Loan, as of the date of such
substitution), is the subject of a VA Loan Guaranty Agreement as evidenced by
a Loan Guaranty Certificate, or a Mortgage Loan which is a vendee loan sold by
the VA.
VA Loan Guaranty Agreement: The obligation of the United States to
pay a specific percentage of a Mortgage Loan (subject to a maximum amount)
upon default of the Mortgagor pursuant to the Servicemen's Readjustment Act,
as amended.
VA Loan Guaranty Certificate: The certificate evidencing a VA Loan
Guaranty Agreement.
VA Regulations: Regulations promulgated by the Veteran's
Administration pursuant to the Servicemen's Readjustment Act, as amended,
codified in 38 Code of Federal Regulations, and other VA issuances relating to
VA Loans, including related Handbooks, Circulars and Notices.
Any capitalized terms used and not defined in this Agreement shall
have the meanings ascribed to such terms in the Trust Agreement.
ARTICLE II.
SELLER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Servicing Files.
The Seller, by execution and delivery of this Agreement, does hereby
contract with the Servicer, subject to the terms of this Agreement, for the
servicing of the Mortgage Loans. On or before the Closing Date, the Seller
shall cause to be delivered the Servicing Files with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule to the Servicer. Each Servicing
File delivered to a Servicer shall be held in trust by such Servicer for the
benefit of the Trustee; provided, however, that the Servicer shall have no
liability for any Servicing Files (or portions thereof) not delivered by the
Seller. The Servicer's possession of any portion of the Mortgage Loan
documents shall be at the will of the Trustee for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the contents of the Servicing File shall be vested in the Trustee and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Servicer shall
immediately vest in the Trustee and shall be retained and maintained, in
trust, by the Servicer at the will of the Trustee in such custodial capacity
only. The portion of each Servicing File retained by the Servicer pursuant to
this Agreement shall be segregated from the other books and records of the
Servicer and shall be appropriately marked to clearly reflect the ownership of
the related Mortgage Loan by the Trustee. The Servicer shall release from its
custody the contents of any Servicing File retained by it only in accordance
with this Agreement.
Section 2.02 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable after
the Closing Date or the date on which a Qualifying Substitute Mortgage Loan is
delivered pursuant to Section 2.05 of the Trust Agreement, as applicable (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 or Assignment of Mortgage, as
applicable, 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) Subject to Section 3.01(a) hereof, an Assignment of Mortgage in
favor of the Trustee 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.
(c) Additionally, the Servicer shall prepare and execute, at the
direction of the Trustee, any note endorsements relating to any of the
Non-MERS Mortgage Loans.
(d) All rights arising out of the Mortgage Loans shall be vested in
the Trustee, subject to the Servicer's right to service and administer the
Mortgage Loans hereunder in accordance with the terms of this Agreement. All
funds received on or in connection with a Mortgage Loan, other than the
Servicing Fee and other compensation to which the Servicer is entitled as set
forth herein, including but not limited to in Section 5.01 below, shall be
received and held by the Servicer in trust for the benefit of the Trustee
pursuant to the terms of this Agreement.
ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Mortgage Loans from and after the Closing Date and shall have
full power and authority, acting alone, to do any and all things in connection
with such servicing and administration which the Servicer may deem necessary
or desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices, including taking all actions that a mortgagee is
permitted or required to take by the FHA or VA, with respect to any FHA Loans
or VA Loans, as the case may be. Except as set forth in this Agreement, the
Servicer shall service the Mortgage Loans in strict compliance with the
servicing provisions related to the FNMA MBS Program (Special Servicing
Option) of the FNMA Guides, which include, but are not limited to, provisions
regarding the liquidation of Mortgage Loans, the collection of Mortgage Loan
payments, the payment of taxes, insurance and other charges, the maintenance
of hazard insurance, the maintenance of Mortgage Impairment Insurance
Policies, the maintenance of Fidelity Bond and Errors and Omissions Insurance,
inspections, the restoration of Mortgaged Property, the maintenance of PMI
Policies, insurance claims, the title, management and disposition of REO
Property, permitted withdrawals with respect to REO Property, REO reports,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Loan
documents, annual statements, and examination of records and facilities. In
the event of any conflict, inconsistency or discrepancy between any of the
servicing provisions of this Agreement and any of the servicing provisions of
the FNMA Guides, the provisions of this Agreement shall control and be binding
upon the Seller, the Master Servicer and the Servicer.
The Seller and the Servicer additionally agree as follows:
(a) The Servicer shall (A) record or cause to be recorded the
Mortgage or the Assignment of Mortgage, as applicable, 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 Mortgages and Assignments of Mortgage to ensure they
have been recorded. The Servicer shall be entitled to be paid by the Seller
the fees set forth on Schedule 1 hereto for the preparation and recordation of
the Mortgages and Assignments of Mortgage. 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.
(b) The Servicer shall, in accordance with the relevant provisions of
the Cranston-Gonzales National Affordable Housing Act of 1990, as the same may
be amended from time to time, and the regulations provided in accordance with
the Real Estate Settlement Procedures Act, provide notice to the Mortgagor of
each Mortgage of the transfer of the servicing thereto to the Servicer.
(c) The Servicer shall be responsible for the preparation of and
costs associated with notifications to Mortgagors of the assumption of
servicing by the Servicer.
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 Mortgage Loan 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 Trustee, 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 Trustee 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 Trustee, 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 (unless the Servicer determines, in its own discretion,
that there exists a situation of extreme hardship to the Mortgagor), 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.
In servicing and administering any FHA Loans or VA Loans, the
Servicer shall comply strictly with the National Housing Act and the FHA
Regulations, the Servicemen's Readjustment Act, the VA Regulations and
administrative guidelines issued thereunder or pursuant thereto, and, to the
extent permitted hereunder, promptly discharge all of the obligations of the
mortgagee thereunder and under each Mortgage including the payment of any
fees, premiums and charges and the timely giving of notices.
In servicing and administering the Mortgage Loans, the Servicer shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, the FNMA Guides, the FHA Regulations and the VA
Regulations, and the Seller's reliance on the Servicer.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the Closing Date until the date each Mortgage Loan
ceases to be subject to this Agreement, the Servicer shall proceed diligently
to collect all payments due under each of the Mortgage Loans when the same
shall become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and each related Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 3.03 Establishment of and Deposits to Custodial Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Custodial Accounts, in the form of time deposit or demand accounts, titled as
directed by the Trustee. The Custodial Account shall be established with a
Qualified Depository. Any funds deposited in the Custodial Account may be
invested in Eligible Investments subject to the provisions of Section 3.11
hereof. Funds deposited in the Custodial Account may be drawn on by the
Servicer in accordance with Section 3.04. The creation of any Custodial
Account shall be evidenced by a letter agreement in the form of Exhibit B. A
copy of such certification or letter agreement shall be furnished to the
Master Servicer and, upon request, to any subsequent owner of the Mortgage
Loans.
The Servicer shall deposit in the Custodial Account on a daily basis,
and retain therein, the following collections received by the Servicer and
payments made by the Servicer after the Closing Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds;
(v) all Condemnation Proceeds that are not applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor;
(vi) any Prepayment Interest Shortfall Amount;
(vii) any amounts required to be deposited by the Servicer in
connection with the deductible clause in any blanket hazard insurance policy;
(viii) any amounts received with respect to or related to any
REO Property or REO Disposition Proceeds; and
(ix) any other amount required hereunder to be deposited in the
Custodial Account.
Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 3.04. Additionally, any other benefit
derived from the Custodial Account associated with the receipt, disbursement
and accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04 Permitted Withdrawals From Custodial Account.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Master Servicer in the amounts and
in the manner provided for in Section 4.01;
(ii) in the event the Servicer has elected not to retain the
Servicing Fee out of any Mortgagor payments on account of interest or other
recovery of interest with respect to a particular Mortgage Loan (including
late collections of interest on such Mortgage Loan, or interest portions of
Insurance Proceeds or Liquidation Proceeds) prior to the deposit of such
Mortgagor payment or recovery in the Custodial Account, to pay to itself the
related Servicing Fee from all such Mortgagor payments on account of interest
or other such recovery for interest with respect to that Mortgage Loan;
(iii) to pay itself investment earnings on funds deposited in
the Custodial Account;
(iv) to clear and terminate the Custodial Account upon the
termination of this Agreement;
(v) to transfer funds to another Qualified Depository in
accordance with Section 3.11 hereof;
(vi) to invest funds in certain Eligible Investments in
accordance with Section 3.11 hereof;
(vii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 4.03, 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; and
(viii) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid 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 Trust Fund.
Section 3.05 Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled as directed by the Trustee. The Escrow Accounts shall be
established with a Qualified Depository in a manner that shall provide maximum
available insurance thereunder. Funds deposited in the Escrow Account may be
drawn on by the Servicer in accordance with Section 3.06. The creation of any
Escrow Account shall be evidenced by a letter agreement in the form of Exhibit
C. A copy of such certification or letter agreement shall be furnished to the
Master Servicer and, upon request, to any subsequent owner of the Mortgage
Loans.
The Servicer shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall retain any interest paid on funds deposited
in the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. Additionally, any
other benefit derived from the Escrow Account associated with the receipt,
disbursement and accumulation of principal, interest, taxes, hazard insurance,
mortgage insurance, etc. shall accrue to the Servicer. To the extent required
by law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 3.06 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, sewer rents, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage;
(ii) to refund to any Mortgagor any funds found to be in excess
of the amounts required under the terms of the related Mortgage Loan;
(iii) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the related Mortgage and Mortgage Note;
(iv) for application to restoration or repair of the Mortgaged
Property in accordance with the FNMA Guides;
(v) for transfer to the Custodial Account of fire and hazard
insurance proceeds and Escrow Payments with respect to any FHA Loan or VA
Loan, where the FHA or the VA, respectively, has directed application of funds
as a credit against the proceeds of the FHA Insurance Contract or VA Loan
Guaranty Agreement;
(vi) to pay to the Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account; and
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 3.07 Maintenance of FHA Mortgage Insurance and VA Guaranty.
With respect to any FHA Loans and VA Loans, the Servicer shall
maintain and keep the FHA Mortgage Insurance and the VA Guaranty,
respectively, in full force and effect throughout the term of this Agreement
and discharge its obligations arising out of FHA Mortgage Insurance and the VA
Guaranty Certificate. The Servicer hereby agrees that it shall be liable to
the Trustee for any loss, liability or expense incurred by the Trust Fund by
reason of any FHA Mortgage Insurance or VA Guaranty being voided, reduced,
released or adversely affected by reason of the negligence or willful
misconduct of the Servicer. The Servicer will service and administer the
Mortgage Loans in accordance with the obligations of mortgagees under the Act
and the applicable regulations thereunder and under the Servicemen's
Readjustment Act and VA Regulations and will discharge all obligations of the
mortgagee under each Mortgage Loan including, with respect to FHA Loans and VA
Loans, paying all FHA and VA insurance premiums, fees or charges, as required,
and, subject to the right to assign the Mortgage Loan to the FHA or VA, as the
case may be, will take all action reasonably necessary to preserve the lien of
such Mortgage, including the defense of actions to challenge or foreclose such
lien.
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall keep in force during the term of this Agreement a
Fidelity Bond and Errors and Omissions Insurance. Such Fidelity Bond and
Errors and Omissions Insurance 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.
Section 3.09 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Servicer
shall adjust the Mortgage Interest Rate on the related interest rate
adjustment date and shall adjust the Monthly Payment on the related mortgage
payment adjustment date, if applicable, in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and Monthly Payment adjustments. The Servicer shall
promptly, upon written request therefor, deliver to the Master Servicer such
notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by the Servicer or the receipt of notice from the Master Servicer
that the Servicer has failed to adjust a Mortgage Interest Rate or Monthly
Payment in accordance with the terms of the related Mortgage Note, the
Servicer shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused thereby.
Section 3.10 Completion and Recordation of Assignments of Mortgage
and FHA and VA Change Notices.
As soon as practicable after the Closing Date or the date on which a
Qualifying Substitute Mortgage Loan is delivered pursuant to Section 2.05 of
the Trust Agreement, as applicable (but in no event more than 90 days
thereafter except to the extent delays are caused by the applicable government
agency), the Servicer shall cause the endorsements on the Mortgage Note (if
applicable), the Assignments of Mortgage (subject to Section 3.01(a)), the
assignment of security agreement and the HUD form 92080 Mortgage Record Change
with respect to all FHA Loans to be completed in the name of the Trustee (or
MERS, as applicable), and shall give notice to the VA of a transfer of
insurance credits, if applicable, with respect to VA Loans on the form
prescribed by the VA.
Section 3.11 Protection of Accounts.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. Such transfer shall be
made only upon obtaining the consent of the Master Servicer, which consent
shall not be withheld unreasonably.
The Servicer shall bear any expenses, losses or damages sustained by
the Master Servicer or the Trustee if the Custodial Account and/or the Escrow
Account are not demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account
may at the option of the Servicer be invested in Eligible Investments;
provided that in the event that amounts on deposit in the Custodial Account or
the Escrow Account exceed the amount fully insured by the FDIC (the "Insured
Amount") the Servicer shall be obligated to invest the excess amount over the
Insured Amount in Eligible Investments on the same Business Day as such excess
amount becomes present in the Custodial Account or the Escrow Account. Any
such Eligible Investment shall mature no later than the Business Day
immediately preceding the related Remittance Date, provided, however, that if
such Eligible Investment is an obligation of a Qualified Depository (other
than the Servicer) that maintains the Custodial Account or the Escrow Account,
then such Eligible Investment may mature on the related Remittance Date. Any
such Eligible Investment shall be made in the name of the Servicer in trust
for the benefit of the Trustee. All income on or gain realized from any such
Eligible Investment shall be for the benefit of the Servicer and may be
withdrawn at any time by the Servicer. Any losses incurred in respect of any
such investment shall be deposited in the Custodial Account or the Escrow
Account, by the Servicer out of its own funds immediately as realized.
Section 3.12 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Trustee (or MERS, as applicable), or in the
event the Trustee is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such
Person or Persons as shall be consistent with an Opinion of Counsel obtained
by the Servicer from any attorney duly licensed to practice law in the state
where the REO Property is located. The Person or Persons holding such title
other than the Trustee shall acknowledge in writing that such title is being
held as nominee for the Trustee.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt
to sell the same (and may temporarily rent the same for a period not greater
than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Trustee.
The Servicer shall use its Best Efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless (a)
a REMIC election has not been made with respect to the arrangement under which
the Mortgage Loans and the REO Property are held, and (b) the Servicer
determines, and gives an appropriate notice to the Master Servicer to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the Servicer
shall report monthly to the Master Servicer as to the progress being made in
selling such REO Property and (ii) if, with the written consent of the
Trustee, a purchase money mortgage is taken in connection with such sale, such
purchase money mortgage shall name the Servicer as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate participation agreement among the Servicer and Trustee
shall be entered into with respect to such purchase money mortgage.
Notwithstanding anything herein to the contrary, the Servicer shall not be
required to provide financing for the sale of any REO Property.
The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
Subject to the approval of the Master Servicer as described in this
paragraph, the disposition of REO Property shall be carried out by the
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interests of the Trust Fund. Prior to acceptance by
the Servicer of an offer to sell any REO Property, the Servicer shall notify
the Master Servicer and the Trustee of such offer in writing which
notification shall set forth all material terms of said offer (each a "Notice
of Sale"). The Master Servicer shall be deemed to have approved the sale of
any REO Property unless the Master Servicer notifies the Servicer in writing,
within 2 Business Days after its receipt of the related Notice of Sale, that
it disapproves of the related sale. With respect to any REO Property, upon a
REO Disposition, the Servicer shall be entitled to retain from REO Disposition
Proceeds a disposition fee equal to the lesser of (A) 1.5% of the Net Sale
Proceeds or (B) $1,250; provided, however, that (1) in the event that the REO
Disposition Proceeds exceed $25,000, such disposition fee shall not be less
than $500 and (2) in the event that the REO Disposition Proceeds are $25,000
or less, such disposition fee shall be equal to $250. The proceeds of sale of
the REO Property shall be promptly deposited in the Custodial Account. After
the expenses of such disposition shall have been paid, the Servicer shall
reimburse itself pursuant to Section 3.04 hereof for any Servicing Advances it
incurred with respect to such REO Property.
The Servicer shall withdraw from the Custodial Account funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
the FNMA Guides. The Servicer shall make monthly distributions on each
Remittance Date to the Master Servicer of the net cash flow from the REO
Property (which shall equal the revenues from such REO Property net of the
expenses described in this Section 3.12 and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
Section 3.13 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Master Servicer on or before the Remittance Date
each month a statement with respect to any REO Property covering the operation
of such REO Property for the previous month and the Servicer's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as the Master Servicer shall
reasonably request.
Section 3.14 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 3.15 or Section 9.01 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.
Section 3.15 Transfer of Distressed Mortgage Loans. [[Reserved]]
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances.
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 Monthly Advances, if any,
which the Servicer is obligated to make pursuant to Section 4.03, 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 3.03(vi), 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.
With respect to any remittance received by the Master Servicer after
the Business Day on which such payment was due, the Servicer shall pay to the
Master Servicer interest on any such late payment at an annual rate equal to
the Prime Rate, adjusted as of the date of each change, plus two percentage
points, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be deposited in the Custodial Account by
the Servicer on the date such late payment is made and shall cover the period
commencing with the day following such Business Day and ending with the
Business Day on which such payment is made, both inclusive. Such interest
shall be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Servicer of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Servicer.
All remittances required to be made to the Master Servicer shall be
made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA #: 091-000-019
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: # 13633800, ARC 2000-BC1
Section 4.02 Statements to Master Servicer.
Not later than the thirteenth calendar day of each month (or if such
thirteenth calendar day is not a Business Day, the next succeeding Business
Day), the Servicer shall furnish to the Master Servicer (a) a monthly
remittance advice containing such information in the form of FNMA form 2010 or
such other form as shall be required by the FNMA Guides or by the Master
Servicer as to the accompanying remittance and the period ending on the
preceding Determination Date and (b) all such information required pursuant to
clause (a) above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer. Such remittance advice shall also include
on a cumulative and aggregate basis (i) the amount of claims filed, (ii) the
amount of any claim payments made and (ii) the amount of claims denied with
respect to those Mortgage Loans covered by the loan-level primary mortgage
insurance policies provided by PMI Mortgage Insurance Co. or any other
provider of primary mortgage insurance purchased by the Trust (collectively,
the "PMI Policies").
In addition, not more than 60 days after the end of each calendar
year, commencing December 31, 2000, the Servicer shall furnish to each Person
who was an owner of the Mortgage Loans at any time during such calendar year
as required by applicable law or if not required by applicable law, at the
request of such owner as to the aggregate of remittances for the applicable
portion of such year.
Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
Beginning with calendar year 2001, the Servicer shall prepare and
file any and all tax returns, information statements or other filings for the
portion of the tax year 2000 and the portion of subsequent tax years for which
the Servicer has serviced some or all of the Mortgage Loans hereunder as such
returns, information statements or other filings are required to be delivered
to any governmental taxing authority or to the Master Servicer pursuant to any
applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Servicer shall provide the Master
Servicer with such information concerning the Mortgage Loans as is necessary
for the Master Servicer to prepare the Trust Fund's federal income tax return
as the Master Servicer may reasonably request from time to time.
Section 4.03 Monthly Advances by Servicer.
The Servicer shall make Monthly Advances through the Remittance Date
immediately preceding the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the related Mortgage Loans.
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall retain the relevant Servicing Fee for each
Mortgage Loan remaining subject to this Agreement during any month and all
Ancillary Income. Such Servicing Fee shall be payable monthly. The Servicing
Fees shall be payable only at the time of and with respect to those Mortgage
Loans for which payment is in fact made of the entire amount of the Monthly
Payment or as otherwise provided in Section 3.04. The obligation of the
Trustee to pay the Servicing Fees is limited as provided in Section 3.04. The
aggregate of the Servicing Fees payable to the Servicer for any month with
respect to the Mortgage Loans shall be reduced by any Prepayment Interest
Shortfall Amount with respect to such month.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement thereof except as specifically provided for herein.
Section 5.02 Annual Audit Report.
On or before April 30 of each year, beginning with April 30, 2001,
Servicer shall, at its own expense, 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
to the Seller and Master Servicer (i) year-end audited (if available)
financial statements of the Servicer and (ii) a statement 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.
Section 5.03 Annual Officer's Certificate.
On or before April 30 of each year, beginning with April 30, 2001,
the Servicer, at its own expense, will deliver to the Seller 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.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Seller as of the Closing Date:
(a) Due Organization and Authority. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the state
of Delaware and has all licenses, necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in each state
where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted
by the Servicer, and in any event the Servicer is in compliance with the laws
of any such state to the extent necessary to ensure the enforceability of the
terms of this Agreement; the Servicer has the full power and authority to
execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Servicer and the consummation of the transactions contemplated hereby have
been duly and validly authorized; this Agreement evidences the valid, binding
and enforceable obligation of the Servicer and all requisite action has been
taken by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer
or the transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, will conflict with or result
in a breach of any of the terms, conditions or provisions of the Servicer's
organizational documents or any legal restriction or any agreement or
instrument to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Servicer or its property is subject, or impair the ability
of the Servicer to service the Mortgage Loans, or impair the value of the
Mortgage Loans;
(d) Ability to Perform. The Servicer does not believe, nor does
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding
or investigation pending or threatened against the Servicer which, either in
any one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or assets
of the Servicer, or in any material impairment of the right or ability of the
Servicer to carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or which would draw into
question the validity of this Agreement or of any action taken or to be taken
in connection with the obligations of the Servicer contemplated herein, or
which would be likely to impair materially the ability of the Servicer to
perform under the terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Servicer of or compliance by the
Servicer with this Agreement, or if required, such consent, approval,
authorization or order will be obtained prior to the Closing Date;
(g) Ability to Service. The Servicer is an FHA Approved
Mortgagee, a VA Approved Lender and an approved seller/servicer of
conventional residential mortgage loans for FNMA, FHLMC or GNMA, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The
Servicer is in good standing to service mortgage loans for the FHA and the VA
and either FNMA, FHLMC or GNMA. Aurora Loan Services Inc. is a member in good
standing of the MERS system;
(h) No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of fact or omits to state a fact necessary to
make the statements contained therein not materially misleading; and
(i) No Commissions to Third Parties. The Servicer has not dealt
with any broker or agent or anyone else who might be entitled to a fee or
commission in connection with this transaction other than the Seller.
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.
It is understood and agreed that the representations and warranties
set forth in Section 6.01 shall survive the engagement of the Servicer to
perform the servicing responsibilities as of the Closing Date hereunder and
the delivery of the Servicing Files to the Servicer and shall inure to the
benefit of the Seller and the Trustee. Upon discovery by either the Servicer,
the Master Servicer or the Seller of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
ability of the Servicer to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the value of the
Mortgage Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property or the interest of the Seller or the
Trustee, the party discovering such breach shall give prompt written notice to
the other.
Within 60 days of the earlier of either discovery by or notice to the
Servicer of any breach of a representation or warranty set forth in Section
6.01 which materially and adversely affects the ability of the Servicer to
perform its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage Loans, the
Mortgaged Property or the priority of the security interest on such Mortgaged
Property, the Servicer shall use its Best Efforts promptly to cure such breach
in all material respects and, if such breach cannot be cured, the Servicer
shall, at the Trustee's option, assign the Servicer's rights and obligations
under this Agreement (or respecting the affected Mortgage Loans) to a
successor Servicer selected by the Trustee. Such assignment shall be made in
accordance with Sections 9.01 and 9.02.
In addition, the Servicer shall indemnify the Seller and the Master
Servicer and hold each of them harmless against any Costs resulting from any
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the Servicer representations and warranties contained in
this Agreement. It is understood and agreed that the remedies set forth in
this Section 6.02 constitute the sole remedies of the Master Servicer and the
Trustee respecting a breach of the foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising out
of the breach of any representations and warranties made in Section 6.01 shall
accrue upon (i) discovery of such breach by the Servicer or notice thereof by
the Seller or Master Servicer to the Servicer, (ii) failure by the Servicer to
cure such breach within the applicable cure period, and (iii) demand upon the
Servicer by the Seller or the Master Servicer for compliance with this
Agreement.
Section 6.03 dditional Indemnification by the Servicer; Third Party
Claims.
The Servicer shall indemnify the Seller, the Master Servicer and the
Trust Fund and hold them harmless against any and all Costs that the
indemnified party may sustain in any way related to (i) the failure of the
Servicer to perform its duties and service the Mortgage Loans in material
compliance with the terms of this Agreement or (ii) the failure of the
Servicer to cause any event to occur which requires its "Best Efforts" under
this Agreement. The Servicer shall immediately notify the Seller, the Master
Servicer, the Trustee, or any other relevant party if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees,
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or any indemnified party in respect of such claim and
follow any written instructions received from such indemnified party in
connection with such claim. Each indemnified party, as applicable, promptly
shall reimburse the Servicer for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way related to the
Servicer's indemnification pursuant to Section 6.02, or the failure of the
Servicer to service and administer the Mortgage Loans in material compliance
with the terms of this Agreement. In the event a dispute arises between an
indemnified party and the Servicer with respect to any of the rights and
obligations of the parties pursuant to this Agreement, and such dispute is
adjudicated in a court of law, by an arbitration panel or any other judicial
process, then the losing party shall indemnify and reimburse the winning party
for all attorney's fees and other costs and expenses related to the
adjudication of said dispute.
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, or any Person succeeding to the business
of the Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution (i)
having a net worth of not less than $1,500,000, and (ii) which is a FNMA-,
FHLMC-, and GNMA-approved servicer in good standing and an FHA approved
Mortgagee and a VA Approved Lender.
Section 7.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Seller, the Master
Servicer or the Trustee 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
Servicer or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Servicer and any director,
officer, employee or agent of the 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 Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Servicer may, with the consent of the Master
Servicer, undertake any such action which it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto.
In such event, the Servicer shall be entitled to reimbursement from the Trust
Fund for the reasonable legal expenses and costs of such action.
Section 7.03 Limitation on Resignation and Assignment by the
Servicer.
The Seller has entered into this Agreement with the Servicer in
reliance upon the independent status of the Servicer, and the representations
as to the adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall neither assign its rights
under this Agreement or the servicing hereunder nor delegate its duties
hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets without, in each case, the prior
written consent of the Seller and the Master Servicer, which consent, in the
case of an assignment of rights or delegation of duties, shall be granted or
withheld in the discretion of the Seller and the Master Servicer, and which
consent, in the case of a sale or disposition of all or substantially all of
the property or assets of the Servicer, shall not be unreasonably withheld;
provided, that in each case, there must be delivered to the Master Servicer
and the Trustee a letter from each Rating Agency to the effect that such
transfer of servicing or sale or disposition of assets will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of
the Certificates.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Master Servicer
or upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer and the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Master Servicer and the Trustee. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided
in Section 9.01.
Without in any way limiting the generality of this Section 7.03, in
the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of
its property or assets, without the prior written consent of the Seller and
the Master Servicer, then the Seller or the Master Servicer shall have the
right to terminate this Agreement upon notice given as set forth in Section
8.01, without any payment of any penalty or damages and without any liability
whatsoever to the Servicer or any third party.
ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.
This Agreement shall be terminable at the option of the Seller or the
Master Servicer if any of the following events of default exist on the part of
the Servicer:
(i) any failure by the Servicer to remit to the Master Servicer
any payment required to be made under the terms of this Agreement which
continues unremedied for a period of two Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Master Servicer; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period
of 30 days; or
(iii) failure by the Servicer to maintain its license to do
business or service residential mortgage loans in any jurisdiction, if
required by such jurisdiction, where the Mortgaged Properties are located; or
(iv) 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, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(vi) the 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, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations or cease its normal business operations for three Business
Days; or
(vii) the Servicer ceases to meet the qualifications of a FNMA,
FHLMC or GNMA lender/servicer or ceases to be an FHA Approved Mortgagee or
ceases to be a VA Approved Lender; or
(viii) the Servicer attempts to assign the servicing of the
Mortgage Loans or its right to servicing compensation hereunder or the
Servicer attempts to sell or otherwise dispose of all or substantially all of
its property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof, in each case without complying fully with the provisions of Section
7.03.
In each and every such case, so long as an event of default shall not
have been remedied, in addition to whatever rights the Seller or the Master
Servicer may have at law or equity to damages, including injunctive relief and
specific performance, the Seller or the Master Servicer, by notice in writing
to the Servicer, may, and shall, in the case of any default described in
clause (i) above, terminate all the rights and obligations of the Servicer
under this Agreement and in and to the servicing contract established hereby
and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in a successor
Servicer appointed by the Seller and the Master Servicer. Upon written request
from the Seller, the Servicer shall prepare, execute and deliver to the
successor entity designated by the Seller any and all documents and other
instruments, place in such successor's possession all Servicing Files, and do
or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to the transfer and endorsement or assignment of the Mortgage Loans and
related documents, at the Servicer's sole expense. The Servicer shall
cooperate with the Seller and the Master Servicer and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
By a written notice, the Seller and the Master Servicer may waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 8.02 Termination Without Cause.
(a) This Agreement shall terminate upon: (i) the later of (x)
the distribution of the final payment or liquidation proceeds on the last
Mortgage Loan to the Master Servicer (or advances by the Servicer for the
same), and (y) the disposition of all REO Property acquired upon foreclosure
of the last Mortgage Loan and the remittance of all funds due hereunder and
(ii) mutual consent of the Servicer, Seller and the Master Servicer in
writing.
(b) At the sole discretion of the Directing Holder, the
Directing Holder may terminate the rights and obligations of the Servicer
under this Agreement. Any such termination shall be with 30 days' prior
notice, in writing and delivered to the Trustee, the Master Servicer and the
Servicer by registered mail to the addresses set forth in Section 9.03 of this
Agreement (in the case of the Servicer or the Master Servicer) or in Section
11.07 of the Trust Agreement (in the case of the Trustee). If the Directing
Holder is not Lehman Brothers Inc. (or an affiliate thereof), the Directing
Holder will pay the Servicer a termination fee equal to 1.50% of the scheduled
principal balance of each outstanding Mortgage Loan in connection with a
termination under this Section 8.02(b). The Servicer shall comply with the
termination procedures set forth in Sections 7.03, 8.01 and 9.01 hereof. The
Master Servicer or the Trustee shall have no right to terminate the Servicer
pursuant to this Section 8.02(b).
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.
Within 90 days of the termination of the Servicer's responsibilities
and duties under this Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or
8.02(a)(ii), the Master Servicer shall (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations under this
Agreement (provided that the Master Servicer shall immediately assume the
Servicer's obligation to make Monthly Advances pursuant to Section 4.03
effective with such Servicer's termination), or (ii) appoint a successor
having the characteristics set forth in clauses (i) and (ii) of Section 7.01
and which shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement simultaneously
with the termination of the Servicer's responsibilities, duties and
liabilities under this Agreement; or (b) pursuant to Section 8.02(b), the
Directing Holder shall appoint a successor having the characteristics set
forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement simultaneously with the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement. Any
successor to the Servicer shall be subject to the approval of the Master
Servicer, the Trustee and each Rating Agency, shall be a member in good
standing of the MERS system (if any of the Mortgage Loans are MERS Eligible
Mortgage Loans, unless such Mortgage Loans are withdrawn from MERS and
Assignments of Mortgage are recorded in favor of the Trustee at the expense of
the successor Servicer) and shall be an FHA Approved Mortgagee and a VA
Approved Lender. Each Rating Agency must deliver to the Trustee a letter 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.
In addition, with respect to any FHA Loans serviced hereunder, the Servicer
shall provide notice of such change in servicers to HUD on HUD form 92080 or
such other form as prescribed by HUD, at least 10 days after such transfer of
servicing. In connection with such appointment and assumption, the Master
Servicer or the Seller, as applicable, 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 the Servicer under this Agreement. In the event
that the Servicer's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the aforementioned sections, the
Servicer shall discharge such duties and responsibilities during the period
from the date it acquires knowledge of such termination until the effective
date thereof with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Servicer pursuant to the
aforementioned sections shall not become effective until a successor shall be
appointed pursuant to this Section 9.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to Sections 6.01
and the remedies available to the Seller under Section 6.02 and 6.03, it being
understood and agreed that the provisions of such Sections 6.01, 6.02 and 6.03
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than 30
days of the appointment of a successor entity, the Servicer shall prepare,
execute and deliver to the successor entity any and all documents and other
instruments, place in such successor's possession all Servicing Files, and do
or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to the transfer and endorsement of the Mortgage Notes and related documents,
and the preparation and recordation of Assignments of Mortgage. The Servicer
shall cooperate with the Trustee, the Master Servicer or the Seller, as
applicable, and such successor in effecting the termination of the Servicer's
responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Custodial Account or
Escrow Account or thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Trustee, the Servicer, the Master Servicer and the Seller
an instrument (i) accepting such appointment, wherein the successor shall make
the representations and warranties set forth in Section 6.01 (including a
representation that the successor Servicer is a member of MERS, unless none of
the Mortgage Loans are MERS Mortgage Loans or MERS Eligible Mortgage Loans or
any such Mortgage Loans have been withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trustee) and (ii) an assumption of the
due and punctual performance and observance of each covenant and condition to
be performed and observed by the Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that the Master
Servicer or the Trustee may have against the Servicer arising out of the
Servicer's actions or failure to act prior to any such termination or
resignation. In addition, in the event any successor Servicer is appointed
pursuant to Section 8.02(b) of this Agreement, such successor Servicer must
satisfy the conditions relating to the transfer of servicing set forth in
Section 11.14 of the Trust Agreement.
The Servicer shall deliver promptly to the successor Servicer the
funds in the Custodial Account and Escrow Account and all Mortgage Loan
documents and related documents and statements held by it hereunder and the
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more
fully and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify the Trustee, the Seller and Master Servicer of such appointment
in accordance with the procedures set forth in Section 9.03.
Section 9.02 Costs.
The Seller shall pay any legal fees and expenses of its attorneys.
Costs and expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be paid
by the Seller. Subject to Sections 2.02 and 3.01(a), the Depositor shall pay
the costs associated with the preparation, delivery and recording of
Assignments of Mortgages.
Section 9.03 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if sent by facsimile or mailed by
overnight courier, addressed as follows (or such other address as may
hereafter be furnished to the other party by like notice):
(i) if to the Seller:
Lehman Capital, A Division of
Lehman Brothers Holdings Inc.
Three World Financial Center
New York, New York 10285
Attention: Manager, Contract Finance
Telephone No.: (212) 526-5837
Telecopier No.: (212) 526-6154
(ii) if to the Master Servicer:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Telephone No.: (410) 884-2000
Telecopier No.: (410) 884-2360
Attention: Master Servicing, ARC 2000-BC1
(iii) if to the Servicer:
Aurora Loan Services Inc.
2530 South Parker Road
Aurora, Colorado 80014
Attention: Rick Skogg
Telephone No.: (303) 745-3661
Telecopier No.: (303) 338-2289
and
Aurora Loan Services Inc.
601 Fifth Avenue
P.O. Box 1706
Scottsbluff, Nebraska 69361
Attention: Leo C. Trautman, Jr.
Telephone No.: (308) 635-3500
Telecopier No.: (308) 632-4287
Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee.
Section 9.04 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any provision hereof. If the invalidity of any part, provision, representation
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
Section 9.05 No Personal Solicitation.
From and after the Closing Date, the Servicer hereby agrees that it
will not take any action or permit or cause any action to be taken by any of
its agents or affiliates, or by any independent contractors on the Servicer's
behalf, to personally, by telephone or mail, solicit the borrower or obligor
under any Mortgage Loan (on a targeted basis) for any purposes of prepayment,
refinancing or modification of the related Mortgage Loan, provided, however,
that this limitation shall not prohibit Servicer from soliciting such
Mortgagor for purposes of prepayment, refinance or modification of any loan
owned or serviced by Servicer other than a Mortgage Loan. It is understood and
agreed that, among other marketing activities, promotions undertaken by
Servicer which are directed of the general public at large or which are
directed generally to a segment of the then existing customers of Servicer or
any of its direct or indirect subsidiaries (including, without limitation, the
mailing of promotional materials to Servicer's deposit customers by inserting
such materials into customer account statements, mass mailings based on
commercially acquired mailing lists and newspaper, radio and television
advertisements) shall not constitute solicitation under this section. In the
event the Servicer does refinance any Mortgage Loan as a result of a violation
of the requirements set forth in this Section 9.05, Servicer hereby agrees to
pay to the Trust Fund an amount equal to the difference, if any, between the
amount that the Trust Fund would have received if it had sold the Mortgage
Loan to a third party, and the proceeds received by the Servicer as result of
such refinancing.
Section 9.06 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 9.07 Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Seller in the State of New York and
shall be deemed to have been made in the State of New York. THIS AGREEMENT
SHALL BE GOVERNED BY, AND 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 THE LAWS OF THE STATE OF NEW YORK,
NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
Section 9.08 Further Agreements.
The Seller and the Servicer each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 9.09 Intention of the Parties.
It is the intention of the parties that the Seller is conveying, and
the Servicer is receiving only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby acknowledge that the Trust Fund remains the
sole and absolute owner of the Mortgage Loans and all rights (other than the
Servicing Rights) related thereto.
Section 9.10 Successors and Assigns; Assignment of Servicing
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, the Seller, the Trustee and the Master Servicer
and their respective successors and assigns. This Agreement shall not be
assigned, pledged or hypothecated by the Servicer to a third party except in
accordance with Section 7.03.
Section 9.11 Assignment by Lehman Capital.
The Seller shall have the right, upon notice to but without the
consent of the Servicer, to assign, in whole or in part, its interest under
this Agreement to the Depositor, which in turn shall assign such rights to the
Trustee, and the Trustee then shall succeed to all rights of the Seller under
this Agreement. All references to the Seller in this Agreement shall be deemed
to include its assignee or designee and any subsequent assignee or designee,
specifically including the Trustee.
Section 9.12 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent of
such parties as set forth herein, that the Master Servicer and the Directing
Holder receive the benefit of the provisions of this Agreement as intended
third party beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master Servicer and the
Directing Holder as if they were parties to this Agreement, and the Master
Servicer and the Directing Holder shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to this
Agreement. The Servicer shall only take direction from the Master Servicer (if
direction by the Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement. Notwithstanding the foregoing, all
rights and obligations of the Master Servicer hereunder (other than the right
to indemnification) shall terminate upon termination of the Trust Agreement
and of the Trust Fund pursuant to Article VII of the Trust Agreement.
Section 9.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced.
Section 9.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 9.15 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 9.16 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
<PAGE>
IN WITNESS WHEREOF, the Servicer and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
LEHMAN CAPITAL, A DIVISION OF LEHMAN
HOLDINGS INC., as Seller
By: /s/ Stanley Labanowski
--------------------------------
Name: Stanley Labanowski
Title: Vice President
AURORA LOAN SERVICES INC.,
as Servicer
By: /s/ Jeffrey Ross
---------------------------------
Name: Jeffrey Ross
Title: Senior Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
B-1
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 20__
To:
---------------------------
---------------------------
---------------------------
(the "Depository")
As Servicer under the Servicing Agreement, dated as of January 1,
2000 (the "Agreement"), we hereby authorize and request you to establish an
account, as a Custodial Account pursuant to Section 3.03 of the Agreement, to
be designated as "Aurora Loan Services Inc., in trust for the Master Servicer
for SASCO 2000-BC1." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
AURORA LOAN SERVICES INC.
By:_________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
Depository
By:_________________________
Name:
Title:
Date:
<PAGE>
C-1
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_______ __, 20__
To:
---------------------------
---------------------------
---------------------------
(the "Depository")
As Servicer under the Servicing Agreement, dated as of January 1,
2000 (the "Agreement"), we hereby authorize and request you to establish an
account, as an Escrow Account pursuant to Section 3.05 of the Agreement, to be
designated as "Aurora Loan Services Inc., in trust for the Master Servicer for
SASCO 2000-BC1." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
AURORA LOAN SERVICES INC.
By:___________________________________
Name:
Title:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above.
Depository
By:_______________________
Name:
Title:
Date:
Execution
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between LEHMAN CAPITAL, A
DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation ("Lehman
Capital"), and OPTION ONE MORTGAGE CORPORATION, a California 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") to Structured
Asset Securities Corporation ("SASCO"), which in turn has conveyed the
Serviced Mortgage Loans to First Union National Bank, a national banking
association, as trustee (the "Trustee") under a trust agreement dated as of
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer ("Norwest," and, together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Lehman Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Lehman Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder and the Master Servicer to terminate the rights
and obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as
of January 1, 2000, Lehman Brothers Bank, FSB ("Bank") has assigned all of its
right, title and interest under that Seller's Warranties and Servicing
Agreement, dated as of September 1, 1999, between Bank and Servicer (the
"9/1/99 SWSA") to Lehman Capital.
WHEREAS, Lehman Capital and the Servicer agree that the provisions of
the Seller's Warranties and Servicing Agreement, dated June 23, 1999
(Conventional Residential Adjustable and Fixed Rate Mortgage Loans), Group No.
1999 LB/00I (the "6/23/99 SWSA") shall apply to the Serviced Mortgage Loans
only to the extent provided by this Reconstituted Servicing Agreement for so
long as such Serviced Mortgage Loans remain subject to the provisions of the
Trust Agreement.
WHEREAS, Norwest 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.
WHEREAS, Lehman Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder is an intended third party
beneficiary of this 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 6/23/99 SWSA
between Lehman Capital and the Servicer incorporated by reference herein,
shall have the meanings ascribed to such terms in the Trust Agreement.
2. Merger. For administrative convenience, the Servicer and Lehman
Capital hereby agree that the servicing of those Serviced Mortgage Loans
currently serviced under the 9/1/99 SWSA shall be transferred to the 6/23/99
SWSA as reconstituted by this Reconstituted Servicing Agreement.
3. 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
6/23/99 SWSA, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the 6/23/99 SWSA, as so modified, are and shall be a
part of this Agreement to the same extent as if set forth herein in full.
4. 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 and the trust fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the "Purchaser" (as defined in the
6/23/99 SWSA) to enforce the obligations of the Servicer under the 6/23/99
SWSA and the term "Purchaser" as used in the 6/23/99 SWSA shall refer to the
Master Servicer or the Trustee as the context requires. 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 X of the 6/23/99
SWSA.
5. No Representations. Other than those representations and
warranties made by the Servicer in Article III of the 6/23/99 SWSA, 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.
6. Notices. All notices and communications between or among the
parties hereto or required to be provided to the Trustee 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.
7. 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.
8. 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.
9. 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 SWSA.
10. Notices and Remittances to the Master Servicer and Trustee. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 091-000-019
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: # 13633800 ARC 2000-BC1
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
401 S. Tryon Street _NC.1179
Charlotte, North Carolina 28288-1174
Attention: Structured Finance Trust Services
Telephone: (704) 383-9468
Facsimile: (704) 383-6039
11. 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 upon receipt thereof by the Servicer.
<PAGE>
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Stanley Labanowski
---------------------------------------
Name: Stanley Labanowski
Title: Vice President
OPTION ONE MORTGAGE CORPORATION
By: /s/ William L. O'Neill
---------------------------------------
Name: William L. O'Neill
Title: Senior Vice President
<PAGE>
EXHIBIT A
Modifications to the SWSA
1. The definition of "Monthly Advance" in Article I is hereby amended by
replacing the words "immediately preceding Determination Date" in clause
(ii) thereof with the words "on such Remittance Date".
2. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to the custody
of the Serviced Mortgage Loans among (i) U.S. Bank Trust National
Association, as Custodian, the Trustee and Structured Asset
Securities Corporation (the "Depositor").
3. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by amending the parenthetical in the fourth line thereof
to read as follows:
"(net of related Servicing Fee for Principal Prepayments in full
only)".
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: U.S. Bank Trust National Association.
5. The definition of "Prepayment Interest Shortfall Amount" is hereby
amended by (i) inserting the words "or in part" between the words "full"
and "during" in the second line thereof.
6. The definition of "Qualified Depository" in Article I is hereby amended
in its entirety to read as follows:
Qualified Depository: Either (i) a depository the accounts
of which are insured by the FDIC and the debt obligations of
which are rated AA or better by S&P, Duff & Phelps, Moody's
or Fitch or (ii) the corporate trust department of any bank
the debt obligations of which are rated at least A-1 or its
equivalent by either of Fitch or Duff & Phelps and S&P or
Moody's.
7. Section 4.04 (Establishment of and Deposit to Custodial Account) is
hereby amended as follows:
(a) the words "in trust for the Purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No.
1999 LB/00I" in the fourth and fifth lines of the first
sentence of the first paragraph shall be replaced by the
following: "in trust for Norwest Bank Minnesota, National
Association, as Master Servicer for ARC 2000-BC1 Trust".
(b) by deleting the word "and" at the end of clause (ix), by
removing the period from the end of clause (x) and replacing it
with a semi-colon followed by the word "and", and by adding a
new clause (xi) to read as follows:
(xi) the amount of any Prepayment Interest Shortfall
Amount required to be paid by the Servicer pursuant
to Section 7.04.
8. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended as follows:
(a) by deleting the word "and" at the end of clause (vi), by
removing the period from the end of clause (vii) and replacing
it with a semi-colon followed by the word "and", and by adding
a new clause (viii) to read as follows:
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.
9. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser of Conventional Residential
Adjustable and Fixed Rate Mortgage Loans, Group No. 1999 LB/00I" in the
fourth, fifth and sixth line of the first sentence of the first
paragraph, and replacing it with the following:
"in trust for Norwest Bank, Minnesota, National Association, as
Master Servicer for the ARC 2000-BC1 Trust".
10. Section 5.01 (Remittances) is hereby amended by inserting the following
parenthetical between the words "amounts" and "deposited" in the first
paragraph of such section:
"(on a scheduled/scheduled basis)"
11. Section 5.02 (Statements to Purchaser) is hereby amended by (i) replacing
the words "Remittance Date" in the first line thereof with the words
"10th calendar day" (or if such 10th calendar day is not a Business Day,
the next succeeding Business Day) and (ii) inserting the following
sentence immediately following the first sentence in the first paragraph
of such Section:
"Such Monthly Remittance Advice shall also include on a
cumulative and aggregate basis (i) the amount of claims filed,
(ii) the amount of any claim payments made and (iii) the amount
of claims denied with respect to those Serviced Mortgage Loans
covered by the loan-level primary mortgage insurance policies
provided by MGIC and PMI Mortgage Insurance Co. or any other
provider of primary mortgage insurance purchased by the Trust
(collectively, the "PMI Policies").
12. The first three sentences of Section 11.02 (Termination Without Cause)
are hereby deleted and replaced with the following:
At the sole discretion of the Directing Holder, the Directing Holder
may terminate the rights and obligations of the Servicer under this
Agreement. Any such termination shall be with 30 days' prior notice, in
writing and delivered to the Trustee, the Master Servicer and the
Servicer by registered mail as provided in Section 12.05. The Master
Servicer or the Trustee shall have no right to terminate the Servicer
pursuant to the foregoing sentences of this Section 11.02. The
termination fee to be paid by the Directing Holder for the termination of
servicing without cause pursuant to this Section 11.02 shall be 1.25% of
the outstanding principal balance of the Mortgage Loans for which
servicing is being terminated.
13. A new Section 12.12 (Intended Third Party Beneficiaries) is added to the
SWSA to read as follows:
Section 12.12 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent
of such parties as set forth herein, that the Master Servicer and the
Directing Holder receive the benefit of the provisions of this Agreement
as intended third party beneficiaries of this Agreement to the extent of
such provisions. The Servicer shall have the same obligations to the
Master Servicer and the Directing Holder as if they were parties to this
Agreement, and the Master Servicer and the Directing Holder shall have
the same rights and remedies to enforce the provisions of this Agreement
as if they were parties to this Agreement. The Servicer shall only take
direction from the Master Servicer (if direction by the Master Servicer
is required under this Agreement) unless otherwise directed by this
Agreement. Notwithstanding the foregoing, all rights and obligations of
the Master Servicer hereunder (other than the right to indemnification)
shall terminate upon termination of the Trust Agreement and of the Trust
Fund pursuant to the Trust Agreement.
14. The parties hereby agree that all definitions in Article I and the
provisions of Section 11.02 of the SWSA relating to the transfer of
Distressed Mortgage Loans to a successor Special Servicer shall not apply
to this Agreement.
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between LEHMAN CAPITAL, A
DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation ("Lehman
Capital"), and OCWEN FEDERAL BANK FSB, a federal savings bank (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") to Structured
Asset Securities Corporation ("SASCO"), which in turn has conveyed the
Serviced Mortgage Loans to First Union National Bank, a national banking
association, as trustee (the "Trustee") under a trust agreement dated as of
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer ("Norwest," and, together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Lehman Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Lehman Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder and the Master Servicer to terminate the rights
and obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to various servicing agreements (the "Original Servicing
Agreements") between Lehman Capital and the Servicer and the parties wish to
consolidate the servicing of the Serviced Mortgage Loans under the Flow
Servicing Agreement (as defined below) as reconstituted by this Agreement.
WHEREAS, Lehman Capital and the Servicer agree that the provisions of
the Flow Servicing Agreement (as defined below) shall apply to the Mortgage
Loans only to the extent provided herein and that this Agreement shall govern
the Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS, Norwest 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 Agreement.
WHEREAS, Lehman Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder is an intended third party
beneficiary of this 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 Residential
Flow Servicing Agreement, dated as of August 1, 1999, between Lehman Capital
and the Servicer for the servicing of performing and non-performing
residential mortgage loans and REO Properties (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 and the trust fund (the "Trust Fund") created 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 and the term "Owner" as used in the Flow Servicing
Agreement shall refer to the Master Servicer or the Trustee as the context
requires. 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, which failure
results in a Servicer Event of Default, as provided in Article X of the Flow
Servicing Agreement.
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 or required to be provided to the Trustee 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.
Accordingly, the parties hereto agree that the Original Servicing Agreements
shall have no force and effect with respect to the Serviced Mortgage Loans on
or after the Reconstitution Date other than obligations and rights accruing
prior to such date and except to the extent provided in this Agreement.
9. Notices and Remittances to the Master Servicer and Trustee. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 091-000-019
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: # 13633800, ARC 2000-BC1
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
401 S. Tryon Street - N.C. 1179
Charlotte, North Carolina 28288-1179
Attention: Structured Finance Trust Services
Telephone: (704) 383-9568
Facsimile: (704) 383-6039
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 certificate of insurance evidencing
such bond and insurance policy upon request by the Master Servicer.
<PAGE>
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Stanley Labanowski
---------------------------------
Name: Stanley Labanowski
Title: Vice President
OCWEN FEDERAL BANK FSB
By: /s/ Ronald M. Faris
---------------------------------
Name: Ronald M. Faris
Title: Executive Vice President
<PAGE>
EXHIBIT A
Modifications to the Flow Servicing Agreement
1. The definition of "Collection Account" in Article I is hereby amended by
deleting the words "in trust for Lehman Capital, a Division of Lehman
Brothers Holdings Inc. and its successors and assigns" and substituting
the following words: "in trust for Norwest Bank Minnesota, National
Association, as master servicer for the ARC 2000-BC1 Trust."
2. The definition of "Collection Period" in Article I is hereby amended in
its entirety to read as follows:
"Collection Period" means with respect to each Distribution Date,
the period commencing on the second day of the month immediately
preceding the month of the Distribution Date and ending on the first
day of the month of such Distribution Date.
3. A new definition of "Custodial Agreements" is added to Article I
immediately following the definition of "Current Servicer" to read as
follows:
"Custodial Agreements": The custodial agreements relating to the
custody of the Serviced Mortgage Loans among (i) Bankers Trust of
California, N.A., as Custodian, the Trustee and Structured Asset
Securities Corporation (the "Depositor"), (ii) Chase Bank of Texas,
N.A., as custodian, the Trustee and the Depositor and (iii) U.S.
Bank Trust National Association, as custodian, the Trustee and the
Depositor.
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means either Bankers Trust of California, N.A., Chase
Bank of Texas, National Association or U.S. Bank Trust National
Association, as the context requires.
5. The definition of "Distribution Date" in Article I is hereby amended in
its entirety to read as follows:
"Distribution Date" means the 18th day (or if such 18th day is not a
Business Day, the first Business Day immediately following) of any
month.
6. The definition of "Escrow Accounts" in Article I is hereby amended by
deleting the words "for Lehman Capital, a Division of Lehman Brothers
Holdings Inc. and its successors and assigns" and replacing them with the
following words: "for Norwest Bank Minnesota, National Association, as
Master Servicer for the ARC 2000-BC1 Trust".
7. The definition of "Eligible Account" in Article I is hereby amended in
its entirety to read as follows:
"Eligible Account:" An account maintained by either (i) a depository
institution the accounts of which are insured by the FDIC and the
debt obligations of which are rated "AA" or better by S&P, Duff &
Phelps, Moody's or Fitch or (ii) the corporate trust department of
any bank the debt obligations of which are rated at least A-1 or its
equivalent by either of Fitch or Duff & Phelps and S&P or Moody's.
8. A new definition of "Monthly Advance" is added to Article I immediately
following the definition of "Missing Document Report" to read as follows:
Monthly Advance: means with respect to each Distribution Date and
each Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Loan, and that (i) was
delinquent at the close of business on the first day of the month in
which such Distribution Date occurs and (ii) was not the subject of
a previous Monthly Advance, 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
Loan. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in
respect of such Loan, such determination shall be evidenced by a
certificate of a Servicing Officer delivered to the Master Servicer
setting forth such determination and the procedures and
considerations of the Servicer forming the basis of such
determination, which shall include a copy of any broker's price
opinion and any other information or reports obtained by the
Servicer which may support such determinations.
9. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by inserting the words (i) "voluntary (not including
discounted payoffs)" between the words "a" and "principal" in the second
line thereof.
10. A new definition of "Prime Rate" is added to Article I immediately
following the definition of "Prepayment Interest Shortfall Amount" to
read as follows":
"Prime Rate" means the prime rate published from time to time, as
published as the average rate in The Wall Street Journal Northeast
Edition.
11. The definition of "Servicing Advances" in Article I is hereby amended in
its entirety to read as follows:
"Servicing Advances" means all customary, reasonable and necessary
"out-of-pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred by the Servicer in the performance
by the Servicer of its servicing obligations hereunder, including,
but not limited to, (a) Property Protection Expenses, Escrow
Payments, Property Improvement Expenses and (b) any enforcement or
administrative or judicial proceedings, including foreclosures.
12. The definition of "Servicing Fee" in Article I is hereby amended in its
entirety to read as follows:
"Servicing Fee" means an amount equal to one twelfth the product of
(a) a rate per annum equal to 0.50% and (b) the outstanding
principal balance of the Loan. The obligation of the Trustee to pay
the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect
to interest from Liquidation Proceeds) of such Monthly Payment
collected by the Servicer, or as otherwise provided under this
Agreement.
13. The parties hereto acknowledge that Section 2.1 (Transfer of Servicing
Files to Servicer) of the Flow Servicing Agreement shall be inapplicable
to this Reconstitution Agreement.
14. The parties hereto acknowledge that to the extent that the provisions of
Section 2.2 (Release of Loan Documents) are inconsistent with the
provisions of the Custodial Agreements relating to the Serviced Mortgage
Loans, the provisions of the Custodial Agreements shall govern.
15. Section 2.3(b) is hereby amended by deleting the word "and" at the end of
clause (iv), deleting the period at the end of clause (v) and replacing
it with a semi-colon followed by the word "and" and a semicolon; and by
adding a new clause (vi) to read as follows:
(vi) any Prepayment Interest Shortfall Amount.
16. A new Section 5.5 is added to the Flow Servicing Agreement to read as
follows:
Section 5.6 Annual Officer's Certificate. On or before April 30 of
each year, beginning with April 30, 2001, the Servicer, at its own
expense, will deliver to the 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.
17. Section 6.2 (Remittances and Monthly Report) is hereby amended as
follows:
(1) paragraph (b) shall be deleted in its entirety and replaced
with the following new paragraph (b):
(b) to make payments to the Master Servicer in the amounts and
in the manner provided by Section 6.6.
(2) the word "Owner" in paragraph (d) shall be replaced by the
words "Trust Fund" and the parenthetical in such paragraph "(as
set forth in Section 6.4 below)" shall be inapplicable.
(3) a new paragraph (e) shall be added to read as follows:
(e) to reimburse the Servicer for Monthly Advances of the
Servicer's funds made pursuant to Section 6.8, it being
understood that, in the case of any such reimbursement,
the Servicer's rights thereto shall be prior to the rights
of the Trust Fund.
18. Section 6.3 (Remittance Upon Termination) is hereby amended by restating
paragraph (c) of such Section as follows:
(c) to reimburse itself for all unpaid Servicing Fees, Monthly
Advances and Servicing Advances, it being understood that
the Servicer's rights to such reimbursement shall be prior
to the rights of the Trust Fund.
19. The parties hereto acknowledge that Section 6.4 (Billing) shall be
inapplicable to this Reconstitution Agreement.
20. The parties hereto acknowledge that Section 6.5 (Missing Document Report)
shall be superseded by the provisions of the Custodial Agreements.
21. New Sections 6.6, 6.7 and 6.8 are hereby added to the Flow Servicing
Agreement to read as follows:
Section 6.6. Remittances.
On each Distribution Date the Servicer shall remit by wire
transfer of immediately available funds to the Master Servicer (a)
all amounts deposited in the Collection Account as of the close of
business on the last day of the related Collection Period (net of
charges against or withdrawals from the Collection Account pursuant
to Section 6.3), plus (b) all Monthly Advances, if any, which the
Servicer is obligated to make pursuant to Section 6.8, minus (c) any
amounts attributable to principal prepayments, Liquidation Proceeds,
insurance proceeds, condemnation proceeds or REO disposition
proceeds received after the applicable Collection Period, which
amounts shall be remitted on the following Distribution Date,
together with any additional interest required to be deposited in
the Collection Account in connection with such Principal Prepayment
Interest Shortfall Amount in accordance with Section 2.3(b)(vi), 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 Distribution Date occurs, which amounts shall be
remitted on the Distribution Date next succeeding the Collection
Period for such amounts.
With respect to any remittance received by the Master Servicer
after the Business Day on which such payment was due, the Servicer
shall pay to the Master Servicer interest on any such late payment
at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three percentage points, but in no event
greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Collection Account by the
Servicer on the date such late payment is made and shall cover the
period commencing with the day following such Business Day and
ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Distribution Date. The
payment by the Servicer of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by
the Servicer.
All remittances required to be made to the Master Servicer
shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA #: 3970771416
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: 13633800, ARC 2000-BC1
Section 6.7 Statements to Master Servicer.
Not later than the fourteenth calendar day (or if such
fourteenth calendar day is not a Business Day, the immediately
succeeding Business Day) of each month, the Servicer shall furnish
to the Master Servicer (a) a monthly remittance advice containing
such information in the form of FNMA form 2010 or such other form as
shall be required by the FNMA Guides or by the Master Servicer as to
the accompanying remittance and the period ending on the preceding
Determination Date and (b) all such information required pursuant to
clause (a) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer.
Such monthly remittance advice shall also include on a
cumulative basis the amount of any (i) claims filed, (ii) claim
payments made and (iii) claims denied with respect to those Serviced
Mortgage Loans covered by loan-level primary mortgage insurance
policies provided by PMI Mortgage Insurance Co. or any other
provider of primary mortgage insurance purchased by the Trust
(collectively, the "PMI Policies").
In addition, not more than 60 days after the end of each
calendar year, commencing December 31, 2000, the Servicer shall
furnish to each Person who was an owner of a Serviced Mortgage Loan
at any time during such calendar year as required by applicable law
or if not required by applicable law, at the request of such owner
as to the aggregate of remittances for the applicable portion of
such year.
Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information
shall be provided by the Servicer pursuant to any requirements of
the Internal Revenue Code as from time to time are in force.
The Servicer shall provide the Master Servicer with such
information available to it concerning the Mortgage Loans as is
necessary for the Master Servicer to prepare the Trust Fund's
federal income tax return as the Master Servicer may reasonably
request from time to time.
Section 6.8 Monthly Advances by Servicer.
The Servicer shall make Monthly Advances through the
Distribution Date immediately preceding the distribution of all
Liquidation Proceeds and other payments or recoveries (including
insurance proceeds and condemnation proceeds) with respect to the
related Loans.
22. A new paragraph is hereby added at the end of Section 7.1
(Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 7.1 shall survive the engagement of
the Servicer to perform the servicing responsibilities hereunder and
the delivery of the Servicing Files to the Servicer and shall inure
to the benefit of the Trustee. Upon discovery by either the
Servicer, the Master Servicer or the Trustee of a breach of any of
the foregoing representations and warranties which materially and
adversely affects the ability of the Servicer to perform its duties
and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such Mortgaged
Property or the interest of the Trustee, the party discovering such
breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice
to the Servicer of any breach of a representation or warranty set
forth in Section 7.1 which materially and adversely affects the
ability of the Servicer to perform its duties and obligations under
this Agreement or otherwise materially and adversely affects the
value of the Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property, the Servicer shall use
its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Servicer shall, at
the Trustee's option, assign the Servicer's rights and obligations
under this Agreement (or respecting the affected Loans) to a
successor Servicer selected by the Trustee with the prior consent
and approval of the Master Servicer. Such assignment shall be made
in accordance with Section 10.4.
In addition, the Servicer shall indemnify the Trustee and
Master Servicer and hold each of them harmless against any costs
resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Servicer's
representations and warranties contained in this Agreement. It is
understood and agreed that the remedies set forth in this Section
7.1 constitute the sole remedies of the Master Servicer and the
Trustee respecting a breach of the foregoing representations and
warranties.
Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Section 7.2 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within
the applicable cure period, and (iii) demand upon the Servicer by
the Trustee or the Master Servicer for compliance with this
Agreement.
23. The parties hereto acknowledge that the remedies set forth in Section
10.1(b) may be exercised by either the Master Servicer or Trustee on
behalf of the Trust.
24. A new paragraph is hereby added as the final paragraph of Section 10.1 to
read as follows:
By a written notice, the Trustee and the Master Servicer may
waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a
past default, such default shall cease to exist, and any Event of
Default under Section 9.1 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.
25. The parties hereto acknowledge that the prior written approval of "Owner"
in Section 10.2 refers to both the prior written approval of the Master
Servicer and the Depositor.
26. Section 10.1(c) is hereby amended in its entirety to read as follows:
(c) At the sole discretion of the Directing Holder, the
Directing Holder may terminate the rights and obligations of the
Servicer under this Agreement. Any such termination shall be with 30
days' prior notice, in writing and delivered to the Trustee, the
Master Servicer and the Servicer by registered mail. The Servicer
shall comply with the termination procedures set forth in Section
10.4 hereof. The Master Servicer or the Trustee shall have no right
to terminate the Servicer pursuant to this Section 10.1(c). In the
event of a termination pursuant to this Section 10.1(c), the
Directing Holder shall pay to the Servicer a sum, as liquidated
damages, equal to the product of (a) two, (b) the annual servicing
fee rate, and (c) the aggregate unpaid principal balance of the
Loans for which this Agreement is going to be terminated as of the
last day of the month following receipt of such notice of
termination.
27. A new Section 12.10 (Intended Third Party Beneficiaries) is added to the
Flow Servicing Agreement to read as follows:
Section 12.10 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer and the Directing Holder receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master Servicer
and the Directing Holder as if they were parties to this Agreement,
and the Master Servicer and the Directing Holder shall have the same
rights and remedies to enforce the provisions of this Agreement as
if they were parties to this Agreement. The Servicer shall only take
direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed
by this Agreement. Notwithstanding the foregoing, all rights and
obligations of the Master Servicer hereunder (other than the right
to indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
28. A new paragraph is hereby added to Section 10.4 immediately preceding the
existing paragraph of Section 10.4, to read as follows:
Within 90 days of the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 10.1(b) or 10.3, the Master Servicer shall (i) succeed to
and assume all of the Servicer's responsibilities, rights (other
than those rights provided in 10.1(d)), duties and obligations under
this Agreement (provided that the Master Servicer shall immediately
assume the obligation of the Servicer to make Monthly Advances
pursuant to Section 6.8 effective with such termination of the
Servicer), or (ii) appoint a successor meeting the eligibility
requirements of this Agreement and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement simultaneously with the
termination of the Servicer's responsibilities, duties and
liabilities under this Agreement; or (b) pursuant to Section
10.1(c), the Directing Holder shall appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement simultaneously
with the termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the Servicer
shall be subject to the approval of the Master Servicer, the
Depositor and each Rating Agency (as such term is defined in the
Trust Agreement). Each Rating Agency must deliver to the Trustee a
letter 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. In addition, with respect to any
FHA Loans serviced hereunder, the Servicer shall provide notice of
such change in servicers to HUD on HUD Form 92080 or such other form
as prescribed by HUD, at least 10 days after such transfer of
servicing. In connection with such appointment and assumption, the
Master Servicer or the Depositor, as applicable, may make such
arrangements for the compensation of such successor out of payments
on Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the
Servicer under this Agreement. In the event that the Servicer's
duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the Servicer
shall discharge such duties and responsibilities during the period
from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and
prudence which it is obligated to exercise under this Agreement, and
shall take no action whatsoever that might impair or prejudice the
rights or financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned sections
shall not become effective until a successor shall be appointed
pursuant to this Section 10.4 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to
Sections 10.1 and the remedies available to the Trustee under
Section 7.1, it being understood and agreed that the provisions of
such Section 7.1 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the
termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Servicer shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Servicer's responsibilities and
rights hereunder and the transfer of servicing responsibilities to
the successor Servicer, including without limitation, the transfer
to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Collection
Account or any Escrow Account or thereafter received with respect to
the Loans. In the event the Servicer is terminated pursuant to
Section 10.1(c), the Directing Holder shall be responsible for
payment of any out-of-pocket costs incurred by the Servicer in
connection with the transfer of the Serviced Mortgage Loans to a
successor servicer.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 7.1 and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named
as a party to this Agreement. Any termination or resignation of the
Servicer or termination of this Agreement pursuant to Sections 10.1
or 10.3 shall not affect any claims that the Master Servicer or the
Trustee may have against the Servicer arising out of the Servicer's
actions or failure to act prior to any such termination or
resignation.
The Servicer shall deliver promptly to the successor Servicer
the funds in the Collection Account and Escrow Account and all Loan
Documents and related documents and statements held by it hereunder
and the Servicer shall account for all funds and shall execute and
deliver such instruments and do such other things as may reasonably
be required to more fully and definitively vest in the successor all
such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
Execution
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between LEHMAN CAPITAL, A
DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation ("Lehman
Capital"), and AMERIQUEST MORTGAGE COMPANY, 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 First Union National
Bank, a national banking association, as trustee (the "Trustee") under a trust
agreement dated as of January 1, 2000 (the "Trust Agreement"), among the
Trustee, Norwest Bank Minnesota, National Association, as master servicer
("Norwest," and, together with any successor Master Servicer appointed
pursuant to the provisions of the Trust Agreement, the "Master Servicer") and
SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Lehman Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Lehman Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder and the Master Servicer to terminate the rights
and obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, Lehman Capital and the Servicer agree that the provisions of
the Seller's Warranties and Servicing Agreement, dated as of August 1, 1998,
between Lehman Capital and the Servicer for conventional residential
adjustable rate mortgage loans, Ameri Group 2 (the "SWSA") shall apply to the
Serviced Mortgage Loan only to the extent provided herein and that this
Reconstituted Servicing Agreement shall govern the Serviced Mortgage Loans for
so long as such Serviced Mortgage Loans remain subject to the provisions of
the Trust Agreement.
WHEREAS, Norwest 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 Agreement.
WHEREAS, Lehman Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder is an intended third party
beneficiary of this 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 SWSA
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
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the SWSA, 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
"Purchaser" (as defined in the SWSA) to enforce the obligations of the
Servicer under the SWSA. 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 X of the SWSA.
4. No Representations. Other than those company representations and
warranties made by the Servicer in Article III, Section 3.01 of the SWSA,
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 Warranties and Servicing
Agreement.
9. Notices and Remittances to the Master Servicer. All notices
required to be delivered to the Purchaser or the Master Servicer under this
Agreement shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 091-000-019
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: # 13633800, ARC 2000-BC1
Any notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
401 S. Tryon Street - N.C. 1179
Charlotte, North Carolina 28288-1179
Attention: Structured Finance Trust Services
Telephone: (704) 383-9568
Facsimile: (704) 383-6039
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Stanley Labanowski
-------------------------------------
Name: Stanley Labanowski
Title: Vice President
AMERIQUEST MORTGAGE COMPANY
By: /s/ John P. Grazer
-------------------------------------
Name: John P. Grazer
Title: Executive Vice President
EXHIBIT A
Modifications to the Warranties and Servicing Agreement
1. The definition of "Custodial Agreement" in Article I is hereby deleted
and replaced with the following:
"The custodial agreement relating to custody of the Serviced
Mortgage Loans among Chase Bank of Texas, National Association, as
Custodian, First Union National Bank, as Trustee, and Structured
Asset Securities Corporation, as Depositor. "
2. 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 Company, to be recoverable from collections or other
recoveries in respect of such Mortgage Loan."
3. The definition of "Prepayment Interest Shortfall Amount" in Article I
is hereby amended by amending the parenthetical in the fourth line
thereof to read as follows:
"(net of related Servicing Fee for Principal Prepayments in
full only)".
4. The definition of "Qualified Depository" in Article I is hereby
deleted and replaced with the following:
"Either (i) a depository the accounts of which are insured
by the FDIC through the BIF or the SAIF and the debt obligations of
which are rated AA or better by S&P, Duff & Phelps, Fitch or Moody's
or (ii) the corporate trust department of any bank the debt
obligations of which are rated at least A-1 or its equivalent by
Fitch or Duff & Phelps and S&P or Moody's."
5. 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 following) of any month, following
the First Remittance Date."
6. The following sentence is added to the end of the second paragraph of
Section 7.01:
The Servicer shall be entitled to reimbursement for such
Monthly Advances to the same extent as for all other Monthly Advances
made pursuant to Section 5.03."
7. The words "the Purchaser of Conventional Residential Adjustable Rate
Mortgage Loans, Ameri Group 2, and various Mortgagors" in the first
paragraph of Section 4.04 are hereby deleted and replaced with the
following: "Norwest Bank Minnesota, National Association, as master
servicer for the ARC 2000-BC1 Trust."
8. Section 4.04 is further amended by deleting the word "and" at the end
of clause (viii), replacing the period at the end of clause (ix) with
"; and", and adding the following immediately after clause (ix):
"(x) any principal prepayment penalties received in
connection with the Mortgage Loans."
9. Section 4.05 is amended by deleting the word "and" at the end of
clause (vi), replacing the period at the end of clause (vii) with ";
and", and adding the following clause (viii) immediately following
clause (vii):
"(viii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 7.01, 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."
10. The words "the Purchaser of Conventional Residential Adjustable Rate
Mortgage Loans, Ameri Group 2, and various Mortgagors" in the first
paragraph of Section 4.06 are hereby deleted and replaced with the
following: "Norwest Bank Minnesota, National Association, as master
servicer for the ARC 2000-BC1 Trust."
11. The first paragraph of Section 5.01 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
4.05), plus (b) all amounts, if any, which the Servicer is obligated
to distribute pursuant to Section 7.01, minus (c) any amounts
attributable to Principal Prepayments, Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds or REO Disposition Proceeds
received after the applicable Principal Prepayment Period, which
amounts shall be remitted on the following Remittance Date, together
with any Prepayment Interest Shortfall Amount required to be
deposited in the Custodial Account in connection with such Principal
Prepayment in accordance with Section 7.01, 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."
12. Section 5.02 (Statements to Purchaser) is hereby amended by (i)
deleting the words "Remittance Date" in the first line of such
Section, and substituting the following: "tenth calendar day of each
month (or if such tenth calendar day is not a Business Day, the next
succeeding Business Day)" and (ii) inserting the following sentence
at the end of the first paragraph of such Section:
"Such Monthly Remittance Statement shall also include on a
cumulative and aggregate basis (i) the amount of claims file, (ii)
the amount of any claim payments made and (iii) the amount of claims
denied with respect to those Serviced Mortgage Loans covered by the
loan-level primary mortgage insurance policies provided by PMI
Mortgage Insurance Co. or any other provider of primary mortgage
insurance purchased by the Trust (collectively, the "PMI Policies").
13. The parties hereby agree that Section 4.19 ("Transfer Upon
Delinquency") of the SWSA shall not apply to the Serviced Mortgage
Loans.
14. The following new paragraph is added to the end of Section 5.03 of
the SWSA:
"The Servicer shall make any Monthly Advances required
hereunder from either (i) its own funds; or (ii) from the Custodial
Account, to the extent of funds held therein for future distribution;
or (iii) in the form of any combination of (i) and (ii). Any amounts
held for future distribution and used to make the Monthly Advance
distribution amount (in full or part) shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by
deposit in the Custodial Account on or before any future Remittance
Date to the extent that the amount then on deposit in the Custodial
Account for the related Remittance Date would be insufficient to
remit all sums required under Section 5.01 of this Agreement."
15. Section 11.02 (Termination Without Cause) is hereby amended as follows:
"At the sole direction of the Directing Holder, the
Directing Holder may terminate any rights the Servicer may have
hereunder, without cause, by (i) providing thirty days written notice
delivered by registered mail to the Servicer, the Master Servicer and
the Trustee and (ii) paying the then agreed upon termination fee;
provided, however, that such termination fee shall be reasonable and
negotiated in good faith and provide for the following: (a) A service
release fee based upon the fair market value of such servicing
rights; (b) reimbursement of all outstanding advances as of the
servicing transfer date (including Monthly Advances, Servicing
Advances, and any nonrecoverable advances); (c) reimbursement of all
outstanding ancillary charges as of the servicing transfer date
(including late charges, NSF fees, assumption fees and other
administrative charges, but excluding prepayment premiums); and (d)
payment of the Servicing Fee accrued through the servicing transfer
date. Payment of such termination fee will be a precondition to the
service released transfer."
16. A new Section 12.12 (Intended Third Party Beneficiaries)) is added to
the SWSA to read as follows:
Section 12.12 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer and the Directing Holder receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer and
the Directing Holder as if they were parties to this Agreement, and
the Master Servicer and the Directing Holder shall have the same
rights and remedies to enforce the provisions of this Agreement as if
they were parties to this Agreement. The Servicer shall only take
direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed
by this Agreement. Notwithstanding the foregoing, all rights and
obligations of the Master Servicer hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
Execution
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between LEHMAN CAPITAL, A
DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation ("Lehman
Capital"), and LIFE BANK, a federal banking institution chartered under the
laws of the United States ("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") to Structured
Asset Securities Corporation ("SASCO"), which in turn has conveyed the
Serviced Mortgage Loans to First Union National Bank, a national banking
association, as trustee (the "Trustee") under a trust agreement dated as of
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer ("Norwest," and, together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Lehman Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Lehman Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder and the Master Servicer to terminate the rights
and obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, Lehman Capital and the Servicer agree that the provisions of
the Seller's Warranties and Servicing Agreement, dated May 21, 1999 (Fixed and
Adjustable Rate, Conventional First Lien Mortgage Loans), Group 1999-1 (the
"SWSA") shall apply to the Serviced Mortgage Loans only to the extent provided
herein and that this Reconstituted Servicing Agreement shall govern the
Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS, Norwest 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.
WHEREAS, Lehman Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder is an intended third party
beneficiary of this 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 SWSA between
Lehman Capital and the Servicer 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
SWSA, except as otherwise provided herein and on Exhibit A hereto, and that
the provisions of the SWSA, 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 and the trust fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the "Purchaser" (as defined in the
SWSA) to enforce the obligations of the Servicer under the SWSA and the term
"Purchaser" as used in the SWSA shall refer to the Master Servicer or the
Trustee as the context requires. 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 X of the SWSA.
4. No Representations. Other than those representations and
warranties made by the Servicer in Article III of the SWSA, 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 or required to be provided to the Trustee 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 or , if
sent by electronic mail, when electronic confirmation of receipt by the
recipient is received by the sender of such notice. 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 SWSA.
9. Notices and Remittances to the Master Servicer and Trustee. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 091-000-019
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For further credit to: # 13633800, ARC 2000-BC1
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
401 S. Tryon Street - N.C. 1179
Charlotte, North Carolina 28288-1179
Attention: Structured Finance Trust Services
Telephone: (704) 383-9568
Facsimile: (704) 383-6039
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 upon receipt thereof by the Servicer.
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Stanley Labanowski
------------------------------------
Name: Stanley Labanowski
Title: Executive Vice President
LIFE BANK
By: /s/ W. Todd Peterson
--------------------------------------
Name: Stanley Labanowski
Title: Senior Vice President
EXHIBIT A
Modifications to the SWSA
1. The definition of "Custodial Agreement" in Article I is hereby amended
in its entirety to read as follows:
Custodial Agreement: The custodial agreement relating to the
custody of the Serviced Mortgage Loans among (i) U.S. Bank
Trust National Association, as Custodian, the Trustee and
Structured Asset Securities Corporation (the "Depositor").
2. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
Custodian: U.S. Bank Trust National Association or its
successor in interest or assigns or any successor to the
Custodian under the Custodial Agreement as provided therein.
3. The definition of "Prepayment Interest Shortfall Amount" in Article I
is hereby amended by amending the parenthetical in the fourth line
thereof to read as follows:
"(net of related Servicing Fee for Principal Prepayments in
full only)".
4. The definition of "Qualified Depository" in Article I is hereby
amended in its entirety to read as follows:
Qualified Depository: Either (i) a depository the accounts
of which are insured by the FDIC through the BIF or the SAIF
and the debt obligations of which are rated AA or better by
S&P, Duff & Phelps, Fitch or Moody's or (ii) the corporate
trust department of any bank the debt obligations of which
are rated at least A-1 or its equivalent by either of Fitch
or Duff & Phelps and S&P or Moody's.
5. The definition of "Remittance Date" is hereby restated in its
entirety to read as follows:
Remittance Date: The 18th calendar day (or if such 18th
calendar day is not a Business Day, the first Business Day
immediately following) of any month.
6. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
(a) the words "in trust for the Purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group
No. 1999-1" in the fourth and fifth lines of the first
sentence of the first paragraph shall be replaced by the
following: "in trust for Norwest Bank Minnesota,
National Association, as Master Servicer for the
ARC 2000-BC1 Trust".
(b) by deleting the word "and" at the end of clause (vii),
by removing the period at the end of clause (viii) and
replacing it with a semi-colon followed by the word
"and", and by adding a new clause (ix) to read as
follows:
(xi) the amount of any Prepayment Interest
Shortfall Amount required to be paid by the
Servicer pursuant to Section 7.01.
7. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended as follows:
(a) by deleting the word "and" at the end of clause (vi), by
removing the period at the end of clause (vii) and
replacing it with a semi-colon followed by the word
"and", and by adding a new clause (viii) to read as
follows:
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.
8. Section 4.06 (Establishment of and Deposits to Escrow Account) shall
be amended by deleting the words "Purchaser of Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group No.
1999-1" in the fourth, fifth and sixth lines of the first sentence of
the first paragraph, and replacing it with the following:
"in trust for Norwest Bank, Minnesota, National Association,
as Master Servicer for the ARC 2000-BC1 Trust".
9. Section 5.02 (Statements to Purchaser) is hereby amended by (i)
replacing the words "Remittance Date" with the "10th Calendar Day of
the Month (or if such day is not a Business Day, the next succeeding
Business Day)" in the first sentence thereof and (ii) inserting the
following sentence at the end of the first paragraph of such Section:
"Such Monthly Remittance Advice shall also include on a
cumulative and aggregate basis (i) the amount of claim
filed, (ii) the amount of any claim payments made and (iii)
the amount of claims denied with respect to those Serviced
Mortgage Loans covered by the loan-level primary mortgage
insurance policies provided by MGIC and PMI Mortgage
Insurance Co. or any other provider of primary mortgage
insurance purchased by the Trust (collectively, the "PMI
Policies").
10. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
replacing the words "March 31st" and "March 31, 2000" in the first
and second lines of the first sentence with the words "April 30" and
"April 30, 2001", respectively.
11. Section 6.05 (Annual Independent Accountants' Servicing Report) is
hereby amended by replacing the words "March 31st" and "March 31,
2000" in the first line of the first sentence with the words "April
30th and "April 30, 2001", respectively.
12. The first two paragraphs of Section 11.02 (Termination Without Cause)
are hereby deleted and replaced with the following:
At the sole discretion of the Directing Holder, the
Directing Holder may terminate the rights and obligations of the
Servicer under this Agreement. Any such termination shall be with 30
days' prior notice, in writing and delivered to the Trustee, the
Master Servicer and the Servicer by registered mail as provided in
Section 12.05. The Master Servicer or the Trustee shall have no right
to terminate the Servicer pursuant to the foregoing sentences of this
Section 11.02. In the event this Agreement is terminated by the
Directing Holder pursuant to this Section 11.02, the Directing Holder
shall pay the Company a termination fee in an amount equal to 1% of
the outstanding principal balance of the Mortgage Loans as of the
date of such termination.
13. A new Section 12.12 (Intended Third Party Beneficiaries) is added to
the SWSA to read as follows:
Section 12.12 Intended Third Party Beneficiaries.
----------------------------------
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer and the Directing Holder receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer and
the Directing Holder as if they were parties to this Agreement, and
the Master Servicer and the Directing Holder shall have the same
rights and remedies to enforce the provisions of this Agreement as if
they were parties to this Agreement. The Servicer shall only take
direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed
by this Agreement. Notwithstanding the foregoing, all rights and
obligations of the Master Servicer hereunder (other than the right to
indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
