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)
July 7, 1998
STRUCTURED ASSET SECURITIES CORPORATION (as Depositor under the Trust
Agreement, dated as of June 1, 1998, providing for the issuance of
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1998-6)
Structured Asset Securities Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 333-47499 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 Structured Asset Securities
Corporation Mortgage Pass-Through Certificates on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"),
by a Registration Statement on Form S-3 (Registration File No. 333-47499) (the
"Registration Statement"). Pursuant to the Registration Statement, the
Registrant issued $132,556,100 in aggregate principal amount of Class A1, Class
A2, Class AX1, Class B1, Class B2, Class B3 and Class R, Certificates of its
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 1998-6 on July 7, 1998. This Current Report on Form 8-K is being filed
to satisfy an undertaking, contained in the definitive Prospectus dated March
18, 1998, as supplemented by the Prospectus Supplement dated July 3, 1998 (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 June 1, 1998, among
Structured Asset Securities Corporation, as depositor (the "Depositor"),
Norwest Bank Minnesota, National Association, as master servicer and First
Union National Bank, as trustee (the "Trustee"). The "Certificates" consist of
the following classes: Class A1, Class A2, Class AX1, Class AX2, Class B1,
Class B2, Class B3, Class B4, Class B5, Class B6 and Class R. The Certificates
evidence all the beneficial ownership interest in a trust fund (the "Trust
Fund") that consists primarily of a pool of adjustable rate, fully amortizing,
conventional, first lien residential mortgage loans (the "Mortgage Loans") with
an aggregate outstanding principal balance of $142,534,738 as of June 1, 1998,
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 July 3, 1998, between Structured Asset
Securities Corporation and Lehman Brothers Inc.
4.1 Trust Agreement, dated as of June 1, 1998, among 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 June 1,
1998, between Lehman Capital, A Division of Lehman Brothers Holdings
Inc., as Seller, and Structured Asset Securities Corporation, as
Purchaser.
99.2 Special Servicing Agreement, dated as of June 1, 1998, between Lehman
Capital, A Division of Lehman Brothers Holdings Inc., and Ocwen
Federal Bank FSB, as special servicer.
99.3* Servicing Agreement, dated as of December 1, 1997, between Lehman
Capital, A Division of Lehman Brothers Holdings Inc., and Ocwen
Federal Bank FSB, as special servicer.
99.4 Servicing Agreement, dated as of June 1, 1998, between Lehman
Capital, A Division of Lehman Brothers Holdings Inc., and Aurora Loan
Services Inc., as servicer.
99.5* Flow Servicing Agreement, dated as of September 1, 1997, between
Lehman Capital, A Division of Lehman Brothers Holdings Inc., and
Aurora Loan Services Inc., as servicer.
99.6 Servicing Agreement, dated as of June 1, 1998, between Lehman
Capital, A Division of Lehman Brothers Holdings Inc., and Option One
Mortgage Corporation, as servicer.
99.7* Seller's Warranties and Servicing Agreement, dated as of September
30, 1997, between Lehman Capital, A Division of Lehman Brothers
Holdings Inc., and Option One Mortgage Corporation, as servicer.
* Incorporated by reference to the Depositor's Current Report on Form
8-K dated March 30, 1998, filed with the Securities and Exchange
Commission on April 14, 1998 (File No. 333-47499).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /S/ Joseph Kelly
Name: Joseph Kelly
Title: Authorized Signatory
Dated: July 7, 1998
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
1.1 Terms Agreement, dated July 3, 1998, between
Structured Asset Securities Corporation and
Lehman Brothers Inc.
4.1 Trust Agreement, dated as of June 1, 1998,
among 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 June 1, 1998, between Lehman
Capital, A Division of Lehman Brothers
Holdings Inc., as Seller, and Structured
Asset Securities Corporation, as Purchaser.
99.2 Special Servicing Agreement, dated as of
June 1, 1998, between Lehman Capital, A
Division of Lehman Brothers Holdings Inc.,
and Ocwen Federal Bank FSB, as special
servicer.
99.3* Servicing Agreement, dated as of December 1,
1997, between Lehman Capital, A Division of
Lehman Brothers Holdings Inc., and Ocwen
Federal Bank FSB, as special servicer.
99.4 Servicing Agreement, dated as of June 1,
1998, between Lehman Capital, A Division of
Lehman Brothers Holdings Inc., and Aurora
Loan Services Inc., as servicer.
99.5* Flow Servicing Agreement, dated as of
September 1, 1997, between Lehman Capital, A
Division of Lehman Brothers Holdings Inc.,
and Aurora Loan Services Inc., as servicer.
99.6 Servicing Agreement, dated as of June 1,
1998, between Lehman Capital, A Division of
Lehman Brothers Holdings Inc., and Option
One Mortgage Corporation, as servicer.
99.7* Seller's Warranties and Servicing Agreement,
dated as of September 30, 1997, between
Lehman Capital, A Division of Lehman
Brothers Holdings Inc., and Option One
Mortgage Corporation, as servicer.
* Incorporated by reference to the Depositor's Current Report on Form
8-K dated March 30, 1998, filed with the Securities and Exchange
Commission on April 14, 1998 (File No. 333-47499).
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-6
TERMS AGREEMENT
Dated: July 3, 1998
To: Structured Asset Securities Corporation, as Depositor under the Trust
Agreement dated as of June 1, 1998 (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 1998-6.
Terms of the Series 1998-6 Certificates: Structured Asset Securities
Corporation, Series 1998-6 Mortgage Pass-Through Certificates, Class A1, Class
A2, Class AX1, Class AX2, Class B1, Class B2, Class B3, Class B4, Class B5,
Class B6 and Class R (the "Certificates") will evidence, in the aggregate, the
entire beneficial ownership interest in a trust fund (the "Trust Fund"). The
primary assets of the Trust Fund consist of a pool of adjustable rate,
conventional, first lien residential mortgage loans (the "Mortgage Loans").
Only the Class A1, Class A2, Class AX1, Class B1, Class B2, Class B3 and Class
R Certificates (the "Offered Certificates") are being sold pursuant to the
terms hereof.
Registration Statement: File Number 333-47499.
Certificate Ratings: It is a condition of Closing that at the Closing Date the
Class A1 and Class A2 Certificates that they be rated "AAA" by Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. ("S&P");
that the Class AX1 Certificates be rated "AAAr" by S&P; that the Class B1
Certificates be rated "AA" by S&P; that the Class B2 Certificates be rated "A"
by S&P; and that the Class B3 Certificates be rated "BBB" by S&P.
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: June 1, 1998.
Closing Date: 10:00 A.M., New York time, on or about July 7, 1998. On the
Closing Date, the Depositor will deliver the Offered Certificates to the
Underwriter against payment therefor for the account of the Underwriter.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Depositor and the Underwriter in accordance with its terms.
LEHMAN BROTHERS INC.
By: __________________________________
Name: Joseph Kelly
Title: Vice President
Accepted:
STRUCTURED ASSET SECURITIES
CORPORATION
By: ______________________________________
Name: Jack Desens
Title: Senior Vice President
<PAGE>
Schedule 1
<TABLE>
<CAPTION>
Initial Certificate Certificate Purchase
Principal Interest Price
Class Amount(1) Rate Percentage
<S> <C> <C> <C>
Class A1 $112,727,000 6.50% 100.15410%
Class A2 2,003,000 6.50 95.61403%
Class AX1 (2) (2) 9.56250%
Class B1 8,552,000 6.50 98.83776%
Class B2 5,701,000 6.50 97.61682%
Class B3 3,563,000 6.50 94.65450%
Class R 100 6.50 100.0000%
- --------------------------------
</TABLE>
(1) Approximate.
(2) The Class AX1 Certificates will have no Certificate Principal Amount
and will accrue interest on a calculated aggregate Notional Amount
described in the Prospectus Supplement. Interest will accrue on the
applicable Notional Amount at a per annum rate as described in the
Prospectus Supplement.
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 June 1, 1998
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-6
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................3
Section 1.02. Calculations Respecting Mortgage Loans.....................26
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance
of Mortgage Loans.........................................27
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund..............................29
Section 2.03. Representations and Warranties of the Depositor............31
Section 2.04. Discovery of Breach........................................32
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.....32
Section 2.06. Grant Clause...............................................33
Section 2.07. Purchase of Defaulted Mortgage Loans.......................33
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates...........................................34
Section 3.02. Registration...............................................34
Section 3.03. Transfer and Exchange of Certificates......................35
Section 3.04. Cancellation of Certificates...............................37
Section 3.05. Replacement of Certificates................................37
Section 3.06. Persons Deemed Owners......................................38
Section 3.07. Temporary Certificates.....................................38
Section 3.08. Appointment of Paying Agent................................38
Section 3.09. Book-Entry Certificates....................................39
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account.........................................40
Section 4.02. Application of Funds in the Collection Account.............42
Section 4.03. Reports to Certificateholders..............................44
Section 4.04. Certificate Account........................................46
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally....................................47
Section 5.02. Distributions from the Certificate Account.................48
Section 5.03. Allocation of Realized Losses..............................52
Section 5.04. Advances by Master Servicer and Trustee....................54
Section 5.05. Compensating Interest Payments.............................55
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee..........................................55
Section 6.02. Certain Matters Affecting the Trustee......................57
Section 6.03. Trustee Not Liable for Certificates or Mortgage Loans......57
Section 6.04. Trustee May Own Certificates...............................58
Section 6.05. Eligibility Requirements for Trustee.......................58
Section 6.06. Resignation and Removal of Trustee.........................58
Section 6.07. Successor Trustee..........................................59
Section 6.08. Merger or Consolidation of Trustee.........................59
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.................................................59
Section 6.10. Authenticating Agents......................................61
Section 6.11. Indemnification of Trustee.................................62
Section 6.12. Fees and Expenses of Trustee...............................62
Section 6.13. Collection of Monies.......................................62
Section 6.14. Events of Default; Trustee To Act;
Appointment of Successor..................................63
Section 6.15. Additional Remedies of Trustee Upon Event of Default.......66
Section 6.16. Waiver of Defaults.........................................66
Section 6.17. Notification to Holders....................................67
Section 6.18. Directions by Certificateholders and Duties of
Trustee During Event of Default...........................67
Section 6.19. Action Upon Certain Failures of the Master
Servicer and Upon Event of Default........................67
Section 6.20. Limitation of Liability....................................67
Section 6.21. Trustee May Enforce Claims Without
Possession of Certificates................................67
Section 6.22. Suits for Enforcement......................................68
Section 6.23. Waiver of Bond Requirement.................................68
Section 6.24. Waiver of Inventory, Accounting and
Appraisal Requirement.....................................68
ARTICLE VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans.........................68
Section 7.02. Procedure Upon Termination of Trust Fund...................69
Section 7.03. Additional Trust Fund Termination Requirements.............70
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders............................70
Section 8.02. Access to List of Holders..................................71
Section 8.03. Acts of Holders of Certificates............................72
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.............................73
Section 9.02. Master Servicer Fidelity Bond and Master
Servicer Errors and Omissions
Insurance Policy..........................................73
Section 9.03. Master Servicer's Financial Statements and Related
Information..............................................73
Section 9.04. Power to Act; Procedures..................................74
Section 9.05. Servicing Agreements Between the Master Servicer
and Servicers; Enforcement of
Servicers' Obligations....................................75
Section 9.06. Collection of Taxes, Assessments and Similar Items........76
Section 9.07. Termination of Servicing Agreements; Successor
Servicers................................................76
Section 9.08. Master Servicer Liable for Enforcement....................77
Section 9.09. No Contractual Relationship Between Servicers
and Trustee or Depositor.................................77
Section 9.10. Assumption of Servicing Agreement by Trustee..............77
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements..............78
Section 9.12. Release of Mortgage Files.................................78
Section 9.13. Documents, Records and Funds in Possession of
Master Servicer To Be Held for
Trustee..................................................79
Section 9.14. Representations and Warranties of the Master Servicer.....80
Section 9.15. Closing Certificate and Opinion...........................82
Section 9.16. Standard Hazard and Flood Insurance Policies..............82
Section 9.17. Presentment of Claims and Collection of Proceeds..........83
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies....83
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents...................................83
Section 9.20. Realization Upon Defaulted Mortgage Loans.................84
Section 9.21. Compensation to the Master Servicer.......................84
Section 9.22. REO Property..............................................84
Section 9.23. Preparation of Tax Returns and Other Reports..............85
Section 9.24. Reports to the Trustee....................................86
Section 9.25. Annual Officer's Certificate as to Compliance.............86
Section 9.26. Annual Independent Accountants' Servicing Report..........87
Section 9.27. Merger or Consolidation...................................87
Section 9.28. Resignation of Master Servicer............................88
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer.................................................88
Section 9.30. Limitation on Liability of the Master Servicer
and Others...............................................88
Section 9.31. Indemnification; Third-Party Claims.......................89
ARTICLE X
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.....................................89
Section 10.02 Prohibited Transactions and Activities...................91
Section 10.03 Indemnification with Respect to Certain Taxes and
Loss of REMIC Status....................................91
Section 10.04 REO Property.............................................92
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment..................92
Section 11.02 Entire Agreement.........................................92
Section 11.03 Amendment................................................93
Section 11.04 Voting Rights............................................94
Section 11.05 Provision of Information.................................94
Section 11.06 Governing Law............................................94
Section 11.07 Notices..................................................94
Section 11.08 Severability of Provisions...............................95
Section 11.09 Indulgences; No Waivers..................................95
Section 11.10 Headings Not To Affect Interpretation....................95
Section 11.11 Benefits of Agreement....................................95
Section 11.12 Special Notices to the Rating Agency.....................95
Section 11.13 Counterparts.............................................96
Section 11.14 Transfer of Servicing....................................96
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit E-1 Special Servicing Compensation Agreement
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Schedule A Mortgage Loan Schedule
Schedule B Principal Amount Schedules
This TRUST AGREEMENT, dated as of June 1, 1998 (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 with its main office in Charlotte, North
Carolina, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Lehman Capital, A
Division of Lehman Brothers Holdings Inc. (the "Seller"), and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trust Fund, as consideration
for its transfer to the Trust Fund of the Mortgage Loans 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.
The following table sets forth the Class designation, Certificate
Interest Rate, initial Class Certificate Principal Amount and minimum
denomination for each Class of Certificates comprising the interests in the
Trust Fund created hereunder.
Certificate Interest Initial Certificate Minimum
Class Designation Rate Principal Amount Denominations
Class A1 6.50% $112,737,000.00 $100,000
Class A2 6.50 2,003,000.00 100,000
Class AX1 (1) (1) (1)
Class AX2 0.25 (2) (2)
Class B1 6.50 8,552,000.00 100,000
Class B2 6.50 5,701,000.00 100,000
Class B3 6.50 3,563,000.00 250,000
Class B4 6.50 4,917,000.00 250,000
Class B5 6.50 2,422,000.00 250,000
Class B6 6.50 2,639,638.10 250,000
Class R 6.50 100.00 100
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(1) The Class AX1 Certificates will have no Certificate Principal Amount
and will accrue interest on a Notional Amount equal, as to any
Distribution Date, to the aggregate Scheduled Principal Balance of the
Mortgage Loans as of the first day of the related Interest Accrual
Period. The Aggregate Notional Amount for the Class AX1 Certificates
for the initial Interest Accrual Period is $142,534,738.10. The Class
AX1 Certificates will be interest-only Certificates; accordingly, they
will not be entitled to distributions of principal. Interest will
accrue on the applicable Notional Amount with respect to each
Distribution Date at a per annum rate equal to the weighted average (by
Scheduled Principal Balance of the Mortgage Loans) of the Net Mortgage
of the Mortgage Loans as of the first day of the calendar month
immediately preceding such Distribution Date minus 6.75%. The
Certificate Interest Rate for the Class AX1 Certificates for the first
Interest Accrual Period is 3.3074%. The Class AX1 Certificates will be
issued in book-entry form in minimum Percentage Interests of 10%.
(2) The Class AX2 Certificates will have no Certificate Principal Amount
and will accrue interest at the Certificate Interest Rate set forth
above on a Notional Amount equal, as to any Distribution Date, to the
aggregate Scheduled Principal Balance off the Mortgage Loans as of the
first day of the related Interest Accrual Period. The Aggregate
Notional Amount of the Class AX2 Certificates for the initial Interest
Accrual Period is $142,534,738.10. The Class AX2 Certificates will be
interest-only Certificates; accordingly, they will not be entitled to
distributions of principal. The Class AX2 Certificates will be issued
in certificated form in a denomination equal to a 100% Percentage
Interest.
As of the Cut-off Date, the Mortgage Loans had an aggregate
Scheduled Principal Balance of $142,534,738.10.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to the Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: Any Class A1 Certificate and Class
A2 Certificate.
Accretion Termination Date: The first Distribution Date following
the Credit Support Depletion Date.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x)
any amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: Any Class A2 Certificate.
Accrual Component: None.
Accrued Certificate Interest: As to any Class of Certificates and
any Distribution Date, the product of the Certificate Interest Rate for such
Class of Certificates (or Aggregate Notional Amount) of such Class of
Certificates immediately preceding such Distribution Date as reduced by (i)
such Class's pro rata share of the interest portion of any Excess Losses for
such date and, after the Credit Support Depletion Date, any Realized Losses
for such date, and (ii) such Class's pro rata share of any Relief Act
Reduction for such date.
Additional Collateral: None.
Adjustable Rate Mortgage Loan: None.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the applicable Servicing Fee) on
one or more Mortgage Loans that were due on the Due Date in the related Due
Period and not received as of the close of business on the related
Determination Date, required to be made by or on behalf of the Master Servicer
and any Servicer (or by the Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Master Servicing Compensation: As to any Distribution
Date, the sum of (x) the aggregate of the Master Servicing Fees payable to the
Master Servicer in respect of such Distribution Date and (y) all income and
gain realized from the investment of funds in the Collection Account during
the period from and including the Deposit Date in the calendar month
immediately preceding the month in which such Distribution Date occurs, to but
excluding the Deposit Date relating to such Distribution Date.
Aggregate Notional Amount: With respect to the Class AX1 and Class
AX2 Certificates, the aggregate notional amount described in the Preliminary
Statement hereto.
Aggregate Principal Balance: The aggregate of the Scheduled
Principal Balances for all Mortgage Loans at any date of determination.
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.
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.
Aurora: Aurora Loan Services Inc., as Servicer under the applicable
Servicing Agreement.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Distribution Amount: On any Distribution Date, the sum of
the following amounts:
(1) ______ the total amount of all cash received by the
Master Servicer through the Remittance Date and deposited by the
Master Servicer by the Deposit Date for such Distribution Date on
the Mortgage Loans (including proceeds of any Insurance Policy and
any other credit support relating to such Mortgage Loans), plus all
Advances made by the Master Servicer or any Servicer (or the
Trustee) for such Distribution Date, any Compensating Interest
Payment for such date and any amounts paid by any Servicer in
respect of Prepayment Interest Shortfalls for such date, but not
including:
(a) all amounts distributed pursuant to Section 5.02
on prior Distribution Dates;
(b) ______ all Scheduled Payments of principal and
interest collected but due on a date subsequent to the
related Due Period;
(c) ______ all Principal Prepayments received by the
applicable Servicer after the applicable Prepayment Period
(together with any interest payments received with such
prepayments to the extent that they represent the payment
of interest accrued on the related Mortgage Loans for the
period subsequent to the applicable Prepayment Period);
(d) ______ any other unscheduled collection,
including Net Liquidation Proceeds and Insurance Proceeds,
received by the Master Servicer after the applicable
Prepayment Period; and
(e) _______ all fees and amounts due or reimbursable
to the Master Servicer or any Servicer pursuant to the
terms of this Agreement or the applicable Servicing
Agreement; and
(f) any Prepayment Penalty Amounts.
(2) ______ any other payment made by any Servicer, the
Seller, the Depositor, the Directing Holder or any other Person with
respect to such Distribution Date (including the Purchase Price with
respect to any Mortgage Loan repurchased by the Seller, the
Depositor or any other Person).
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: As to each Mortgage Pool, the
Distribution Date on which the related Bankruptcy Loss Limit has been reduced
to zero (or less than zero).
Bankruptcy Loss Limit: As of the Cut-off Date, $100,000, which
amount shall be reduced from time to time by the amount of Bankruptcy Losses
allocated to the Certificates.
Bankruptcy Losses: Any Realized Losses (as reported by the applicable
Servicer to the Master Servicer) arising from a proceeding under the United
States Bankruptcy Code or any other similar state law or other proceeding with
respect to the Mortgagor of or Mortgaged Property under a Mortgage Loan,
including, without limitation, any such loss arising from (a) the difference
between (i) the principal amount that would have been due under the original
scheduled payments of principal and interest due on the related Mortgage Loan
and (ii) the value established in the relevant court with respect to such
Mortgaged Property, including without limitation a Deficient Valuation, or (b) a
Debt Service Reduction.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a
Cooperative Property.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class A1, Class A2, Class
AX1, Class B1, Class B2 and Class B3 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 State of Maryland, or (iii) with respect to any Remittance Date or any
Servicer reporting date, the States specified in the definition of "Business
Day" in the applicable Servicing Agreement, are authorized or obligated by law
or executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Interest Rate: With respect to each Class of
Certificates, 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 a Notional Certificate, at the time of determination, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount
set forth on the face of such Certificate (plus, in the case of any Negative
Amortization Certificate, any Deferred Interest allocated thereto on previous
Distribution Dates, and plus, in the case of any Accrual Certificate, its
Percentage Interest of any related Accrual Amount for each previous
Distribution Date), less the amount of all principal distributions previously
made with respect to such Certificate, all Realized Losses allocated to such
Certificate, and, in the case of a Subordinate Certificate, any Subordinate
Certificate Writedown Amount allocated to such Certificate. For purposes of
Article V hereof, unless specifically provided to the contrary, Certificate
Principal Amounts shall be determined as of the close of business of the
immediately preceding Distribution Date, after giving effect to all
distributions made on such date. Notional Certificates are issued without
Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Class: All Certificates bearing the same class designation.
Class A Certificate: Any Class A1, Class A2, Class AX1 and Class AX2
Certificate.
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4,
Class B5 or Class B6 Certificate.
Class Certificate Principal Amount: With respect to a Class of
Certificates other than any Class of Notional Certificates, the aggregate of
the Certificate Principal Amounts of all Certificates of such Class at the
date of determination.
Class Percentage: For each Class of Certificates, for each
Distribution Date, the percentage obtained by dividing the Class Certificate
Principal Amount of such Class immediately prior to such Distribution Date by
the aggregate Certificate Principal Amount of all Certificates immediately
prior to such date.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: July 7, 1998.
Code: The Internal Revenue Code of 1986, as amended, and as it may
be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by
the Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to any Distribution
Date, an amount equal to the excess of (x) the aggregate of any Prepayment
Interest Shortfalls with respect to such Distribution Date over (y) the
aggregate of any amounts required to be paid by the Servicers in respect of
such shortfalls but not paid; provided, that such amount, if paid by the
Master Servicer, shall not exceed the Aggregate Master Servicing Compensation
that would be payable to the Master Servicer in respect of such Distribution
Date without giving effect to any Compensating Interest Payment.
Component: None.
Component Certificate: None.
Component Interest Rate: None.
Component Principal Amount: Not applicable.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Loan: None.
Cooperative Loan Documents: Not applicable.
Cooperative Property: Not applicable.
Cooperative Shares: Not applicable.
Cooperative Unit: Not applicable.
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 230 South Tryon
Street NC1179, Charlotte, North Carolina 28288, Attention: Structured Finance.
Credit Support Depletion Date: The Distribution Date on which,
giving effect to all distributions on such date, the aggregate Certificate
Principal Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Percentages of
all Classes of Certificates that rank lower in priority than such Class.
Custodial Agreement: The custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: The custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto.
Cut-off Date: June 1, 1998.
Cut-off Date Aggregate Principal Balance: With respect to the
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance for all such Mortgage Loans as of the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date as a result of any proceeding under Bankruptcy law or any
similar proceeding.
Deferred Interest: With respect to any Class of Negative
Amortization Certificates and any Distribution Date, the lesser of (x) the
applicable Interest Distribution Amount for such date (without giving effect
to any Deferred Interest) and (y) the aggregate Mortgage Loan Negative
Amortization, if any, for the related Due Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the 18th
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the next succeeding Business Day.
Directing Holder: As defined in the Special Servicing Agreement.
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 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 July
1998.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which
such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt or deposit
obligations of such holding company or depository institution, as the case may
be) have been rated by each Rating Agency in its highest short-term rating
category, or (iii) a segregated trust account or accounts (which shall be a
"special deposit account") maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its
fiduciary capacity, in a manner acceptable to the Trustee and the Rating
Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations
or securities:
(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
Principal Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) _______ commercial paper (including both
noninterest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than
180 days after the date of issuance thereof) rated by each Rating
Agency in its highest short-term 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;
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Subordinate Certificate.
Escrow Account: Any account established and maintained by the
applicable Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of
the then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof,
in excess of the then-applicable Fraud Loss Limit, and any Special Hazard
Loss, or portion thereof, in excess of the then-applicable Special Hazard Loss
Limit.
Extended Special Servicing Fee: With respect to any Distribution
Date, as defined in the Special Serving Compensation Agreement.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: July 25, 2028.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Mortgage Loan sustained by reason
of a default arising from fraud, dishonesty or misrepresentation in connection
with the related Mortgage Loan, as reported by the applicable Servicer to the
Master Servicer.
Fraud Loss Limit: As of the Cut-off Date, $4,276,042, which amount
shall be reduced (i) on the first anniversary of the Cut-off Date, to an
amount equal to the excess of 2% of the Cut-off Date Aggregate Principal
Balance of the Mortgage Loans over the cumulative amount of Fraud Losses
allocated to the Certificates, (ii) on the second, third, and fourth
anniversaries of the Cut-off Date, to an amount equal to the excess of 1% of
the Cut-off Date Aggregate Principal Balance of the Mortgage Loans over the
cumulative amount of Fraud Losses allocated to the Certificates and (iii) on
the fifth anniversary of the Cut-off Date, to zero.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Master
Servicer, any Servicer or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to
effect any such consent has been obtained, except that, in determining whether
the Trustee shall be protected in relying upon any such consent, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be disregarded. The Trustee may request and conclusively rely on
certifications by the Depositor, the Master Servicer and any Servicer in
determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, earthquake insurance policy or title
insurance policy relating to the Mortgage Loans or the Mortgaged Properties,
to be in effect as of the Closing Date or thereafter during the term of this
Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Interest Accrual Period: With respect to any Distribution Date and
any Class of Certificates, the one-month period beginning immediately
following the end of the preceding Interest Accrual Period (or from the
Cut-off Date, in the case of the first Interest Accrual Period) and ending on
the last day of the month preceding the month in which such Distribution Date
occurs.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates and
any Distribution Date, any Accrued Certificate Interest not distributed (or
added to principal) other than any Net Prepayment Interest Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: April 25, 2030.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which
the Master Servicer or the applicable Servicer has determined that all amounts
that it expects to recover on behalf of the Trust Fund from or on account of
such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master
Servicer or a Servicer in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable Primary Mortgage
Insurance Policy, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
amounts remaining in the related Escrow Account.
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.
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
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Due Period. The Master Servicing Fee for any Mortgage Loan shall be
payable in respect of any Distribution Date solely from the interest portion
of the Scheduled Payment or other payment or recovery with respect to such
Mortgage Loan.
Master Servicing Fee Rate: 0.0125% per annum.
Material Defect: As defined in Section 2.02(c) hereof.
Mortgage: A mortgage, deed of trust or other instrument encumbering
a fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences
of indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The agreement, dated as of June 1,
1998, for the sale of the Mortgage Loans by Lehman Brothers Holdings Inc.,
doing business as Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time pursuant to Section 2.02.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: The fee simple interest in real property,
together with the improvements thereto including any exterior improvements to
be completed within 120 days of disbursement of the related Mortgage Loan
proceeds, securing the indebtedness of the Mortgagor under the related
Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of unreimbursed expenses incurred
in connection with liquidation or foreclosure and unreimbursed Advances,
Servicing Advances or Servicing Fees, 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 and the Trustee Fee Rate.
Net Prepayment Interest Shortfall: With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls for such date
over the sum of any amounts paid by the Servicers with respect to such
shortfalls and any amount that is required to be paid by the Master Servicer
in respect of such shortfalls pursuant to this Agreement.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Aggregate
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class AX1 or Class AX2 Certificate.
Notional Component: None.
Notional Component Amount: None.
Offering Document: Either of the Prospectus or the private placement
memorandum dated July 3, 1998 relating to the Class B4, Class B5 and Class B6
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or a Servicer but which
must be Independent outside counsel with respect to any such opinion of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the taxation, or the federal income tax status,
of each REMIC.
Option One: Option One Mortgage Corporation, as Servicer under the
applicable Servicing Agreement.
Original Credit Support Percentage: For a Class of Subordinate
Certificates, the Credit Support Percentage for such Class of Certificates on
the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Class AX1 or Class AX2 Certificate,
the Percentage Interest evidenced thereby shall equal the initial Certificate
Principal Amount thereof divided by the initial Class Certificate Principal
Amount of all Certificates of the same Class. With respect to any Class AX1 or
Class AX2 Certificate, the Percentage Interest evidenced thereby shall be as
specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Lehman Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set
forth in 29 C.F.R. 2510.3-101.
Premium Mortgage Loan: None.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Master Servicing Fee Rate
and the 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 Penalty Amounts: With respect to any Distribution Date,
all premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period and reported by Servicers to the Master Servicers.
Prepayment Period: The applicable period specified in the applicable
Servicing Agreement (whether or not specifically defined as a "Prepayment
Period") during which amounts required to be remitted by the related Servicer
in respect of Mortgage Loan prepayments on the applicable Servicer Remittance
Date are received by such Servicer.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Not applicable.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Prospectus: The prospectus supplement dated July 3, 1998, together
with the accompanying prospectus dated March 18, 1998, relating to the Class
A1, Class A2, Class AX1, Class B1, Class B2, Class B3 and Class R
Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to Article II of this Agreement or the Special Servicing 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 Mortgage Rate, from the
date as to which interest was last paid to (but not including) the Due Date
immediately preceding the related Distribution Date and (c) any unreimbursed
Advances or Servicing Advances by the Master Servicer or any Servicer (or the
Trustee, if applicable). The Master Servicer or the applicable Servicer (or
the Trustee, if applicable) shall be reimbursed from the Purchase Price for
any Mortgage Loan or related REO Property for any Advances made with respect
to such Mortgage Loan that are reimbursable to the Master Servicer or such
Servicer under this Agreement or the related Servicing Agreement, as well as
any unreimbursed Servicing Advances and accrued and unpaid Master Servicing
Fees or Servicing Fees, as applicable.
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) _______ be an obligation of an insurance company or
other corporation whose long-term debt is rated by each Rating
Agency in one of its two highest rating categories or, if such
insurance company has no long-term debt, whose claims paying ability
is rated by each Rating Agency in one of its two highest rating
categories, and whose short-term debt is rated by each Rating Agency
in its highest rating category;
(b) _______ provide that the Trustee may exercise all of
the rights under such contract or surety bond without the necessity
of taking any action by any other Person;
(c) _______ provide that if at any time the then current
credit standing of the obligor under such guaranteed investment
contract is such that continued investment pursuant to such contract
of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without
penalty and be entitled to the return of all funds previously
invested thereunder, together with accrued interest thereon at the
interest rate provided under such contract to the date of delivery
of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder: and
(e) _______ provide that the funds reinvested thereunder
and accrued interest thereon be returnable to the Collection Account
or the Certificate Account, as the case may be, not later than the
Business Day prior to any Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate net of the Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Trustee for deposit into the Certificate Account, and shall be treated as
a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the Net Mortgage Rate of the related Deleted Mortgage Loan; (iii) 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) has a Loan-to-Value Ratio as of the date of such
substitution not greater than that of the related Deleted Mortgage Loan; (v)
will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) is not a Cooperative Loan unless the related Deleted Mortgage
Loan was a Cooperative Loan; (vii) if applicable, has the same index as and a
margin not less than that of the related Deleted Mortgage Loan and (viii) has
not been delinquent for a period of more than 30 days more than twice in the
twelve months immediately preceding such date of substitution. In the event
that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the Scheduled Principal Balance referred to
in clause (i) above shall be determined on a loan-by-loan basis, (b) the rate
referred to in clause (ii) above shall be determined on a loan-by-loan basis
and (c) the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis, provided that the final
scheduled maturity date of any Qualifying Substitute Mortgage Loan shall not
exceed the Final Scheduled Distribution Date of any Class of Certificates.
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify such qualification in writing to the Trustee.
Rating Agency: S&P.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Master Servicer or Special Servicer
with respect to such Mortgage Loan (other than Advances of principal and
interest) including expenses of liquidation, and (b) with respect to each
Mortgage Loan that has become the subject of a Deficient Valuation, the
difference between the unpaid principal balance of such Mortgage Loan
immediately prior to such Deficient Valuation and the unpaid principal balance
of such Mortgage Loan as reduced by the Deficient Valuation. In determining
whether a Realized Loss is a Realized Loss of interest or principal,
Liquidation Proceeds shall be allocated, first, to payment of expenses related
to such Liquidated Mortgage Loan, then to accrued unpaid interest and finally
to reduce the principal balance of the Mortgage Loan.
Recognition Agreement: Not applicable.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month immediately preceding the month
in which such Distribution Date occurs (or in the case of the first
Distribution Date, the Closing Date).
Redemption Certificate: None.
Reference Banks: None.
Reimbursement Amount: As defined in Section 5.02.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Solders' and Sailors' Civil Relief Act of 1940,
as amended, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than interest accrued thereon
for the applicable one-month period at the Mortgage Rate without giving effect
to such reduction.
REMIC: The 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 86OG of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: The day in each month on which each Servicer is
required to remit payments to the account maintained by the Master Servicer,
as specified in the related Servicing Agreement, which in the case of each
Servicer is the 18th day of each month (or if such 18th day is not a Business
Day, the 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.
Reserve Fund: The Eligible Account maintained with the Trustee
pursuant to Section 5.02(d).
Reserve Fund Requirement: $30,000.
Reserve Interest Rate: Not applicable. Residual Certificate: Any
Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department, or any other officer of the Trustee to whom a matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
Restricted Certificate: Any Class AX2, Class B4, Class B5 or Class
B6 Certificate.
Rounding Account: Not applicable.
S&P: Standard & Poor's Rating Services, a division of the
McGraw-Hill Companies, Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Due Period shall be deemed
collectively to constitute the Scheduled Payment due on such Mortgage Loan in
such Due Period.
Scheduled Principal Amount: As to any Distribution Date, an amount
equal to the amount described in clause (i)(b) of the definition of Senior
Principal Distribution Amount.
Scheduled Principal Balance: (i) With respect to any Mortgage Loan
as of any Distribution Date, the principal balance of such Mortgage Loan at
the close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Due Period, whether or not received from the
Mortgagor or advanced by the Master Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Net
Liquidation Proceeds, Insurance Proceeds and condemnation proceeds, in each
case to the extent identified and applied prior to or during the Prepayment
Period) and (ii) with respect to any REO Property as of any Distribution Date,
the Scheduled Principal Balance of the related Mortgage Loan on the Due Date
immediately preceding the date of acquisition of such REO Property by the
Trustee (reduced by any amount applied as a reduction of principal on the
Mortgage Loan).
Security Agreement: Not applicable.
Seller: Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
or any successor in interest.
Senior Certificate: Any Class A1, Class A2, Class AX1, Class AX2 or
Class R Certificate.
Senior Percentage: With respect to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the aggregate
Certificate Principal Amount of the Senior Certificates immediately prior to
such date and the denominator of which is the sum of the aggregate Certificate
Principal Amount of all Classes of Certificates immediately prior to such
date.
Senior Prepayment Percentage: With respect to any Distribution Date
occurring during the five years beginning on the first Distribution Date,
100%. The Senior Prepayment Percentage for any Distribution Date occurring on
or after the fifth anniversary of the first Distribution Date will be the
related Senior Percentage plus the following percentage of the related
Subordinate Percentage for such Distribution Date: for any Distribution Date
in the first year thereafter, 70%; for any Distribution Date in the second
year thereafter, 60%; for any Distribution Date in the third year thereafter,
40%; for any Distribution Date in the fourth year thereafter, 20%; and for any
subsequent Distribution Date, 0%; provided, however, that if on any of the
foregoing Distribution Dates the Senior Percentage exceeds the initial Senior
Percentage, the Senior Prepayment Percentage for such Distribution Date will
once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage below the level in effect for the most recent prior period set
forth in the paragraph above shall be effective on any Distribution Date if,
as of the first Distribution Date as to which any such decrease applies, (i)
the average outstanding principal balance on such Distribution Date and for
the preceding five Distribution Dates of all Mortgage Loans that were
delinquent 60 days or more (including for this purpose any Mortgage Loans in
foreclosure and the Scheduled Payments that would have been due on Mortgage
Loans with respect to which the related Mortgaged Property has been acquired
by the Trust Fund if the related Mortgage Loan had remained in existence) is
greater than or equal to 50% of the aggregate of the Certificate Principal
Amount of the Subordinate Certificates immediately prior to such Distribution
Date or (ii) cumulative Realized Losses with respect to the Mortgage Loans in
the related Mortgage Pool exceed (a) with respect to the Distribution Date on
the fifth anniversary of the first Distribution Date, 30% of the aggregate of
the related Original Subordinate Principal Amount, (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the related Original Subordinate Principal Amount, (c) with respect to the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the related Original Subordinate Principal Amount, (d) with respect to
the Distribution Date on the eighth anniversary of the first Distribution
Date, 45% of the related Original Subordinate Principal Amount, and (e) with
respect to the Distribution Date on the ninth anniversary of the first
Distribution Date, 50% of the related Original Subordinate Principal Amount.
Senior Principal Distribution Amount: For any Distribution Date, the
sum of the following amounts:
(i) _______ the product of (a) the Senior Percentage for
such date and (b) the principal portion of each Scheduled Payment
(without giving effect to any Debt Service Reduction occurring prior
to the Bankruptcy Coverage Termination Date), other than any Balloon
Payment, on a Mortgage Loan during the related Due Period;
(ii) ______ the product of (a) the Senior Prepayment
Percentage for such date and (b) each of the following amounts: (1)
each Principal Prepayment on the Mortgage Loans collected during the
applicable Prepayment Period, (2) each other unscheduled collection,
including Insurance Proceeds and Liquidation Proceeds (other than
with respect to any Mortgage Loan that was finally liquidated during
the applicable Prepayment Period), representing or allocable to
recoveries of principal received during the applicable Prepayment
Period, (3) the principal portion of all proceeds of the purchase of
any Mortgage Loan (or, in the case of a permitted substitution,
amounts representing a principal adjustment) actually received by
the Trustee with respect to the applicable Prepayment Period, and
(4) the principal portion of each Balloon Payment received during
the related Due Period;
(iii) _____ with respect to unscheduled recoveries
allocable to principal of any Mortgage Loan that was finally
liquidated during the applicable Prepayment Period, the lesser of
(a) the related net Liquidation Proceeds allocable to principal and
(b) the product of the Senior Prepayment Percentage for such date
and the Scheduled Principal Balance of such Mortgage Loan at the
time of liquidation; and
(iv) ______ any amounts described in clauses (i) through
(iii) for any previous Distribution Date that remain unpaid.
Servicer: Any Servicer, including the Special Servicer, that has
entered into any of the Servicing Agreements attached as Exhibit E hereto, or
any successor in interest.
Servicing Advances: Expenditures incurred by the Servicer in
connection with the liquidation or foreclosure of a Mortgage Loan which are
eligible for reimbursement under the related Servicing Agreement.
Servicing Agreement: Each Servicing Agreement, including the Special
Servicing Agreement, among a Servicer and the Seller, dated as of June 1,
1998, attached hereto as Exhibit E.
Servicing Fee: The Servicing Fee or, in the case of the Special
Servicer, the Base Servicing Fee specified in the applicable Servicing
Agreement or Special Servicing Agreement.
Servicing Fee Rate: With respect to any Servicer, as specified in
the applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a Mortgaged
Property which is caused by or results from any cause, exclusive of any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property and any loss caused by or
resulting from (i) normal wear and tear, (ii) conversion or other dishonest
act on the part of the Trustee, the Master Servicer, any Servicer or any of
their agents or employees, or (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or a part thereof
ensues, or (y) any Realized Loss arising from or related to the presence or
suspected presence of hazardous wastes, or hazardous substances on a Mortgaged
Property unless such loss is covered by a hazard policy or flood insurance
policy required to be maintained in respect of such Mortgaged Property, in any
case, as reported by the applicable Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $1,425,347, which
amounts shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the Mortgage Loans; (ii) twice the
Scheduled Principal Balance of the Mortgage Loan in the related Mortgage Pool
having the highest Scheduled Principal Balance, and (iii) the aggregate
Scheduled Principal Balances of the Mortgage Loans secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate Scheduled Principal Balance of Mortgage Loans of any such
postal zip code area and (b) the Special Hazard Loss Limit as of the Closing
Date less the amount, if any, of Special Hazard Losses incurred with respect
to Mortgage Loans in the related Mortgage Pool since the Closing Date.
Special Servicer: Ocwen Federal Bank FSB, as Special Servicer under
the Special Servicing Agreement.
Special Servicing Agreement: The Special Servicing Agreement, dated
June 1, 1998, between the Seller and the Special Servicer attached hereto as
Exhibit E.
Special Servicing Compensation Agreement: The Agreement dated June
1, 1998 between the Seller and the Special Servicer attached as Exhibit E-1
hereto.
Special Servicing Fee: With respect to any Distribution Date, as
defined in the Special Servicing Compensation Agreement.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution
Date, the amount by which (i) the sum of the Class Certificate Principal
Amounts of all the Certificates (after giving effect to the distribution of
principal and the application of Realized Losses in reduction of the
Certificate Principal Amounts of the Certificates on such Distribution Date)
exceeds (ii) the aggregate Scheduled Principal Balance of the Mortgage Loans
on the first day of the month of such Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates, the percentage obtained by dividing
the Class Certificate Principal Amount of such Class immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Subordinate Certificates immediately prior to such date.
Subordinate Percentage: With respect to any Distribution Date, the
difference between 100% and the Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to any Distribution
Date, the difference between 100% and the Senior Prepayment Percentage for
such Distribution Date.
Subordinate Principal Distribution Amount: For any Distribution
Date, the sum of the following:
(i) _______ the product of (a) the Subordinate Percentage
for such date and (b) the principal portion of each Scheduled
Payment (without giving effect to any Debt Service Reduction
occurring prior to the Bankruptcy Coverage Termination Date), other
than any Balloon Payment, on a Mortgage Loan due during the related
Due Period;
(ii) ______ the product of (a) the Subordinate Prepayment
Percentage for such date and (b) each of the following amounts: (1)
each Principal Prepayment on the Mortgage Loans collected during the
applicable Prepayment Period, (2) each other unscheduled collection,
including Insurance Proceeds and net Liquidation Proceeds (other
than with respect to any Mortgage Loan that was finally liquidated
during the applicable Prepayment Period), representing or allocable
to recoveries of principal received during the applicable Prepayment
Period), (3) the principal portion of all proceeds of the purchase
of any Mortgage Loan (or, in the case of a permitted substitution,
amounts representing a principal adjustment) actually received by
the Trustee with respect to the applicable Prepayment Period, and
(4) the principal portion of each Balloon Payment received during
the related Due Period;
(iii) _____ with respect to unscheduled recoveries
allocable to principal of any Mortgage Loan that was finally
liquidated during the applicable Prepayment Period, the related net
Liquidation Proceeds allocable to principal, less any related amount
paid pursuant to subsection (iii) of the definition of Senior
Principal Distribution Amount for the related Certificate Group; and
(iv) ______ any amounts described in clauses (i) through
(iii) for any previous Distribution Date that remain unpaid;
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
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, such amounts as shall from time
to time be held in the Collection Account, the Certificate Account, the
Reserve Fund and any Escrow Account, 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, 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 Mortgage Loans as of the first day of the related Due Period.
Trustee Fee Rate: 0.0055% per annum.
Unscheduled Principal Amount: As to any Distribution Date, the sum
of the amounts described in clauses (ii)(b) and (iii) (without regard to the
reference in clause (iii) to the "Senior Prepayment Percentage") of the
definition of Senior Principal Distribution Amount.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
98% of all Voting Interests shall be allocated to the Certificates other than
the Class AX1 and AX2 Certificates, 1% of all Voting Interests shall be
allocated to the Class AX1 Certificates and 1% of all Voting Interests shall
be allocated to the Class AX2 Certificates. Voting Interests allocated to the
Class AX1 and Class AX2 Certificates shall be allocated among the Certificates
of such Class in proportion to their Percentage Interests. Voting Interests
shall be allocated among the other Classes of Certificates (and among the
Certificates within each such Class) in proportion to their Class Certificate
Principal Amounts (or Certificate Principal Amounts).
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current
information as to the terms of the Mortgage Loans and reports of payments
received from the Mortgagor on such Mortgage Loans and payments to be made to
the Trustee as supplied to the Trustee by the Master Servicer. The Trustee
shall not be required to recompute, verify or recalculate the information
supplied to it by the Master Servicer.
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 Section
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 hereof and all amounts from time to time credited to
and the proceeds of any such Escrow Account, any REO Property and the proceeds
thereof, the Depositor's rights under any Insurance Policies related to the
Mortgage Loans, and the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any Additional Collateral and any proceeds of the foregoing, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund.
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 the Seller
under the Servicing Agreements and the Special Servicing Compensation
Agreement to the extent assigned under the Mortgage Loan Sale Agreement, and
delegates its obligations thereunder. The Trustee hereby accepts such
assignment and delegation, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Sale Agreement as if, for such purpose, it
were the Depositor. The foregoing sale, transfer, assignment, set over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller, or
any other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth herein.
(b) ______ In connection with such transfer and assignment, the
Depositor does hereby deliver to, and deposit with, or cause to be delivered
to and deposited with, the Trustee, and/or any custodian acting on the
Trustee's behalf, if applicable, the following documents or instruments with
respect to each Mortgage Loan (each a "Mortgage File") so transferred and
assigned:
(i) with respect to each Mortgage Loan, the original
Mortgage Note endorsed without recourse in proper form to the order
of the Trustee, or in blank (in each case, with all necessary
intervening endorsements as applicable);
(ii) the original of any guarantee executed in connection
with the Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon. If, in connection with any Mortgage
Loan, the Depositor cannot deliver the Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee
(or its custodian), in the case of a delay due to recording, a true
copy of such Mortgage, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has
been forwarded to the public recording office, or, in the case of a
Mortgage that has been lost, a copy thereof (certified as provided
for under the laws of the appropriate jurisdiction) and a written
Opinion of Counsel acceptable to the Trustee and the Depositor that
an original recorded Mortgage is not required to enforce the
Trustee's interest in the Mortgage Loan;
(iv) The original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or,
as to any assumption, modification or substitution agreement which
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or
substitution agreement, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or its custodian) is a true copy
and that the original of such agreement has been forwarded to the
public recording office;
(v) with respect to any Mortgage Loan, the original
Assignment of Mortgage for each Mortgage Loan;
(vi) If applicable, such original intervening assignments
of the Mortgage, notice of transfer or equivalent instrument (each,
an "Intervening Assignment"), as may be necessary to show a complete
chain of assignment from the originator, or, in the case of an
Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening
Assignment is not required to enforce the Trustee's interest in the
Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to any Mortgage Loan, the original
mortgagee title insurance policy or attorney's opinion of title and
abstract of title; and
(ix) the original of any security agreement, chattel
mortgage or equivalent executed in connection with the Mortgage or
as to any security agreement, chattel mortgage or their equivalent
that cannot be delivered on or prior to the Closing Date because of
a delay caused by the public recording office where such document
has been delivered for recordation, a photocopy of such document,
pending delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered
to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
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 shall be recorded; provided, however,
that such Assignments need not be recorded if, in the Opinion of Counsel
(which must be Independent counsel) acceptable to the Trustee and the Rating
Agency, 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, the Trustee, at the expense of the
Depositor, shall cause to be properly recorded in each public recording office
where the Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee under clause (b)(viii) above and is not so delivered,
the Depositor will provide a copy of such Title Insurance Policy to the
Trustee 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 an Officer's
Certificate which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in the applicable Collection Account pursuant to Section 4.01 have been so
deposited. All original documents that are not delivered to the Trustee shall
be held by the Master Servicer or the applicable Servicer in trust for the
benefit of the Trustee and the Certificateholders.
Section 2.02 Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
hereof, acknowledges receipt of the Mortgage Files pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule, subject to review thereof by the
Trustee, or by the applicable Custodian on behalf of the Trustee, under this
Section 2.02. The Trustee, or the applicable Custodian on behalf of the
Trustee, will execute and deliver to the Depositor and the Master Servicer on
the Closing Date an Initial Certification in the form annexed hereto as
Exhibit B-1.
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and shall deliver to the Depositor, the Master Servicer and
the Special Servicer an Interim Certification in the form annexed hereto as
Exhibit B-2 to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan prepaid in full or any
Mortgage Loan specifically identified in such certification as not covered by
such certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Trustee, or the applicable
Custodian on behalf of the Trustee, shall make sure that the documents are
executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other
papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. Neither the
Trustee nor any Custodian shall have any responsibility for verifying the
genuineness or the legal effectiveness of or authority for any signatures of
or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certificate delivered to the Depositor or the Master Servicer (and to
the Trustee). Within 90 days of its receipt of such notice, the Depositor
shall be required to cure such Material Defect (and, in such event, the
Depositor shall provide the Trustee with an Officer's Certificate confirming
that such cure has been effected). If the Depositor does not so cure such
Material Defect, it shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, repurchase the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be
deemed to be attributable to the failure of the Depositor to cure a Material
Defect if, as determined by the Depositor, upon mutual agreement acting in
good faith, absent such Material Defect, such loss would not have been
incurred. Within the two year period following the Closing Date, the Depositor
may, in lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02,
substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
applicable Custodian to give the notice contemplated herein within 45 days
after the Closing Date shall not affect or relieve the Depositor of its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02 or
any other Section of this Agreement requiring the repurchase of Mortgage Loans
from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Depositor, the Master Servicer and
the Special Servicer a Final Certification substantially in the form annexed
hereto as Exhibit B-3 evidencing the completeness of the Mortgage Files in its
possession or control.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
Section 2.03. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, and the Master Servicer, as of the Closing Date or such
other date as is specified, that:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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.
Section 2.04. Discovery of Breach. It is understood and agreed that
the representations and warranties set forth in Section 2.03 and the
representations and warranties of the Seller set forth in the Mortgage Loan
Sale Agreement and assigned to the Trustee by the Depositor hereunder survive
delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage
Loan to the Trustee and shall continue throughout the term of this Agreement.
Upon discovery by either the Depositor, the Master Servicer 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 such breach with respect to the
representations and warranties, the Depositor or the Seller, 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.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage
Loans. (a) With respect to any Mortgage Loan repurchased by the Depositor
pursuant to this Article II or by the Seller pursuant to the Mortgage Loan
Sale 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, shall release or cause to be released
and reassign to the Depositor or the Seller, 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 the Depositor or
its designee or assignee title to any Deleted Mortgage Loan released pursuant
hereto, free and clear of all security interests, liens and other encumbrances
created by this Agreement, which instruments shall be prepared by the Trustee
(or its custodian), and the Trustee shall have no further responsibility with
respect to the Mortgage File relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor must
deliver to the Trustee (or its custodian) the Mortgage File for the Qualifying
Substitute Mortgage Loan containing the documents set forth in Section 2.01(b)
along with a written certification certifying as to the delivery of such
Mortgage File and containing the granting language set forth in Section
2.01(a); and (ii) the Depositor will be deemed to have made the
representations and warranties set forth in Section 2.03(f). As soon as
practicable after the delivery of any Qualifying Substitute Mortgage Loan
hereunder, the Trustee shall cause the Assignment of Mortgage with respect to
such Qualifying Substitute Mortgage Loan to be recorded if required pursuant
to the first sentence of Section 2.01(c).
(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.
Section 2.07. Purchase of Defaulted Mortgage Loans. (a) The
Directing Holder shall have the right to purchase defaulted Mortgage Loans
from the Trust Fund as and to the extent provided in the Special Servicing
Agreement. Such right shall be transferable to and exercisable by subsequent
Holders of the Class of Subordinate Certificates then possessing the rights of
the Directing Holder only upon satisfaction of the conditions set forth in the
Special Servicing Agreement.
(b) In addition to the purchase option provided under subsection (a)
above, the Special Servicer and the Directing Holder shall have the right to
purchase Severely Delinquent Loans (as defined in the Special Servicing
Agreement) from the Trust Fund as and to the extent provided in the Special
Servicing Agreement. Such right of such Directing Holder shall be transferable
to and exercisable by subsequent Holders of the Class of Subordinate
Certificates then possessing the rights of the Directing Holder only upon
satisfaction of the conditions set forth in the Special Servicing Agreement.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Principal Amount, as applicable, or in the Percentage Interests, specified
herein. Each Class of Book-Entry Certificates other than the Class AX1
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 AX1 Certificates will be issued
in minimum Percentage Interests of 10%. Each Class AX2 Certificate and each
Residual Certificate will be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of
Certificates other than the Class AX2 Certificates and the Residual
Certificates may be issued in any denomination in excess of the minimum
denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02 Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule
144(a)(1) under the 1933 Act) of the Depositor or the Placement
Agent or (y) being made to a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act of 1933, as amended
(the "Act") by a transferor who has provided the Trustee with a
certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is being made
to an "accredited investor" under Rule 501(a)(1), (2), (3) or (7)
under the Act by a transferor who furnishes to the Trustee a letter
of the transferee substantially in the form of Exhibit G hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate in the form
of a Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Depositor to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Trustee will not require such
certificate or opinion in the event that, as a result of a change of law or
otherwise, counsel satisfactory to the Trustee has rendered an opinion to the
effect that the purchase and holding of an ERISA-Restricted Certificate by a
Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee or the Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for the initial issuance of the
ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of
any Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to a Disqualified Organization.
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 nor an agent or nominee
acting on behalf of a Disqualified Organization (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. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization or an
agent or nominee acting on behalf of a Disqualified Organization, such
registration shall be deemed to be of no legal force or effect whatsoever and
such Disqualified Organization (or such agent or nominee) 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 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). The Trustee shall be entitled to recover from any Holder of
a Residual Certificate that was a Disqualified Organization (or an agent or
nominee thereof) at the time it became a Holder or any subsequent time it
became a Disqualified Organization all payments made on such Residual
Certificate at and after either such times (and all costs and expenses,
including but not limited to attorneys' fees, incurred in connection
therewith). Any payment (not including any such costs and expenses) so
recovered by the Trustee shall be paid and delivered to the last preceding
Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this Section
3.03(f), the last preceding Permitted Transferee shall be restored to all rights
as Holder thereof retroactive to the date of such registration of transfer of
such Residual Certificate. The Trustee shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered upon
the books of the Certificate Registrar as the owner of such Certificate for
the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and
for all other purposes whatsoever, and neither the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of any of them
shall be affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent 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 Certificate Principal
Amount of a Class of Book-Entry Certificates identified as such to the Trustee
by an Officer's Certificate from the Clearing Agency advise the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Owners of a Class of
Book-Entry Certificates, the Trustee shall notify or cause the Certificate
Registrar to notify the Clearing Agency to effect notification to all
Certificate Owners, through the Clearing Agency, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Transferor nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable, with
respect to such Definitive Certificates and the Trustee shall recognize the
holders of the Definitive Certificates as Certificateholders hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the
Master Servicer shall open and shall thereafter maintain an account held in
trust (the "Collection Account"), entitled "Norwest Bank Minnesota, National
Association, as Master Servicer, in trust for the benefit of the Holders of
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 1998-6." 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 the Deposit Date, the entire amount on deposit in the Collection Account
(subject to permitted withdrawals set forth in Section 4.02), including any
Prepayment Penalty Amounts on deposit in the Collection Account, but excluding
other amounts not included in the Available Distribution Amount for such
Distribution Date pursuant to clauses (a) through (e) of paragraph (1) of the
definition thereof, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The
Master Servicer, at its option, may choose to make daily remittances from the
Collection Account to the Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including
Principal Prepayments, late collections and Prepayment Penalty
Amounts, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans (other than payments due prior to the Cut-off Date), net of
the Servicing Fee and Master Servicing Fee with respect to each such
Mortgage Loan, but only to the extent of the amount permitted to be
withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with
respect to a Mortgage Loan not otherwise specified in this paragraph
(d), including all Net Liquidation Proceeds with respect to the
Mortgage Loans and REO Property, and all amounts received in
connection with the operation of any REO Property, net of any unpaid
Servicing Fees and Master Servicing Fees with respect to such
Mortgage Loans (but only to the extent of the amount permitted to be
withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21);
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any
Servicer pursuant to Section 5.04; and
(vi) all proceeds of any Mortgage Loan repurchased by the
Depositor, the Seller, the Master Servicer or any other Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than the earlier of (a) the Deposit Date (except
that if such Eligible Investment is an obligation of the Trustee or the Paying
Agent, if other than the Trustee, and such Collection Account is maintained
with the Trustee or the Paying Agent, if other than the Trustee, then such
Eligible Investment shall mature not later than such applicable Distribution
Date) or (b) the day on which the funds in such Collection Account are
required to be remitted to the Trustee for deposit into the Certificate
Account, and any such Eligible Investment shall not be sold or disposed of
prior to its maturity. All such Eligible Investments shall be made in the name
of the Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time,
subject to Section 5.05, and shall not be part of the Trust Fund. The amount
of any losses incurred in respect of any such investments shall be deposited
in such Collection Account by the Master Servicer out of its own funds,
without any right of reimbursement therefor, immediately as realized. The
foregoing requirements for deposit in the Collection Account are exclusive, it
being understood and agreed that, without limiting the generality of the
foregoing, payments of interest on funds in the Collection Account and
payments in the nature of late payment charges or assumption fees need not be
deposited by the Master Servicer in the Collection Account and may be retained
by the Master Servicer or the applicable Servicer as additional servicing
compensation. If the Master Servicer deposits in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Collection Account.
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; the Master
Servicer's right to reimburse itself pursuant to this subclause (i)
is limited to amounts received on or in respect of particular
Mortgage Loans (including, for this purpose, Liquidation Proceeds
and amounts representing Insurance Proceeds with respect to the
property subject to the related Mortgage) which represent late
recoveries (net of the applicable Servicing Fee and the Master
Servicing Fee) of payments of principal or interest respecting which
any such Advance was made, it being understood, in the case of any
such reimbursement, that the Master Servicer's or Servicer's right
thereto shall be prior to the rights of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing
Advances made by it or by such Servicer that it determines in good
faith will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the
particular Mortgage Loan as to which such Servicing Advance was made
or from Liquidation Proceeds or Insurance Proceeds with respect to
such Mortgage Loan, it being understood, in the case of any such
reimbursement, that such Master Servicer's or Servicer's right
thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by it pursuant to
Sections 9.20 and 9.22(a) in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation
Proceeds after such reimbursement exceed the unpaid principal
balance of the related Mortgage Loan, together with accrued and
unpaid interest thereon at the applicable Mortgage Rate less the
applicable Servicing Fee and the Master Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its
receipt of such Liquidation Proceeds, to pay to itself out of such
excess the amount of any unpaid assumption fees, late payment
charges or other Mortgagor charges on the related Mortgage Loan and
to retain any excess remaining thereafter as additional servicing
compensation, it being understood, in the case of any such
reimbursement or payment, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the
Certificateholders;
(iv) in the event it has elected not to pay itself the
Master Servicing Fee out of any Mortgagor payment on account of
interest or other recovery with respect to a particular Mortgage
Loan prior to the deposit of such Mortgagor payment or recovery in
the Collection Account, to pay to itself the Master Servicing Fee
for each Distribution Date and any unpaid Master Servicing Fees for
prior Distribution Dates, as reduced pursuant to Section 5.05, from
any Mortgagor payment as to interest or such other recovery with
respect to that Mortgage Loan, as is permitted by this Agreement;
(v) to reimburse itself or any Servicer for expenses
incurred by and recoverable by or reimbursable to it or such
Servicer pursuant to Section 9.04, 9.06, 9.16 or 9.22(a), and to
reimburse itself for any expenses reimbursable to it pursuant to
Section 10.01(c);
(vi) to pay to the Depositor, the Seller, the Special
Servicer or the Directing Holder, as applicable, with respect to
each Mortgage Loan or REO Property acquired in respect thereof that
has been repurchased by the Depositor 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) subject to Section 5.04, to pay to itself income
earned on the investment of funds deposited in the Collection
Account;
(viii) to make payments to the Trustee for deposit into
the Certificate Account in the amounts and in the manner provided
for in Section 4.04;
(ix) to make 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 Servicing Agreement.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's or Servicer's entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The Master Servicer shall therefore keep and maintain a separate accounting
for each Mortgage Loan it master services for the purpose of justifying any
withdrawal from the Collection Account it maintains pursuant to such subclause
(i), (iii), (iv) and (vi).
Section 4.03. Reports to Certificateholders. (a) On each
Distribution Date, the Trustee shall deliver or cause to be delivered by first
class mail to each Certificateholder a written report setting forth the
following information, which information the Master Servicer will determine
(on the basis of Mortgage Loan level 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,
other than any Class of Notional Certificates, allocable to
principal on the Mortgage Loans, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to
scheduled principal payments and unscheduled payments in the nature
of principal;
(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, including any Accrual Amount
added to the Class Certificate Principal Amount of any Class of
Accrual Certificates;
(iii) the amount, if any, of any distribution to the
Holders of the Class AX2 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
Scheduled Principal Balance of the Mortgage Loans as of the close of
business on the last day of the related Due Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
(vi) the Class Certificate Principal Amount (or Aggregate
Notional Amount) of each Class of Certificates, to the extent
applicable, as of such Distribution Date after giving effect to
payments allocated to principal reported under clause (i) above (and
to the addition of any Accrual Amount in the case of any Class of
Accrual Certificates), separately identifying any reduction of any
of the foregoing Certificate Principal Amounts due to Realized
Losses:
(vii) any Realized Losses realized with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in
the aggregate since the Cut-off Date, stating separately the amount
of Special Hazard Losses, Fraud Losses and Bankruptcy Losses and the
aggregate amount of such Realized Losses, and the remaining Special
Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing
Fees and Trustee Fee paid during the Due Period to which such
distribution relates;
(ix) the number and aggregate Scheduled Principal Balance
of Mortgage Loans, as reported to the Trustee by the Master
Servicer, (a) remaining outstanding (b) delinquent one month, (c)
delinquent two months, (d) delinquent three or more months, and (e)
as to which foreclosure proceedings have been commenced as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(x) the deemed principal balance of each REO Property as
of the close of business on the last Business Day of the calendar
month immediately preceding the month in which such Distribution
Date occurs;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the principal balance
of such Mortgage Loan and the number of such Mortgage Loans as of
the close of business on the Distribution Date in such preceding
month;
(xii) with respect to substitution of Mortgage Loans in
the preceding calendar month, the Scheduled Principal Balance of
each Deleted Mortgage Loan, and of each Qualifying Substitute
Mortgage Loan;
(xiii) the aggregate outstanding Interest Shortfalls and
Net Prepayment Interest Shortfalls, if any, for each Class of
Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the Certificate Interest Rate applicable to the
Class AX1 Certificates such Distribution Date with respect to each
Class of Certificates;
(xv) 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);
(xvi) any other "loan-level" information for any Mortgage
Loans that are delinquent three or more months and any REO Property
held by the Trust that is reported by the Master Servicer to the
Trustee;
(xvii) the amount of any withdrawal from the Reserve Fund
distributed to the Holders of Class AX2 Certificates and the amount
on deposit in the Reserve Fund after any such distribution; and
(xviii) the amount, if any, of Prepayment Penalty Amounts
distributed to the Class R Certificates.
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 each Servicer, and
the Master Servicer shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data.
On each Distribution Date, the Trustee shall also deliver or cause
to be delivered by first class mail to the Depositor a copy of the
above-described written report, to the following address: Mortgage Finance
Group, Lehman Brothers Inc., Three World Financial Center, 200 Vesey Street,
New York, New York, 10285, Attention: Stanley Labanowski, 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 pay itself any investment income earned with
respect to funds in the Certificate Account invested in Eligible
Investments as set forth in subsection (c) below, and to make
payments to itself and others pursuant to any provision of this
Agreement;
(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account
by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders
pursuant to Article V; and
(v) to clear and terminate the Certificate Account
pursuant to Section 7.02.
(c) The Trustee shall invest, or cause to be invested, funds held in
the Certificate Account in Eligible Investments (which may be obligations of
the Trustee). All such investments must mature no later than the next
Distribution Date, and shall not be sold or disposed of prior to their
maturity. All such Eligible Investments will be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be compensation for the Trustee and shall be
subject to its withdrawal on order from time to time. The amount of any losses
incurred in respect of any such investments shall be paid by the Trustee for
deposit in the Certificate Account out of its own funds, without any right of
reimbursement therefor, immediately as realized.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least three Business Days prior to the related
Distribution Date to any Certificateholder owning an aggregate initial
Certificate Principal Amount of at least $2,500,000, or, in the case of a
Class AX1 Certificate, a Percentage Interest of at least 50%, and, in the case
of the Class AX2 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,
the Residual Certificates 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 Certificates will be made only upon presentation and surrender of
such Certificate at the Corporate Trust Office of the Trustee or at the office
of the New York Presenting Agent. If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On
each Distribution Date the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Available
Distribution Amount and shall distribute such amount to the Holders of record
of each Class of Certificates in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution
Date;
(ii) from the Available Distribution Amount, to each Class
of Senior Certificates, the Accrued Certificate Interest thereon for
such Distribution Date, as reduced by such Class's pro rata share
(determined on the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest Shortfalls for
such Distribution Date; provided, however, that Accrued Certificate
Interest on the Class A2 Certificates for such Distribution Date
shall be applied in the manner set forth in Section 5.02(f),
provided, further, that any shortfall in available amounts shall be
allocated among such Classes in proportion to the amount of Accrued
Certificate Interest (as so reduced) that would otherwise be
distributable thereon (or added to the Certificate Principal Amount
thereof);
(iii) from the remaining Available Distribution Amount, to
each Class of Senior Certificates, any related Interest Shortfall
for such Distribution Date; provided, however, that any Interest
Shortfall for the Class A2 Certificates for such Distribution Date
shall be applied in the manner provided by Section 5.02(f),
provided, further, that any shortfall in available amounts shall be
allocated among such Classes in proportion to the Interest Shortfall
for each such Class on such Distribution Date;
(iv) from the remaining Available Distribution Amount, to
the Senior Certificates (other than the Class AX1 and Class AX2
Certificates), in an amount up to the Senior Principal Distribution
Amount, in the following order of priority:
(A) to the Class A1 Certificates, in reduction of the
Class Certificate Principal Amount thereof, until the
Class Certificate Principal Amount thereof has been
reduced to zero;
(B) to the Class A2 Certificates, in reduction of the
Class Certificate Principal Amount thereof, until the
Class Certificate Principal Amount thereof has been
reduced to zero; and (C) to the Class R Certificate, in
reduction of the Class Certificate Principal Amount
thereof, until the Class Certificate Principal Amount
thereof has been reduced to zero;
(v) from the remaining
Available Distribution Amount to the Subordinated
Certificates, as follows:
(A) to the Class B1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for the related Mortgage Pool for such
Distribution Date;
(B) ______ to the Class B1 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(C) to the Class B1 Certificates, in reduction of the
Class Certificate Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Certificate
Principal Balance thereof has been reduced to zero;
(D) to the Class B2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for the related Mortgage Pool for such
Distribution Date;
(E) to the Class B2 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Class Certificate
Principal Amount thereof has been reduced to zero;
(G) to the Class B3 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(H) to the Class B3 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Class Certificate
Principal Amount thereof has been reduced to zero;
(J) to the Class B4 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(K) to the Class B4 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Certificate
Principal Balance thereof has been reduced to zero;
(M) to the Class B5 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(N) to the Class B5 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Class Principal
Balance thereof has been reduced to zero;
(P) to the Class B6 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date,
as reduced by such Class's pro rata share (determined on
the basis of Accrued Certificate Interest otherwise
distributable thereon) of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(Q) to the Class B6 Certificates, any Interest
Shortfall for such Class on such Distribution Date; and
(R) to the Class B6 Certificates, in reduction of the
Component Principal Amount thereof, such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Certificate
Principal Balance thereof has been reduced to zero.
(b) If on any Distribution Date the Class Certificate Principal
Amounts of each Class of the Certificates have each been reduced to zero, the
Available Distribution Amount remaining after distribution of interest to the
Senior Certificates on such date shall be distributed among the Classes of
Senior Certificates pro rata, on the basis of their respective Class
Certificate Principal Amounts immediately prior to such Distribution Date,
regardless of the priorities and amounts set forth in Sections 5.02(a)(iv)(A),
(B) and (C).
(c) (i) If on any Distribution Date the Credit Support Percentage
for the Class B1 Certificates is less than the Original Credit Support
Percentage for such Class, then, notwithstanding anything to the contrary in
Section 5.02(a), no distribution of amounts described in clauses (ii) and
(iii) of the definition of Subordinate Principal Distribution Amount will be
made in respect of the Class B2, Class B3, Class B4, Class B5 or Class B6
Certificates on such Distribution Date. (ii) If on any Distribution Date the
Credit Support Percentage for the Class B2 Certificates is less than the
Original Credit Support Percentage for such Component, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B3, Class B4, Class
B5 or Class B6 Certificates on such Distribution Date. (iii) If on any
Distribution Date the Credit Support Percentage for the Class B3 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the Class
B4, Class B5 or Class B6 Certificates on such Distribution Date. (iv) If on
any Distribution Date the Credit Support Percentage for the Class B4
Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount will be made in respect of the
Class B5 or Class B6 Certificates on such Distribution Date. (v) If on any
Distribution Date the Credit Support Percentage for the Class B5 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the Class
B6 Certificates on such Distribution Date.
Any amount not distributed in respect of any Class on any Distribution
Date pursuant to the immediately preceding paragraph will be allocated among the
remaining Subordinate Classes in proportion to their respective Certificate
Principal Amounts.
(d) Notwithstanding Section 5.02(a), on each Distribution Date,
amounts otherwise distributable to the Class AX2 Certificates pursuant to
Sections 5.02(a)(ii) and (iii) shall be withheld by the Trustee and deposited
into an Eligible Account established by the Depositor and maintained by the
Trustee entitled "Structured Asset Securities Corporation Series 1998-6
Reserve Fund" (the "Reserve Fund"). On each Distribution Date, amounts on
deposit in the Reserve Fund shall be withdrawn by the Trustee and applied to
pay the Special Servicer the Special Servicing Fee and Extended Special
Servicing Fee due and unpaid with respect to such Distribution Date or any
previous Distribution Date. On any Distribution Date, amounts on deposit in
the Reserve Fund (after payment of any due and unpaid Special Servicing Fees
and Extended Special Servicing Fees) in excess of the Reserve Fund Requirement
shall be released to the Class AX2 Certificateholder and thereafter shall not
be subject to return by the Class AX2 Certificateholder or otherwise pledged
to the Trust Fund for the payment of fees to the Special Servicer or for any
other purpose.
The Reserve Fund will not be part of the REMIC and, for all federal
income tax purposes, will be beneficially owned by the Class AX2
Certificateholder. Amounts on deposit in the Reserve Fund may be invested by
the Trustee in Eligible Investments (which may be obligations of the Trustee)
at the written direction of the Class AX2 Certificateholder, provided such
investments 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 Class AX2 Certificateholder. All income and
gain from any such investment shall belong to the Class AX2 Certificateholder
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
Class AX2 Certificateholder for deposit into the Reserve Fund out of its own
funds, without any right of reimbursement therefor, immediately as realized.
(e) On each Distribution Date, the Trustee shall distribute to the
holder of the Class R Certificate any remaining Available Distribution Amount
for such Distribution Date after application of all amounts described in
paragraph (a) of this Section 5.02. Any distributions made to the Class R
Certificateholder pursuant to this paragraph (e) shall not reduce the Class
Certificate Principal Amount of the Class R Certificate. In addition, on each
Distribution Date, the Trustee shall distribute to the Holder of the Class R
Certificate any Prepayment Penalty Amounts received during the related
Prepayment Period.
(f) On each Distribution Date through the Credit Support Depletion
Date, the amounts allocable to the Class A2 Certificates on such date pursuant
to clauses (a)(ii) and (a)(iii) of this Section 5.02 shall not be
distributable as interest thereon but shall instead be (i) added to the Class
Certificate Principal Amount thereof and distributed to the following Classes
of Certificates, before any distributions are made pursuant to clause (a)(iv)
of this Section 5.02, in the following order of priority:
first, to the Class A1 Certificates, in reduction of the Class
Certificate Principal Amount thereof, until the Class Certificate Principal
Amount thereof has been reduced to zero.
second, to the Class A2 Certificates, in reduction of the Class
Certificate Principal Amount thereof, until the Class Certificate Principal
Amount thereof has been reduced to zero.
On each Distribution Date occurring after the Credit Support
Depletion Date, amounts allocable to the Class A2 Certificates pursuant to
clauses (a)(ii) and (a)(iii) of this Section 5.02 shall be distributable on
such Distribution Date pursuant to such clauses to Holders of the Class A2
Certificates as Accrued Certificate Interest and shall not be added to the
Class Certificate Principal Amount thereof.
Section 5.03. Allocation of Realized Losses. (a) On any Distribution
Date, the principal portion of each Realized Loss (other than any Excess Loss)
in respect of a Mortgage Loan shall be allocated in the following order of
priority:
first, to the Class B6 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to
zero;
second, to the Class B5 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to
zero;
third, to the Class B4 Certificates, until the
Component Principal Amount thereof has been reduced to
zero;
fourth, to the Class B3 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to
zero;
fifth, to the Class B2 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to
zero;
sixth, to the Class B1 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to
zero; and
seventh, to the Classes of Senior Certificates, pro
rata, in accordance with their Class Certificate Principal
Amounts; provided, that any such loss allocated to any
Class of Accrual Certificates shall be allocated (subject
to Section 5.03(c)) on the basis of the lesser of (x) the
Class Certificate Principal Amount thereof immediately
prior to the applicable Distribution Date and (y) the
Class Certificate Principal thereof on the Closing Date
(as reduced by any Realized Losses previously allocated
thereto).
(b) With respect to any Distribution Date, the principal portion of
any Excess Loss in respect of a Mortgage Loan shall be allocated among the
Classes of Certificates, pro rata, based on the respective Class Certificate
Principal Amounts thereof; provided, that any such loss allocated to any Class
of Accrual Certificates (and any Accrual Component) shall be allocated
(subject to Section 5.03(c)) on the basis of the lesser of (x) the Class
Certificate Principal Amount thereof immediately prior to the applicable
Distribution Date and (y) the Class Certificate Principal Amount thereof on
the Closing Date (as reduced by any Realized Losses previously allocated
thereto).
(c) Any Realized Losses allocated to a Class of Certificates
pursuant to Section 5.03(a) or (b) shall be allocated among the Certificates
of such Class in proportion to their respective Certificate Principal Amounts.
Any allocation of Realized Losses pursuant to this paragraph (c) shall be
accomplished by reducing the Certificate Principal Amount of the related
Certificates on the related Distribution Date in accordance with Section
5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution Date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after
giving effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated shall
be entitled to receive, on the Distribution Date in the month following the
month in which such recovery is received, its pro rata share (based on the
Class Certificate Principal Amount thereof) of such recovery, up to the amount
of the portion of such Realized Loss previously allocated to such Class. In
the event that the total amount of such recovery exceeds the amount of
Realized Loss allocated to the outstanding Classes in accordance with the
preceding provisions, each outstanding Class of Certificates shall be entitled
to receive its pro rata share of the amount of such excess, up to the amount
of any unrecovered Realized Loss previously allocated to such Class. Any such
recovery allocated to a Class of Certificates shall not further reduce the
Certificate Principal Amount of such Certificate. Any such amounts not
otherwise allocated to any Class of Certificates, pursuant to this subsection
shall be treated as Principal Prepayments for purposes of this Agreement.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances
shall be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Due Period (other than Balloon Payments) have not been
received, the Master Servicer shall, or cause the applicable Servicer to,
advance such amount, less an amount, if any, 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 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 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 shall, on or before the related Distribution Date,
deposit in the Certificate Account an amount equal to the excess of (a)
Advances required to be made by the Master Servicer or any Servicer that would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer or any Servicer with respect to such
Distribution Date; provided, however, that the Trustee shall be required to
make such Advance only if it is not prohibited by law from doing so and it has
determined that such Advance would be recoverable from amounts to be received
with respect to such Mortgage Loan, including late payments, Liquidation
Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be entitled to
be reimbursed from the Certificate Account for Advances made by it pursuant to
this Section 5.04 as if it were the Master Servicer.
Section 5.05. Compensating Interest Payments. The amount of
the Aggregate Master Servicing Compensation payable to the Master Servicer in
respect of any Distribution Date shall be reduced by the amount of any
Compensating Interest Payment for such Distribution Date, but only to the
extent such Compensating Interest Payment is not actually made by a Servicer
on the applicable Remittance Date. Such amount shall not be treated as an
Advance and shall not be reimbursable to the Master Servicer.
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.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the consent or direction of Holders
of Certificates as provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default (other
than resulting from a failure by the Master Servicer (i) to remit
funds (or to make Advances) or (ii) to furnish information to the
Trustee when required to do so) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office, and such notice references the Holders
of the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it;
(iv) The Trustee shall not be responsible for any act or
omission of the Master Servicer; and
(v) The Trustee shall not be personally liable for any
error of judgement made in good faith by a Responsible Officer of
the Trustee unless it shall be proved that the Trustee was negligent
in ascertaining or investigating the facts related thereto.
(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 pay, out of its own funds, any fees assessed
by the Rating Agency after the Closing Date in connection with maintaining the
ratings of the Certificates.
(g) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Depositor, the Seller or the
Master Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Master Servicer in accordance with the terms of
this Agreement.
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 Certificate Principal
Amount (or Aggregate Notional Amount) of each Class of Certificates;
provided, however, that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee
may require reasonable indemnity against such expense or liability
or payment of such estimated expenses as a condition to proceeding.
The reasonable expense thereof shall be paid by the Holders
requesting such investigation; and
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, which agents or attorneys shall have
any or 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.
Section 6.03. Trustee Not Liable for Certificates or Mortgage Loans.
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.
Section 6.04. Trustee May Own Certificates. The Trustee and any
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust
with the other parties hereto with the same rights it would have if it were
not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee
may at any time resign and be discharged from the trust hereby created by
giving written notice thereof to the Depositor and the Master Servicer. Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee, one copy to the successor trustee 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 Agency of any Class of Certificates with a rating, then the
Depositor may 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 Certificate Principal
Amount (or Aggregate Notional Amount) of each Class of Certificates may at any
time upon 30 days' written notice to the Trustee and to the Depositor remove
the Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee so removed and one copy to
the Master Servicer; the Depositor shall thereupon use its best efforts to
appoint a mutually acceptable successor trustee in accordance with this
Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and
documents and statements related to each Mortgage Files held by it hereunder,
and shall duly assign, transfer, deliver and pay over to the successor trustee
the entire Trust Fund, together with all necessary instruments of transfer and
assignment or other documents properly executed necessary to effect such
transfer and such of the record or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the predecessor trustee shall execute and deliver such other instruments and
do such other things as may reasonably be required to more fully and certainly
vest and confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such appointment such successor trustee
shall be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Master Servicer shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor to the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Certificate Principal Amount (or Aggregate Notional Amount) of each
Class of Certificates shall each have the power from time to time to appoint
one or more Persons to act either as co-trustees jointly with the Trustee, or
as separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside the state where the Trustee has its principal place of business where
such separate trustee or co-trustee is necessary or advisable (or the Trustee
has been advised by the Master Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or
acts are to be performed the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations, including the holding of title to
the Trust Fund or any portion thereof in any such jurisdiction,
shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other
trustee or custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more
than 50% of the Aggregate Voting Interests of the Certificates may
at any time accept the resignation of or remove any separate
trustee, co-trustee or custodian, so appointed by it or them, if
such resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one
or more Authenticating Agents which shall be authorized to act on behalf of
the Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense incurred in connection
with any legal proceeding and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder, including the
costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder,
provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer and the Holders written
notice thereof promptly after the Trustee shall have knowledge
thereof;
(ii) while maintaining control over its own defense,
the Trustee shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 6.11, the Trust Fund shall not be liable for settlement of
any such claim by the Trustee entered into without the prior consent
of the Depositor, which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Fees and Expenses of Trustee. In addition to the
Trustee Fee, the Trustee shall be entitled to receive, and is authorized to
pay to itself the amount of income or gain earned from the investment of funds
in the Certificate Account.
Section 6.13. Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Master Servicer, the Trustee shall request the Master Servicer to make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. Events of Default; Trustee To Act; Appointment
of Successor. (a) The occurrence of any one or more of the following events
shall constitute an "Event of Default"):
(i) Any failure by the Master Servicer to furnish the
Trustee the Mortgage Loan data sufficient to prepare the reports
described in Section 4.03(a) which continues unremedied for a period
of one Business Day after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Trustee
or to such Master Servicer and the Trustee by the Holders of not
less than 25% of the Class Certificate Principal Amount (or
Aggregate Notional Amount) of each Class of Certificates affected
thereby; or
(ii) Any failure on the part of the Master Servicer duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of such Master Servicer
contained in this Agreement which continues unremedied for a period
of 30 days (or 15 days, in the case of a failure to maintain any
Insurance Policy required to be maintained pursuant to this
Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to such
Master Servicer by the Trustee, or to such Master Servicer and the
Trustee by the Holders of not less than 25% of the Class Certificate
Principal Amount (or Aggregate Notional Amount) of each Class of
Certificates affected thereby; or
(iii) A decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer, and
such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days or any Rating Agency reduces or
withdraws or threatens to reduce or withdraw the rating of the
Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to such
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall
dispose of all or substantially all of its assets, or consolidate
with or merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does
not meet the criteria for a successor servicer as specified in
Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section
9.14 hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee, or to the
Master Servicer and the Trustee by the Holders of not less than 25%
of the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the
Master Servicer hereunder or an assignment of this Agreement by the
Master Servicer or a delegation of the rights or duties of the
Master Servicer hereunder shall have occurred in any manner not
otherwise permitted hereunder and without the prior written consent
of the Trustee and Certificateholders holding more than 50% of the
Class Certificate Principal Amount (or Aggregate Notional Amount) of
each Class of Certificates; or
(ix) Any Servicer at any time is not either an FNMA- or
FHLMC- approved Seller/Servicer, and the Master Servicer has not
terminated the rights and obligations of such Servicer under the
applicable Servicing Agreement and replaced such Servicer with an
FNMA- or FHLMC-approved servicer within 30 days of the absence of
such approval; or
(x) Any failure of the Master Servicer to remit to the
Trustee any payment required to be made to the Trustee for the
benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Certificate Principal
Amount (or Aggregate Notional Amount) of each Class of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. If an Event of Default
described in clause (x) of this Section 6.14 shall occur, then, in each and
every case, subject to applicable law, the Trustee, by notice in writing to
the Master Servicer, shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer, and only
in its capacity as Master Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it
to enable the Trustee or its designee to assume the defaulting Master
Servicer's functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated shall bear
all costs of a master servicing transfer, including but not limited to those
of the Trustee reasonably allocable to specific employees and overhead, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master
Servicer, each terminated Master Servicer shall continue to be entitled to
reimbursement to the extent provided in Section 4.02(i), (ii), (iii), (iv),
(v), (vi), (vii), (ix) and (xi) to the extent such reimbursement relates to
the period prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee shall promptly
notify the Rating Agencies of the nature and extent of such Event of Default.
The Trustee shall immediately give written notice to the Master Servicer upon
such Master Servicer's failure to remit funds on the Deposit Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted to the Master Servicer hereunder. The Trustee and such
successor shall take such actions, consistent with this Agreement, as shall be
necessary to effectuate any such succession and may make other arrangements
with respect to the servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee
and any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the master servicing
functions and providing the Trustee and successor master servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer,
as applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering, cash, documents or records to it, (ii)
the failure of the Master Servicer to cooperate as required by this Agreement,
(iii) the failure of the Master Servicer to deliver the Mortgage Loan data to
the Trustee as required by this Agreement or (iv) restrictions imposed by any
regulatory authority having jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate
Voting Interests of Certificateholders may waive any default or Event of
Default by the Master Servicer in the performance of its obligations
hereunder, except that a default in the making of any required deposit to the
Certificate Account that would result in a failure of the Trustee to make any
required payment of principal of or interest on the Certificates may only be
waived with the consent of 100% of the affected Certificateholders. Upon any
such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the
Master Servicer or appointment of a successor to the Master Servicer, in each
case as provided herein, the Trustee shall promptly mail notice thereof by
first class mail to the Certificateholders at their respective addresses
appearing on the Certificate Register. The Trustee shall also, within 45 days
after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to Certificateholders, unless such Event of Default
shall have been cured or waived prior to the issuance of such notice and
within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Certificate Principal Amount (or
Aggregate Notional Amount) of each Class of Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement; provided, however, that the Trustee shall be under no
obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (i) the
conducting or defending of any administrative action or litigation hereunder
or in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal
liability or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer
and Upon Event of Default. In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer.
Section 6.20. Limitation of Liability. The Certificates are executed
by the Trustee, not in its individual capacity but solely as Trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it
by this Agreement. Each of the undertakings and agreements made on the part of
the Trustee in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the
purpose of binding only the Trust.
Section 6.21. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee. Any recovery
of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents
and counsel, be for the ratable benefit or the Certificateholders in respect
of which such judgment has been recovered.
Section 6.22. Suits for Enforcement. In case an Event of Default or
other default by the Master Servicer or the Depositor hereunder shall occur
and be continuing, the Trustee, in its discretion, may proceed to protect and
enforce its rights and the rights of the Holders of Certificates under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this
Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
Section 6.23. Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 6.24. Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder
hereby waives, any requirement of any jurisdiction in which the Trust, or any
part thereof, may be located that the Trustee file any inventory, accounting
or appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans. (a) The respective obligations and
responsibilities of the Trustee and the Master Servicer created hereby (other
than the obligation of the Trustee to make payments to Certificateholders as
set forth in Section 7.02, the obligation of the Master Servicer to make a
final remittance to the Trustee for deposit into the Certificate Account
pursuant to Section 4.01 and the obligations of the Master Servicer to the
Trustee pursuant to Sections 9.10 and 9.14), shall terminate on the earlier of
(i) the final payment or other liquidation of the last Mortgage Loan remaining
in the Trust Fund and the disposition of all REO Property and (ii) the sale of
the property held by the Trust Fund in accordance with Section 7.01(b) 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 after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 10%
of the Cut-off Date Aggregate Principal Balance, the Depositor may 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. The property of the Trust Fund
shall be sold at a price (the "Termination Price") equal to: (i) 100% of the
unpaid principal balance of each Mortgage Loan on the day of such purchase
plus interest accrued thereon at the applicable Mortgage Rate with respect to
any Mortgage Loan to the Due Date in the Due Period immediately preceding the
related Distribution Date to the date of such repurchase 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.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice
of any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
(x) no later than five Business Days after the Trustee has received notice
from the Depositor of its intent to exercise its right to cause the
termination of the Trust Fund pursuant to Section 7.01(b) or (y) upon the
final payment or other liquidation of the last Mortgage Loan or REO Property
in the Trust Fund. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
The Trustee shall give such notice to the Master Servicer and the Certificate
Registrar at the time such notice is given to Holders of the Certificates.
Upon any such termination, the duties of the Certificate Registrar with
respect to the Certificates shall terminate and the Trustee shall terminate,
or request the Master Servicer to terminate, the Collection Account it
maintains, the Certificate Account and any other account or fund maintained
with respect to the Certificates, subject to the Trustee's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
Section 7.03. Additional Trust Fund Termination Requirements. (a)
The Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee seeks (at the request of the Master
Servicer), and subsequently receives, an Opinion of Counsel (at the expense of
the Master Servicer), addressed to the Trustee to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 7.03 will
not (i) result in the imposition of taxes on any REMIC under the REMIC
Provisions or (ii) cause any REMIC established hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the Certificates, the Trustee (upon (x) the sale of
the property of the Trust Fund by the Trustee pursuant to Section
7.01(b) or (y) notification by the Depositor that it intends to
exercise its option to cause the termination of the Trust Fund)
shall adopt a plan of complete liquidation of the Trust Fund on
behalf of each REMIC, meeting the requirements of a qualified
liquidation under the REMIC Provisions;
(ii) The sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after
the time of adoption of such a plan of complete liquidation and
prior to the time of making of the final payment on the
Certificates;
(iii) On the date specified for final payment of the
Certificates, the Trustee shall, after payment of any unreimbursed
Advances, Servicing Advances, Servicing Fees or other fee
compensation of the Special Servicer payable pursuant to the Special
Servicing Compensation Agreement, make final distributions of
principal and interest on the Certificates in accordance with
Section 5.02 and distribute or credit, or cause to be distributed or
credited, to the 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 Certificate Principal Amount (or Aggregate Notional Amount) of
Certificates of each Class shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and no direction inconsistent with such
written request has been given such Trustee during such sixty-day period by
such Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Master Servicer. Such instrument or instruments (as
the action embodies therein and evidenced thereby) are herein sometimes
referred to as an "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agents shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee and Master Servicer, if made in the manner provided in
this Section. Each of the Trustee and Master Servicer shall promptly notify
the other of receipt of any such instrument by it, and shall promptly forward
a copy of such instrument to the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary. (d) Any request,
demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Certificate shall bind every future Holder of the same
Certificate and the Holder of every Certificate issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Master
Servicer in reliance thereon, whether or not notation of such action is made
upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders,
by their purchase and acceptance of the Certificates, appoint Norwest Bank
Minnesota, National Association, as Master Servicer. For and on behalf of the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of the applicable Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy. (a) The Master Servicer, at its
expense, shall maintain in effect a 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 meet the requirements of FNMA or FHLMC if it
were the purchaser of the Mortgage Loans. The Master Servicer shall (i)
require each Servicer to maintain an Errors and Omissions Insurance Policy and
a 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 any Servicer under any
such bond or policy shall be remitted to the Master Servicer to the extent
provided in the applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of
its annual unaudited financial statements on or prior to May 31 of each year.
Such financial statements shall include a balance sheet, income statement,
statement of retained earnings, statement of additional paid-in capital,
statement of changes in financial position and all related notes and schedules
and shall be in comparative form, certified by a nationally recognized firm of
Independent Accountants to the effect that such statements were examined and
prepared in accordance with generally accepted accounting principles applied
on a basis consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures. (a) The Master Servicer
shall master service the Mortgage Loans and shall have full power and
authority, subject to the REMIC Provisions and the provisions of Article X
hereof, and each Servicer shall have full power and authority (to the extent
provided in the applicable Servicing Agreement) to do any and all things that
it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and authority (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer to
take, any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the interests of
the Trust Fund in the same manner as it protects its own interests in mortgage
loans in its own portfolio in any claim, proceeding or litigation regarding a
Mortgage Loan and shall not make or permit any Servicer to make any
modification, waiver or amendment of any term of any Mortgage Loan that would
cause the Trust Fund to fail to qualify as a REMIC or result in the imposition
of any tax under Section 860F(a) or Section 860G(d) of the Code. Without
limiting the generality of the foregoing, the Master Servicer in its own name
or in the name of a Servicer, and each Servicer, to the extent such authority
is delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is hereby authorized and empowered by the Trustee when
the Master Servicer or a Servicer, as the case may be, believes it appropriate
in its best judgment and in accordance with Accepted Servicing Practices and
the applicable Servicing Agreement, to execute and deliver, on behalf of
itself and the Certificateholders, the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
the Master Servicer, upon request, with any powers of attorney empowering the
Master Servicer or any Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the applicable Servicing Agreement and
this Agreement, and the Trustee shall execute and deliver such other
documents, as the Master Servicer may request, necessary or appropriate to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of any
such powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of
the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its
name, then upon request of the Trustee, the Master Servicer shall join with
the Trustee in the appointment of a co-trustee pursuant to Section 6.09
hereof. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where it
is taking action in the name of the Trustee, be deemed to be the agent of the
Trustee. (b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that the maturity of any Mortgage
Loan shall not be extended past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
extension described in clause (ii) above, the Master Servicer shall make or
cause to be made Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master
Servicer shall not, unless default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer, imminent, permit any modification,
waiver or amendment of any material term of any Mortgage Loan (including but
not limited to the interest rate, the principal balance, the amortization
schedule, or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Master Servicer shall
have provided or caused to be provided to the Trustee an Opinion of Counsel in
writing to the effect that such modification, waiver or amendment would not be
treated as giving rise to a new debt instrument for federal income tax
purposes and would not adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations. (a) Each Servicing Agreement
requires the applicable Servicer to service the Mortgage Loans in accordance
with the provisions thereof. References in this Agreement to actions taken or
to be taken by the Master Servicer include actions taken or to be taken by a
Servicer on behalf of the Master Servicer. Any fees and other amounts payable
to such Servicers shall be deducted from amounts remitted to the Master
Servicer by the applicable Servicer and shall not be an obligation of the
Trust.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
terminate the rights and obligations of such Servicer thereunder and either
act as servicer of the related Mortgage Loans or enter into a Servicing
Agreement with a successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor initially
only (i) from a general recovery resulting from such enforcement only to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed,
and then, to the extent that such amounts are insufficient to reimburse the
Master Servicer for the costs of such enforcement, (iii) from the Collection
Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items.
(a) To the extent provided in the applicable Servicing Agreement, the Master
Servicer shall cause each Servicer to establish and maintain one or more
custodial accounts at a depository institution (which may be a depository
institution with which the Master Servicer or any Servicer establishes
accounts in the ordinary course of its servicing activities), the accounts of
which are insured to the maximum extent permitted by the FDIC (each, an
"Escrow Account") and shall deposit therein any collections of amounts
received with respect to amounts due for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums or any comparable items for the
account of the Mortgagors. Withdrawals from any Escrow Account may be made (to
the extent amounts have been escrowed for such purpose) only in accordance
with the applicable Servicing Agreement. Each Servicer shall be entitled to
all investment income not required to be paid to Mortgagors on any Escrow
Account maintained by such Servicer. The Master Servicer shall make (or cause
to be made) to the extent provided in the applicable Servicing Agreement
advances to the extent necessary in order to effect timely payment of taxes,
water rates, assessments, Standard Hazard Insurance Policy premiums or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it has determined that the funds so advanced are recoverable from escrow
payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable by
the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
Servicers. (a) The Master Servicer shall be entitled to terminate the rights
and obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in
the event of termination of any Servicing Agreement by the Master Servicer or
the related Servicer, the Master Servicer shall provide for the servicing of
the related Mortgage Loans as follows: (i) upon any such termination of Option
One as Servicer, servicing of the related Mortgage Loans shall be transferred
to Aurora, provided that Aurora exercises its option to acquire such servicing
as provided below; (ii) upon any such termination of Aurora as Servicer,
servicing of the related Mortgage Loans shall be transferred to the Special
Servicer, provided that the Special Servicer exercises its option to acquire
such servicing as provided below; and (iii) upon any such termination of
Ocwen, a successor special servicer shall be appointed as provided in the
Special Servicing Agreement. In each such case, servicing of the related
Mortgage Loans shall be performed by the applicable successor in accordance
with the provisions of the Servicing Agreement to which such successor is a
party. In the event that any such successor servicer fails to notify the
Master Servicer within 15 days of such proposed transfer described in clause
(i) or (ii) above of its intention to exercise its option to acquire such
servicing and to service the related Mortgage Loans in accordance with the
terms of the applicable Servicing Agreement, the Master Servicer shall appoint
a successor servicer or special servicer or shall itself (or through an
Affiliate) act as servicer or special servicer of the related Mortgage Loans.
Notwithstanding the foregoing provisions to the extent applicable to
termination of the rights and obligations of the Special Servicer, the
Directing Holder, if any, shall have the rights accorded to it under the
Special Servicing Agreement.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties
made by the terminated Servicer in respect of the related Mortgage Loans, and
in the event of any such assumption by the successor Servicer, the Trustee or
the Master Servicer, as applicable, may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement.
Notwithstanding any Servicing Agreement, the Master Servicer shall remain
obligated and liable to the Trustee and the Certificateholders in accordance
with the provisions of this Agreement, to the extent of its obligations
hereunder, without diminution of such obligation or liability by virtue of
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 its Servicers 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 Servicers and
Trustee or Depositor. Any Servicing Agreement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving a
Servicer in its capacity as such and not as an originator shall be deemed to
be between such Servicer, the Seller and the Master Servicer, and the Trustee
and the Depositor shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to such
Servicer except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. (a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee shall be deemed to have assumed all
of the Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. To the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 9.12. Release of Mortgage Files. (a) Upon becoming aware of
the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes for payment to Certificateholders on the next
Distribution Date, the Master Servicer will, or will cause the applicable
Servicer to, promptly notify the Trustee (or the applicable Custodian) by a
certification (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Collection Account maintained by the Master Servicer
pursuant to Section 4.01 have been or will be so deposited) of a Servicing
Officer and shall request the Trustee or the applicable Custodian, to deliver
to the applicable Servicer the related Mortgage File. Upon receipt of such
certification and request, the Trustee or the applicable Custodian (with the
consent, and at the direction of the Trustee), shall promptly release the
related Mortgage File to the applicable Servicer and the Trustee shall have no
further responsibility with regard to such Mortgage File. Upon any such
payment in full, the Master Servicer is authorized, and each Servicer, to the
extent such authority is delegated to such Servicer by the Master Servicer
under the applicable Servicing Agreement, is authorized, to give, as agent for
the Trustee, as the mortgagee under the Mortgage that secured the Mortgage
Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case may
be, shall be chargeable to the Collection Account. (b) From time to time and
as appropriate for the servicing or foreclosure of any Mortgage Loan and in
accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of any such proceedings. The Trustee or the Custodian, shall, upon request of
the Master Servicer, or of a Servicer, and delivery to the Trustee or the
applicable Custodian, of a trust receipt signed by a Servicing Officer
substantially in the form of Exhibit C, release the related Mortgage File held
in its possession or control to the Master Servicer (or the applicable
Servicer). Such trust receipt shall obligate the Master Servicer or applicable
Servicer to return the Mortgage File to the Trustee or Custodian, as
applicable, when the need therefor by the Master Servicer or applicable
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in
which case, upon receipt of a certificate of a Servicing Officer similar to
that herein above specified, the trust receipt shall be released by the
Trustee or the Custodian, as applicable, to the Master Servicer (or the
applicable Servicer).
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The Master Servicer shall transmit, or
cause the applicable Servicer to transmit, to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer
or by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of
any Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee as provided in the applicable Servicing Agreement.
The Master Servicer shall, and shall (to the extent provided in the applicable
Servicing Agreement) cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or
other regulatory authority, such access to be afforded without charge but only
upon reasonable request in writing and during normal business hours at the
offices of the Master Servicer designated by it. In fulfilling such a request
the Master Servicer shall not be responsible for determining the sufficiency
of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by any Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from the Seller to the Depositor not to constitute a sale, the Trustee
shall have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
any Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a
Servicer is entitled under its Servicing Agreement, or the Master Servicer or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so long as the Mortgage Loans are assigned to and held by the Trustee, all
documents or instruments constituting part of the Mortgage Files, and such
funds relating to the Mortgage Loans which come into the possession or custody
of, or which are subject to the control of, the Master Servicer or any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws. (d) The Master Servicer
agrees that it shall not, and shall not authorize any Servicer to, create,
incur or subject any Mortgage Loans, or any funds that are deposited in any
custodial account, Escrow Account or the Collection Account, or any funds that
otherwise are or may become due or payable to the Trustee, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance,
nor assert by legal action or otherwise any claim or right of setoff against
any Mortgage Loan or any funds collected on, or in connection with, a Mortgage
Loan. Section 9.14. _____ Representations and Warranties of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee, for the benefit of the Certificateholders, 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, 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
and Lehman Brothers Inc. an Opinion of Counsel, dated the Closing Date, in
form and substance reasonably satisfactory to the Depositor and Lehman
Brothers Inc., as to the due authorization, execution and delivery of this
Agreement by the Master Servicer and the enforceability thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan, the Master Servicer shall maintain or cause to be maintained
standard fire and casualty insurance and, where applicable, flood insurance,
all in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set
forth in the applicable Servicing Agreement and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained on
property acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies maintained pursuant
to this Section 9.16 (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the applicable Servicing Agreement) shall be
deposited into the Collection Account, subject to withdrawal pursuant to
Section 4.02. Any cost incurred by the Master Servicer or any Servicer in
maintaining any such insurance if the Mortgagor defaults in its obligation to
do so shall be added to the amount owing under the Mortgage Loan where the
terms of the Mortgage Loan so permit; provided, however, that the addition of
any such cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by the
Master Servicer or such Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. The
Master Servicer shall, or shall cause each Servicer (to the extent provided in
the applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition requisite to the presentation of claims on
the related Mortgage Loan to the insurer under any applicable Insurance Policy
need not be so deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance
Policies. (a) The Master Servicer shall not take, or permit any Servicer
(consistent with the applicable Servicing Agreement) to take, any action that
would result in noncoverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use
its best reasonable efforts to keep in force and effect, or to cause each
Servicer to keep in force and effect (to the extent that the Mortgage Loan
requires the Mortgagor to maintain such insurance), primary mortgage insurance
applicable to each Mortgage Loan in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable. The Master
Servicer shall not, and shall not permit any Servicer to, cancel or refuse to
renew any such Primary Mortgage Insurance Policy that is in effect at the date
of the initial issuance of the Certificates and is required to be kept in
force hereunder except in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents. The Trustee (or its custodian, if any, as directed by
the Trustee), shall retain possession and custody of the originals of the
Primary Mortgage Insurance Policies or certificate of insurance if applicable
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its custodian, if any, as directed by the Trustee) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall promptly deliver or cause to be delivered to the Trustee (or its
custodian, if any, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. Subject to
the provisions of the Special Servicing Agreement, the Master Servicer shall
use its reasonable best efforts to, or to cause the Special Servicer to,
foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, all in accordance with the applicable
Servicing Agreement.
Section 9.21. Compensation to the Master Servicer. The Master
Servicer shall (i) be entitled, at its election, either (a) to pay itself the
Master Servicing Fee, as reduced pursuant to Section 5.05, in respect of the
Mortgage Loans out of any Mortgagor payment on account of interest prior to
the deposit of such payment in the Collection Account it maintains or (b) to
withdraw from the Collection Account, subject to Section 5.05, the Master
Servicing Fee to the extent permitted by Section 4.02(iv). The Master Servicer
shall also be entitled, at its election, either (a) to pay itself the Master
Servicing Fee in respect of each delinquent Mortgage Loan master serviced by
it out of Liquidation Proceeds in respect of such Mortgage Loan or other
recoveries with respect thereto to the extent permitted in Section 4.02 or (b)
to withdraw from the Collection Account it maintains the Master Servicing Fee
in respect of each Liquidated Mortgage Loan to the extent of such Liquidation
Proceeds or other recoveries, to the extent permitted by Section 4.02.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any Prepayment
Penalty Amount) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by withdrawal from the Certificate Account to the extent that payments have
been received with respect to the applicable Mortgage Loan. The Master
Servicer shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as provided in this Agreement. Pursuant to Section 4.01(e),
all income and gain realized from any investment of funds in the Collection
Account shall be for the benefit of the Master Servicer as additional
compensation. The provisions of this Section 9.21 are subject to the
provisions of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. Subject to the provisions of the Special
Servicing Agreement, the Master Servicer shall use its reasonable best efforts
to sell, or, to the extent provided in the applicable Servicing Agreement,
cause the Special Servicer to sell, any REO Property as expeditiously as
possible and in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable, but in all events within the time
period, and subject to the conditions set forth in Article X hereof. Pursuant
to its efforts to sell such REO Property, the Master Servicer shall protect
and conserve, or cause the Special Servicer to protect and conserve, such REO
Property in the manner and to such extent required by the Special Servicing
Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received in connection with the operation of any REO
Property in the Collection Account it maintains.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of any
net rental income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable
Servicer as provided above and in the Special Servicing Agreement, shall be
deposited in the Collection Account on or prior to the Determination Date in
the month following receipt thereof (and the Master Servicer shall provide
prompt written notice to the Trustee upon such deposit) and be remitted by
wire transfer in immediately available funds to the Trustee for deposit into
the Certificate Account on the next succeeding Deposit Date.
Section 9.23. Preparation of Tax Returns and Other Reports. (a) The
Master Servicer shall prepare or cause to be prepared on behalf of the Trust
Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Trustee shall file,
federal tax returns and appropriate state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and
the Trustee shall forward copies to the Depositor of all such returns and Form
1099 information and such other information within the control of the Trustee
as the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Trustee as are required by the Code and the REMIC Provisions to be
furnished to them, and will prepare and file annual reports required by
applicable state authorities, will file copies of this Agreement with the
appropriate state authorities as may be required by applicable law, and will
prepare and disseminate to Certificateholders Form 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Master Servicer will indemnify the Trustee for any
liability of or assessment against the Trustee resulting from any error in any
of such tax or information returns resulting from errors in the information
provided by such Master Servicer (other than information that is derived
solely from information provided by a Servicer).
(b) The Master Servicer shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund, an application on IRS
Form SS-4. 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 will prepare or
cause to be prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly
current reports on Form 8-K, on behalf of the Trust Fund, as may be required
by applicable law, for filing with the Securities and Exchange Commission (the
"SEC"). The Trustee will sign each such report on behalf of the Trust. 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
after the period during which such filings are required under the Securities
Exchange Act of 1934. Promptly after filing a Form 15 or other applicable form
with the SEC in connection with such termination, the Master Servicer shall
deliver to the Depositor a copy of such form together with copies of
confirmations of receipt by the SEC of each report filed therewith on behalf
of the Trust Fund.
Section 9.24. Reports to the Trustee. (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall forward to the Trustee
a statement, deemed to have been certified by a Servicing Officer, setting
forth the status of the Collection Account maintained by the Master Servicer
as of the close of business on the related Distribution Date, indicating that
all distributions required by this Agreement to be made by the Master Servicer
have been made (or if any required distribution has not been made by the
Master Servicer, specifying the nature and status thereof) and showing, for
the period covered by such statement, the aggregate of deposits into and
withdrawals from the Collection Account maintained by the Master Servicer.
Copies of such statement shall be provided by the Master Servicer to the
Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or (ii)
the Trustee shall be unaware of the Master Servicer's failure to provide such
statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee and the Rating Agency on or
before May 31 of each year, commencing on May 31, 1999, an Officer's
Certificate, certifying that with respect to the period ending on the
immediately preceding December 31; 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; 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, 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 the
Master Servicer has received from each Servicer such Servicer's annual
certificate of compliance and a copy of such Servicer's annual audit report,
in each case to the extent required under the applicable Servicing Agreement,
or, if any such certificate or report has not been received by the Master
Servicer, the Master Servicer is using its best reasonable efforts to obtain
such certificate or report.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. If
the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Mortgage Loans, then the Master Servicer at its expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating Agency and the
Depositor on or before May 31 of each year, commencing on May 31, 1999 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 Agency 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 any
servicing errors or interruptions resulting from any failure of any Servicer
to maintain computer and other information systems that are year-2000
compliant.
Section 9.31. Indemnification; Third-Party Claims. The Master
Servicer agrees to indemnify the Depositor and the Trustee, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses that the Depositor and the Trustee may sustain as a result of the
failure of the Master Servicer to perform its duties and master service the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor
and the Trustee shall immediately notify the Master Servicer if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Depositor or the Trustee to indemnification hereunder, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) An election will be made by
the Trustee to treat the Trust Fund as a REMIC under the Code. Such election
will be made on Form 1066 or other appropriate federal tax or information
return for the taxable year ending on the last day of the calendar year in
which the Certificates are issued. For the purposes of such election, each
Class A Certificate and each Class B Certificate shall be designated as the
"regular interests" in the REMIC and the Class R Certificate shall be
designated as the "residual interest" in the REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The 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 shall act as Tax Matters Person for each
REMIC. 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 the REMIC to take any action necessary to
create or maintain the status of such REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Master Servicer nor the Holder of any
Residual Certificate shall take any action, cause the REMIC to take any action
or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of such REMIC as a REMIC or (ii) result in the imposition
of a tax upon such REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee and the Master Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to the REMIC or the assets therein, or causing such
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, any Holder of a Residual Certificate will consult with the
Trustee and the Master Servicer, or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to
occur with respect to such REMIC, and no such Person shall take any such
action or cause such REMIC to take any such action as to which the Trustee or
the Master Servicer has advised it in writing that an Adverse REMIC Event
could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The 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 1999,
the Master Servicer shall deliver to the Trustee and the Rating Agency an
Officer's Certificate stating the Master Servicer's compliance with the
provisions of this Section 10.01.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to the REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other
than the Residual Certificates as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in
the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status. (a) In the event that the 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 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, 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).
Section 10.04. REO Property. (a) Notwithstanding any other provision
of this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not, and shall, to the extent provided in the applicable
Servicing Agreement, not permit any Servicer to, rent, lease, or otherwise
earn income on behalf of any REMIC with respect to any REO Property which
might cause such REO Property to fail to qualify as "foreclosure" property
within the meaning of section 860G(a)(8) of the Code or result in the receipt
by any REMIC of any "income from non-permitted assets" within the meaning of
section 860F(a)(2) of the Code or any "net income from foreclosure property"
which is subject to tax under the REMIC Provisions unless the Master Servicer
has advised, or has caused the applicable Servicer to advise, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of the REMIC as a REMIC and any income generated
for such REMIC by the REO Property would not result in the imposition of a tax
upon such REMIC.
(b) The Master Servicer shall make, or shall cause the Special
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the Special Servicer to, dispose of any REO Property within three years from
the end of the calendar year of its acquisition by the Trust Fund unless the
Trustee has received a grant of extension from the Internal Revenue Service to
the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, the REMIC may hold REO Property
for a longer period without adversely affecting the REMIC status of such REMIC
or causing the imposition of a Federal or state tax upon such REMIC. If the
Trustee has received such an extension, then the Trustee, or the Master
Servicer, acting on its behalf hereunder, shall, or shall cause the Special
Servicer to, continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension permits (the
"Extended Period"). If the Trustee has not received such an extension and the
Trustee, or the Master Servicer acting on behalf of the Trustee hereunder, or
the Special Servicer is unable to sell the REO Property within 33 months after
its acquisition by the Trust Fund or if the Trustee has received such an
extension, and the Trustee, or the Master Servicer acting on behalf of the
Trustee hereunder, is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Master Servicer
shall, or shall cause the Special Servicer to, before the end of the three
year period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Master
Servicer or the Special 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 (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class 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 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 the 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
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 Aggregate Notional Amount) of each Class of Certificates affected
thereby. For purposes of this paragraph, references to "Holder" or "Holders"
shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement. Section 1Voting Rights. Except to the
extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Notional Amount),
Certificates owned by the Depositor, the Master Servicer, the Trustee or any
Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee or
any Servicer or Affiliates thereof.
Section 11.05. Provision of Information. (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in providing such information shall be reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form 8-K
or Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 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 Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to the Depositor, Attention: Contract
Finance, a copy of the report delivered to Certificateholders pursuant to
Section 4.03. Section 1Governing 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, 230 South Tryon Street NC1179, Charlotte, North Carolina 28288,
Attention: Structured Finance, 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 Agency. (a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master
Servicer pursuant to Section 6.14 and any resignation of the Master
Servicer hereunder;
(v) the appointment of any successor to any Master
Servicer pursuant to Section 6.14; and
(vi) the making of a final payment pursuant to Section
7.02.
(b) All notices to the Rating Agency provided for this Section shall
be in writing and sent by first class mail, telecopy or overnight courier, as
follows:
Standard & Poor's Rating Services
26 Broadway, 15th Floor
New York, New York 10004
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agency reports prepared
pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Seller agrees that it
shall provide written notice to the Trustee and the Master Servicer thirty
days prior to any transfer or assignment by the Seller of its rights under any
Servicing Agreement or of the servicing thereunder or delegation of its rights
or duties thereunder or any portion thereof to any Person other than the
initial Servicer under such Servicing Agreement. In addition, the ability of
the Seller to transfer or assign its rights and delegate its duties under any
Servicing Agreement or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
(i) Such successor servicer must be qualified to service
loans for FNMA or FHLMC;
(ii) _____ Such successor servicer must satisfy the
seller/servicer eligibility standards in the applicable Servicing
Agreement, exclusive of any experience in mortgage loan origination,
and must be reasonably acceptable to the Master Servicer, whose
approval shall not be unreasonably withheld;
(iii) Such successor servicer must execute and deliver to
the Trustee and the Master Servicer an agreement, in form and
substance reasonably satisfactory to the Trustee and the Master
Servicer, that contains an assumption by such successor servicer of
the due and punctual performance and observance of each covenant and
condition to be performed and observed by the Servicer under the
applicable Servicing Agreement;
(iv) There must be delivered to the Trustee a letter from
the 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 Seller shall, at its cost and expense, take such
steps, or cause the terminated Servicer to take such steps, as may
be necessary or appropriate to effectuate and evidence the transfer
of the servicing of the Mortgage Loans to such successor servicer,
including, but not limited to, the following: (A) to the extent
required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Seller shall cause the
prior Servicer to timely mail to each obligor under a Mortgage Loan
any required notices or disclosures describing the transfer of
servicing of the Mortgage Loans to the successor servicer; (B) prior
to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the
effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to deliver to the successor servicer all Mortgage
Loan Documents and any related records or materials; (D) on or prior
to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transfer to the successor
servicer, or, if such transfer occurs after a Remittance Date but
before the next succeeding Deposit Date, to the Master Servicer, all
funds held by the Servicer in respect of the Mortgage Loans; (E) on
or prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to, after the effective date
of the transfer of servicing to the successor servicer, continue to
forward to such successor servicer, within one Business Day of
receipt, the amount of any payments or other recoveries received by
the prior Servicer, and to notify the successor servicer of the
source and proper application of each such payment or recovery; and
(F) the Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such
transfer in such manner and to such extent as the successor servicer
may reasonably request.
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:__________________________________
Name: Joseph Kelly
Title: Authorized Signatory
FIRST UNION NATIONAL BANK,
as Trustee
By:__________________________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Master Servicer
By:__________________________________
Name:
Title:
Solely for purposes of Section 11.14,
accepted and agreed to by:
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By:___________________________________
Name: Jack Desens
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of
June 1, 1998 among Structured Asset Securities Corporation,
as Depositor, First Union National Bank, as Trustee, and
Norwest Bank Minnesota, National Association, as Master
Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1998-6
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject
to review of the contents thereof, the undersigned, as Trustee, hereby
certifies that it (or its custodian) has received the documents listed in
Section 2.01(b) of the Trust Agreement for each Mortgage File pertaining to
each Mortgage Loan listed on Schedule A, to the Trust Agreement, subject to
any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
[[Custodian], on behalf of]
FIRST UNION NATIONAL BANK,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of June 1, 1998
among Structured Asset Securities Corporation, as Depositor,
First Union National Bank, as Trustee, and Norwest Bank Minnesota,
National Association, as Master Servicer, with respect to
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1998-6
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents identified above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[[Custodian], on behalf of]
FIRST UNION NATIONAL BANK,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
Date
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of June 1,
1998 among Structured Asset Securities Corporation, as Depositor,
First Union National Bank, as Trustee, and Norwest Bank Minnesota,
National Association, as Master Servicer, with respect to
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1998-6
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[[Custodian], on behalf of]
FIRST UNION NATIONAL BANK,
as Trustee
By:_____________________________________
Name:
Title:
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 June 1, 1998, among
Structured Asset Securities Corporation, as Depositor, the Trustee and the
Master Servicer relating to Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 1998-6, without recourse.
______________________________________
[current signatory on note]
By:___________________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you
as Trustee under a certain Trust Agreement dated as of June 1, 1998 among
Structured Asset Securities Corporation, as Depositor, Norwest Bank Minnesota,
National Association, as Master Servicer, and you, as Trustee (the "Trust
Agreement"), the undersigned Master Servicer hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies
that all amounts received in connection with the loan have been or will be
credited to the Collection Account or the Certificate Account (whichever is
applicable) pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies
that the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed (in which case the Mortgage File will be
returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
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), 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 June 1, 1998, 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 G to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is 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 political subdivision thereof, or
an estate or trust that is subject to U.S. federal income tax regardless of
the source of its income.
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
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
-------------------
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
__________________________
Name:
Title:
EXHIBIT E
SERVICING AGREEMENTS
EXHIBIT E-1
SPECIAL SERVICING COMPENSATION AGREEMENT
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 1998-6
Reference is hereby made to the Trust Agreement dated as of June 1,
1998 (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: __________________, ________
G-3
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 1998-6 (the
"Privately Offered Certificates") of Structured Asset Securities Corporation
(the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within three years of the later of the date of original issuance of
the Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we
will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act ("QIBs"), (C) pursuant to an exemption from registration in
accordance with Rule 904 of Regulation S under the Securities Act,
(D) pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (E) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of June
1, 1998 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.
(6) If we are acquiring ERISA-Restricted Certificates, we understand
that in accordance with ERISA, the Code and the Exemption, no Plan
as to which the Purchaser, the Depositor, any Servicer or Master
Servicer or the Trustee is a party in interest or disqualified
person, and no person acting on behalf of such a Plan may acquire
such Certificate unless the acquisition would constitute an exempt
transaction under a statutory exemption or any of the administrative
exemptions issued by the U.S. Department of Labor.
Terms used in this letter which are not otherwise defined herein
have the respective meanings assigned thereto in the Trust Agreement.
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:
H-2
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is the ______________________ of (the
"Investor"), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan subject
to Section 406 or Section 407 of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), the Trustee of any such plan or a person acting
on behalf of any such plan nor a person using the assets of any such plan or
(2) if the Investor is an insurance company, such Investor is purchasing such
Certificates with funds contained in an "Insurance Company General Account"
(as such term is defined in Section v(e) of the Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the Trustee
and the Depositor an opinion of counsel (a "Benefit Plan Opinion")
satisfactory to the Trustee and the Depositor, and upon which the Trustee and
the Depositor shall be entitled to rely, to the effect that the purchase or
holding of such Certificate by the Investor will not result in the assets of
the Trust Fund being deemed to be plan assets and subject to the prohibited
transaction provisions of ERISA or the Code and will not subject the Trustee
or the Depositor to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel shall not be an
expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, as Depositor, Norwest Bank Minnesota, National Association, as
Master Servicer, and First Union National Bank, as Trustee, dated as of June
1, 1998, no transfer of the ERISA-Restricted Certificates shall be permitted
to be made to any person unless the Depositor and Trustee have received a
certificate from such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 199 .
[Investor]
By:_____________________________________
Name:
Title:
ATTEST:
- ---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named _________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Investor, and acknowledged
that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this _____ day of ___________ 199__.
_____________________________
NOTARY PUBLIC
My commission expires the
____ day of __________,
19__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENT
SCHEDULE A
MORTGAGE LOAN SCHEDULE
SCHEDULE B
PRINCIPAL AMOUNT SCHEDULES
[Not Applicable]
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 June 1, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
1.01. Sale of Mortgage Loans................................................. 2
1.02. Delivery of Documents.................................................. 3
1.03. Review of Documentation................................................ 3
1.04. Representations and Warranties of Lehman Capital....................... 3
1.05. Grant Clause........................................................... 7
1.06 Assignment by Depositor................................................ 7
ARTICLE II
MISCELLANEOUS PROVISIONS
2.01. Binding Nature of Agreement; Assignment................................ 8
2.02. Entire Agreement....................................................... 8
2.03. Amendment.............................................................. 8
2.04. Governing Law.......................................................... 9
2.05. Severability of Provisions............................................. 9
2.06. Indulgences; No Waivers................................................ 9
2.07. Headings Not to Affect Interpretation.................................. 9
2.08. Benefits of Agreement.................................................. 9
2.09. Counterparts........................................................... 9
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
<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 June, 1998.
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 June 1, 1998, among the Depositor, Norwest Bank Minnesota, National
Association, as Master Servicer and First Union National Bank, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to the following specified mortgage loan transfer
agreements (each a "Transfer Agreement", and together the "Transfer
Agreements"), Lehman Capital has purchased from certain transferors (each a
"Transferor", and together the "Transferors"), certain mortgage loans
identified on the Mortgage Loan Schedule attached hereto as Exhibit A:
1. Mortgage Loan Purchase and Sale Agreement Servicing Released, dated
March 19, 1998, between Lehman Capital and Impac Funding Corporation;
2. Mortgage Loan Purchase and Sale Agreement Servicing Released, dated
April 15, 1998, between Lehman Capital and Impac Funding Corporation;
3. Mortgage Loan Purchase Agreement, dated as of September 30, 1997,
between Lehman Capital and Option One Mortgage Corporation; and
4. Seller's Warranties and Servicing Agreement, dated as of December 19,
1997, between Lehman Capital and Option One Mortgage Corporation.
WHEREAS, each Transfer Agreement permits the purchaser to assign its
rights and interests in such agreement and to delegate its obligations
thereunder;
WHEREAS, Lehman Capital desires to sell, without recourse, all of its
right, title and interest in the Mortgage Loans to the Depositor, to assign all
of its rights and interest under the Transfer Agreements, and to delegate all
of its obligations thereunder, to the Depositor; and
WHEREAS, Lehman Capital and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and delegate all of its obligations
hereunder to the Trustee, and that each reference herein to the Depositor is
intended, unless otherwise specified, to mean the Depositor or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lehman Capital and the Depositor agree as
follows:
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans. Concurrently with the execution and
delivery of this Agreement, Lehman Capital does hereby transfer, assign, set
over, deposit with and otherwise convey to the Depositor, without recourse, 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 $142,534,738.10. 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 June 1, 1998 (other than
payments of principal and interest due on or before such date), and all such
payments due after such date but received prior to such date and intended by
the related Mortgagors to be applied after such date, together with all of
Lehman Capital's right, title and interest in and to each related account and
all amounts from time to time credited to and the proceeds of such account, any
REO Property and the proceeds thereof, Lehman Capital's rights under any
Insurance Policies related to the Mortgage Loans, and Lehman Capital's security
interest in any collateral pledged to secure the Mortgage Loans, including the
Mortgaged Properties and any Additional Collateral.
Concurrently with the execution and delivery of this Agreement, Lehman
Capital hereby assigns to the Depositor all of its rights and interest under
the Transfer Agreements, and delegates to the Depositor all of its obligations
thereunder. Concurrently with the execution hereof, the Depositor tenders the
purchase price of $142,534,738.10. The Depositor hereby accepts such assignment
and delegation, and shall be entitled to exercise all such rights of Lehman
Capital under the Transfer Agreements, as if the Depositor had been a party to
the Transfer Agreements.
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 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 U.S. Bank Trust, National Association, as custodian (the "Custodian") for
the Depositor. The Custodian is required to review, within 45 days following
the Closing Date, each applicable Mortgage File. If in the course of such
review the Custodian identifies any Material Defect, Lehman Capital shall be
obligated to cure such defect or to repurchase the related Mortgage Loan from
the Depositor (or, at the direction of and on behalf of the Depositor, from the
Trust Fund), or to substitute a Qualifying Substitute Mortgage Loan therefor,
in each case to the same extent and in the same manner as the Depositor is
obligated to the Trustee and the Trust Fund under Section 2.02(c) of the Trust
Agreement.
Section 1.04. Representations and Warranties of Lehman Capital. (a) Lehman
Capital hereby represents and warrants to the Depositor that as of the date
hereof that:
(i) Lehman Capital is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by Lehman Capital of this Agreement
have been duly authorized by all necessary corporate action on the part of
Lehman Capital; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on Lehman
Capital or its properties or the certificate of incorporation or bylaws of
Lehman Capital;
(iii) the execution, delivery and performance by Lehman Capital of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by Lehman
Capital and, assuming due authorization, execution and delivery by the
Depositor, constitutes a valid and binding obligation of Lehman Capital
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of
creditors generally and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at
law; and
(v) there are no actions, suits or proceedings pending or, to the
knowledge of Lehman Capital, threatened or likely to be asserted against
or affecting Lehman Capital, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of Lehman Capital will be determined
adversely to Lehman Capital and will if determined adversely to Lehman
Capital materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement.
(b) The representations and warranties of each Transferor with respect to
the Mortgage Loans in the applicable Transfer Agreement were made as of the
date of such Transfer Agreement. To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of a Transferor under the applicable Transfer
Agreement and (ii) a representation or warranty of Lehman Capital under this
Agreement, the only right or remedy of the Depositor shall be the right to
enforce the obligations of such Transferor under any applicable representation
or warranty made by it. The Depositor acknowledges and agrees that the
representations and warranties of Lehman Capital in this Section 1.04(b) are
applicable only to facts, conditions or events that do not constitute a breach
of any representation or warranty made by the related Transferor in the
applicable Transfer Agreement. Lehman Capital shall have no obligation or
liability with respect to any breach of a representation or warranty made by it
with respect to the Mortgage Loans if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
the related Transferor in such Transfer Agreement, without regard to whether
the related Transferor fulfills its contractual obligations in respect of such
representation or warranty. Subject to the foregoing, Lehman Capital represents
and warrants upon delivery of the Mortgage Loans to the Depositor hereunder, as
to each, that:
(i) The information set forth with respect to the Mortgage Loans on
the Mortgage Loan Schedule provides an accurate listing of the Mortgage
Loans, and the information with respect to each Mortgage Loan on the
Mortgage Loan Schedule is true and correct in all material respects at the
date or dates respecting which such information is given;
(ii) There are no defaults in complying with the terms of any
Mortgage, and Lehman Capital has no notice as to any taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents which previously became due and owing
but which have not been paid;
(iii) Except in the case of Cooperative Loans, each Mortgage requires
all buildings or other improvements on the related Mortgaged Property to
be insured by a generally acceptable insurer against loss by fire, hazards
of extended coverage and such other hazards as are customary in the area
where the related Mortgaged Property is located pursuant to insurance
policies conforming to the requirements of the guidelines of FNMA or
FHLMC. If upon origination of the Mortgage Loan, the Mortgaged Property
was in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of
the current guidelines of the Federal Flood Insurance Administration. Each
Mortgage obligates the related Mortgagor thereunder to maintain the hazard
insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost and expense,
and to seek reimbursement therefor from the Mortgagor. Where required by
state law or regulation, each Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy
is not a "master" or "blanket" hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is
the valid and binding obligation of the insurer, is in full force and
effect, and will be in full force and effect and inure to the benefit of
the Depositor upon the consummation of the transactions contemplated by
this Agreement.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or recision;
(v) Each Mortgage evidences a valid, subsisting, enforceable and
perfected first or second lien on the related Mortgaged Property
(including all improvements on the Mortgaged Property). The lien of the
Mortgage is subject only to: (1) liens of current real property taxes and
assessments not yet due and payable and, if the related Mortgaged Property
is a condominium unit, any lien for common charges permitted by statute,
(2) covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage acceptable to mortgage lending institutions in the area in which
the related Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of title and
abstract of title delivered to the originator of such Mortgage Loan, (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, and (4)
in the case of second liens, to the subsisting first lien. 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 applicable, 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 or second priority
lien of the Mortgage in the original principal amount of the Mortgage Loan
(subject only to the exceptions described in paragraph (v) above. If the
Mortgaged Property is a condominium unit located in a state in which a
title insurer will generally issue an endorsement, then the related Title
Insurance Policy contains an endorsement insuring the validity of the
creation of the condominium form of ownership with respect to the project
in which such unit is located. With respect to any Title Insurance Policy,
the originator is the sole insured of such mortgagee Title Insurance
Policy, such mortgagee Title Insurance Policy is in full force and effect
and will inure to the benefit of the Depositor upon the consummation of
the transactions contemplated by this Agreement, no claims have been made
under such mortgagee Title Insurance Policy and no prior holder of the
related Mortgage, including Lehman Capital, has done, by act or omission,
anything that would impair the coverage of such mortgagee Title Insurance
Policy;
(viii) To the best of Lehman Capital's knowledge, no foreclosure
action is being threatened or commenced with respect to any Mortgage Loan.
There is no proceeding pending for the total or partial condemnation of
any Mortgaged Property (or, in the case of a Cooperative Loan, the related
cooperative unit) and each such property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty,
so as to have a material adverse effect on the value of the related
Mortgaged Property as security for the related Mortgage Loan or the use
for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under the law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(x) Each Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
Federal or State authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act; and
(xi) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G of the Code and Treas. Reg. ss.1.860G-2.
It is understood and agreed that the representations and warranties
set forth herein survive delivery of the Mortgage Files and the Assignment
of Mortgage of each Mortgage Loan to the Depositor. Upon discovery by
either Lehman Capital or the Depositor of a breach of any of the foregoing
representations and warranties that adversely and materially affects the
value of the related Mortgage Loan, and that does not also constitute a
breach of a representation or warranty of the related Transferor in the
applicable Transfer Agreement, the party discovering such breach shall
give prompt written notice to the other party. Within 60 days of the
discovery of any such breach, Lehman Capital shall either (a) cure such
breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Depositor at the applicable
Purchase Price or (c) within the two year period following the Closing
Date, substitute a Qualifying Substitute Mortgage Loan for the affected
Mortgage Loan.
Section 1.05. Grant Clause. It is intended that the conveyance of Lehman
Capital's right, title and interest in and to Mortgage Loans and other property
conveyed pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) Lehman Capital hereby
grants to the Depositor a first priority security interest in all of Lehman
Capital's right, title and interest in, to and under, whether now owned or
hereafter acquired, such Mortgage Loans and other property; and (3) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Depositor. The Depositor shall have the right,
upon notice to but without the consent of Lehman Capital, to assign, in whole
or in part, its interest under this Agreement with respect to the Mortgage
Loans to the Trustee, and the Trustee then shall succeed to all rights of the
Depositor under this Agreement. All references to the Depositor in this
Agreement shall be deemed to include its assignee or designee, specifically
including the Trustee.
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 2.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
Section 2.03. Amendment. (a) This Agreement may be amended from time to
time by Lehman Capital and the Depositor, without notice to or the consent of
any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund, the Trust Agreement or
this Agreement in any Offering Document; or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by the
Code and the REMIC Provisions. No such amendment effected pursuant to clause
(iii) of the preceding sentence shall adversely affect in any material respect
the interests of any Holder. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not cause
such Rating Agency to reduce the then current rating assigned to the
Certificates (and any Opinion of Counsel requested by the Trustee in connection
with any such amendment may rely expressly on such confirmation as the basis
therefor).
(b) This Agreement may also be amended from time to time by Lehman Capital
and the Depositor with the consent of the Holders of not less than 66-2/3% of
the Class Certificate Principal Amount (or Percentage Interest) of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders; provided, however,
that no such amendment may (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without, the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Certificate
Principal Amount (or Percentage Interest) of Certificates of each Class, the
Holders of which are required to consent to any such amendment without the
consent of the Holders of 100% of the Class Certificate Principal Amount (or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be deemed
to include, in the case of any Class of Book-Entry Certificates, the related
Certificate Owners.
(c) It shall not be necessary for the consent of Holders under this
Section 2.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 2.06. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted
such waiver.
Section 2.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 2.08. Benefits of Agreement. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties to this Agreement and
their successors hereunder, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement.
Section 2.09. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, Lehman Capital and the Depositor have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By: /s/ Jack Desens
Name: Jack Desens
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Joseph Kelly
Name: Joseph Kelly
Title: Authorized Signatory
<PAGE>
SCHEDULE A
MORTGAGE LOAN SCHEDULE
Draft No. 2
SPECIAL SERVICING AGREEMENT
THIS SPECIAL SERVICING AGREEMENT (this "Agreement"), entered into as of
the 1st day of June, 1998, 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 "Special Servicer"):
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, as trustee (the "Trustee") under a
trust agreement dated as of June 1, 1998 (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, including the Class B6
Certificates, will be issued on the Closing Date pursuant to the Trust
Agreement, and Lehman Pass-Through Securities 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 B6 Certificates.
WHEREAS, Lehman Capital desires that the Special Servicer perform the
services with respect to the Serviced Mortgage Loans as provided in this
Agreement (including those provisions that are incorporated by reference
herein), and the Special Servicer has agreed to do so, subject to the
conditions set forth herein.
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 Special Servicer
under this Special Servicing Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lehman Capital and the Special 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 Servicing Agreement dated
as of December 1, 1997, between Lehman Capital and the Special Servicer (the
"Servicing Agreement") incorporated by reference herein, shall have the
meanings ascribed to such terms in the Trust Agreement.
2. Special Servicing. The Special 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 Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the 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 Special Servicer. The Special
Servicer, including any successor special servicer hereunder, shall be subject
to the supervision of the Master Servicer, which Master Servicer shall be
obligated to ensure that the Special Servicer services the Serviced Mortgage
Loans in accordance with the provisions of this Agreement. The Master Servicer,
acting on behalf of the Trustee pursuant to the Trust Agreement, shall have the
same rights as the "Owner" (as defined in the Servicing Agreement) to enforce
the obligations of the Special Servicer under the Servicing Agreement. The
Master Servicer shall be entitled to terminate the rights and obligations of
the Special Servicer under this Agreement upon the failure of the Special
Servicer to perform any of its obligations under this Agreement, after the
expiration of any notice and cure periods, if any, as provided in Section 9.01
of the Servicing Agreement. If the Special Servicer is in default under this
Agreement, after the expiration of any notice and cure periods, if any, the
Master Servicer shall, upon the written direction of the Directing Holder,
terminate the rights and obligations of the Special Servicer under this
Agreement.
Upon prior written notice, the Directing Holder shall have the exclusive
right to terminate the rights and obligations of the Special Servicer under
this Agreement without cause and without payment of any termination fee in
connection with such termination; provided, that (i) any successor special
servicer shall be appointed in the manner provided below and (ii) a letter is
provided to the Trustee from the Rating Agency to the effect that such
termination and appointment will not result in the qualification, reduction, or
withdrawal of the ratings applicable to the Certificates.
Notwithstanding anything to the contrary in Sections 9.01, 9.02 and 10.01
of the Servicing Agreement, the Directing Holder shall, within 30 days of the
receipt by the Special Servicer of a copy of any termination notice delivered
by the Master Servicer to the Special Servicer or upon delivery by the
Directing Holder of any such notice pursuant Section 9.02 or upon receipt by
the Directing Holder of any resignation notice given by the Special Servicer,
notify the Master Servicer in writing of the Directing Holder's nominee as
successor special servicer, which nominee shall be appointed as special
servicer by the Master Servicer unless the Master Servicer reasonably objects
to such nominee within 10 days following receipt of such notice. If the Master
Servicer objects to such nominee, then the Master Servicer shall, within such
10-day period, appoint a successor special servicer, which successor shall be
reasonably acceptable to the Directing Holder.
4. No Representations. Neither the Special 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 SPECIAL 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 Special Servicer agree that this
Agreement is a Reconstitution Agreement, and that the date hereof is the
Reconstitution Date, each as defined in the Servicing Agreement. This Agreement
amends the terms and provisions of the Servicing Agreement only with respect to
the Serviced Mortgage Loans identified on Schedule I hereto and does not
purport to amend or modify the Servicing Agreement with respect to any other
loans that are or may become subject to the Servicing Agreement.
9. Notices and Remittances to the Master Servicer. All notices required to
be delivered to the Owner or the Master Servicer under this Agreement shall be
delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, SASCO 1998-6
Copies of all such notices, and all notices to be delivered to the initial
Directing Holder under this Agreement, shall be delivered to the Directing
Holder at the following address:
Lehman Brothers Inc.
Three World Financial Center
200 Vesey Street
New York, New York 10285
Attn: Mortgage-Backed Securities
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: #13445400, SASCO 1998-6
10. Termination of Rights of Directing Holder. The parties hereto intend
that the Directing Holder be a third party beneficiary of this Agreement. All
rights of the Directing Holder hereunder and under the Trust Agreement and all
obligations of the other parties hereto with respect to the Directing Holder
shall terminate immediately upon any transfer of the then outstanding Class of
Subordinate Certificates having the highest numerical Class designation to any
other Person, unless (i) the Special Servicer consents in writing to the
transfer of such rights and (ii) the Trustee is provided with a letter from
each Rating Agency to the effect that the transfer of the rights of the
Directing Holder to such transferee will not result in the qualification,
withdrawal or downgrade of the ratings then assigned to any Class of
Certificates.
11. Annual Audit Report. On or before April 30 of each year, beginning
with April 30, 1999, Special Servicer shall cause a firm of independent public
accountants (who may also render other services to Special Servicer), which is
a member of the American Institute of Certified Public Accountants, to furnish
a statement to Owner, Directing Holder and Master Servicer, to the effect that
such firm has examined certain documents and records for the preceding calendar
year (or during the period from the date of commencement of such servicer's
duties hereunder until the end of such preceding calendar 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 Special
Servicer's overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
12. Annual Officer's Certificate. On or before April 30 of each year,
beginning with April 30, 1999, the Special Servicer, at its own expense, will
deliver to the Owner, Directing Holder and Master Servicer a Servicing
Officer's certificate stating, as to each signer thereof, that (i) a review of
the activities of the Special 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 Special 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 Special
Servicer to remedy such default.
<PAGE>
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By:
Name: Joseph J. Kelly
Title: Vice President
OCWEN FEDERAL BANK FSB
By:
Name:
Title:
<PAGE>
EXHIBIT A
Modifications to the Servicing Agreement
1. The following is hereby added immediately following the words "incidental
fees and charges" in the definition of "Ancillary Income" in Article I: ",
but not including any premium or penalty associated with a prepayment of
principal of a Mortgage Loan."
2. The definition of "Base Servicing Fee" is hereby amended by deleting the
last sentence therefrom.
3. 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 U.S. Bank Trust National Association, as Custodian, First
Union National Bank, as Trustee, and Structured Asset Securities
Corporation, dated as of June 1, 1998."
4. The following is hereby added immediately following the words "Special
Servicer" in the definition of "Opinion of Counsel" in Article I: "(except
that such counsel must be Independent (as defined in the Trust Agreement)
outside counsel with respect to any such opinion relating to the REMIC
Provisions)."
5. The definition of "Primary Servicer" in Article I is hereby deleted and
replaced with the following:
"Any of Option One Mortgage Corporation, Aurora Loan Services Inc. or
any successor to either of them."
6. The following definitions are hereby added to Article I:
"Monthly Advance: With respect to each Remittance Date and each
Mortgage, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan Remittance
Rate) which was due on the Mortgage Loan, and (i) which was delinquent at
the close of business on the immediately preceding Determination Date and
(ii) which was not the subject of a previous Monthly Advance, unless such
Advance would constitute a Nonrecoverable Advance.
"REMIC Provisions: The provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of
Subchapter M of Chapter 1, Subtitle A of the Code, and related provisions,
and regulations, rulings or pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time."
7. The definition of "First 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 the month, following the month in
which the related Transfer Date occurs."
8. 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."
9. Section 2.03 is hereby amended by deleting the first, second and third
paragraphs thereof in their entirety and, in the fourth paragraph thereof,
deleting the following: "(and any applicable Acknowledgement Agreement)".
10. Section 2.05(a)(i) is deleted in its entirety and replaced with the
following:
"(a)(i) Within five business days following a Transfer Date, the
Special Servicer shall reimburse the Primary Servicer for all principal
and interest and Servicing Advances made by such Primary Servicer and all
accrued and unpaid Servicing Fees due to the Primary Servicer with respect
to any Transferred Mortgage Loan identified on such Notice of Transfer for
which the Primary Servicer has not been reimbursed. Thereafter, such
amounts paid by the Special Servicer, if any, shall be reimbursed to the
Special Servicer in accordance with Section 3.04 hereof."
11. Section 3.01 is hereby amended by deleting clause (a) of the third
paragraph of subsection (B) thereof and by adding the following at the end
of such Section:
"(C) In connection with the transfer of any Distressed Mortgage Loan,
(i) the Special Servicer will be responsible for servicing the Distressed
Mortgage Loan from and after the effective date of transfer of servicing
to the Special Servicer, but shall have no obligation to service such
Distressed Mortgage Loan on or prior to such effective date of the
transfer of servicing, (ii) notwithstanding clause (i) above, the Special
Servicer shall not include the Distressed Mortgage Loan in its monthly
remittance report pursuant to Section 4.02 for the month in which such
transfer is effected and shall not be obligated to make the Monthly
Advance with respect to such Distressed Mortgage Loan on the Remittance
Date in the month in which such transfer is effected, in each case,
regardless of whether the Remittance Date occurs before or after the
effective date of such transfer, (iii) the amount of Monthly Advances to
be reimbursed to the Servicer by the Special Servicer hereunder shall
include the Monthly Advance made by the Servicer on such Remittance Date,
regardless of whether the Servicer makes such Monthly Advance before or
after the effective date of such transfer, and (iv) the Special Servicer
shall be entitled to the Base Servicing Fee with respect to each such
Distressed Mortgage Loan for the entire month in which such transfer
occurs.
Promptly after the transfer of any Distressed Mortgage Loan, the
Special Servicer shall use its best reasonable efforts to determine
whether any seller's representation or warranty applicable to such
Mortgage Loan has been breached, and shall notify the Trustee and the
Master Servicer in writing of any possible breach so identified. The
Special Servicer may conclusively rely upon information provided by Lehman
Capital, and its successors and assigns, including copies of any related
agreements of sale, in determining which representations and warranties
are applicable to such Mortgage Loan."
12. The words "Special Servicer, in trust for Lehman Capital, A Division of
Lehman Brothers Holdings, Inc., owner of Residential Mortgage Loans, Group
No. ______, and various Mortgagors" in the first paragraph of Section 3.03
are hereby deleted and replaced with the following: "Ocwen Federal Bank
FSB, in trust for Norwest Bank Minnesota, National Association, as master
servicer for SASCO 1998-6."
13. Section 3.04(ii) is deleted in its entirety and replaced with the
following:
"(ii) to reimburse itself for unreimbursed advances of the Special
Servicer's funds made pursuant to Section 2.05 hereof, including advances
by the Special Servicer to reimburse the Primary Servicer for principal
and interest advances, Servicing Advances and unpaid servicing fees due to
them, if any, the Special Servicer's right to reimburse itself pursuant to
this subclause (ii) being limited to either (x) amounts received on the
related Transferred Mortgage Loan which represent late payments of
principal and/or interest respecting which any such advance was made, and
related Liquidation Proceeds, condemnation proceeds, Insurance Proceeds,
REO Disposition Proceeds and other amounts received in respect of the
related Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Special Servicer's right thereto shall be prior to the
rights of the Owner, the Master Servicer, any Primary Servicer and any
Certificateholder or (y) any other amounts in the Collection Account in
the event that such advances have been deemed to be Nonrecoverable
Advances or are not recovered from recoveries in respect of the related
Transferred Mortgage Loan or REO Property after a final determination has
been made as to what amounts have been or will be recovered, it being
understood that for those Transferred Mortgage Loans in foreclosure, the
Owner shall reimburse the Special Servicer for Servicing Advances and
advances made pursuant to Section 2.05 hereof through the completion of
the sale of the defaulted Mortgage Loan, or the foreclosure and
disposition of the REO Property;"
14. Section 3.04 is hereby amended by deleting clause (iii) in its entirety
and replacing such clause with the following clauses (iii) and (iv):
"(iii) to reimburse itself for Monthly Advances of the Special
Servicer's funds made pursuant to Section 7.03, the Special Servicer's
right to reimburse itself pursuant to this subclause (iii) being limited
to amounts received on the related Mortgage Loan which represent late
payments of principal and/or interest respecting which any such advance
was made, related Liquidation Proceeds, Insurance Proceeds, condemnation
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 Special Servicer from the Mortgagor or otherwise relating to such
Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Special Servicer's right thereto shall be prior to the
rights of the Owner, the Master Servicer, any Primary Servicer and any
Certificateholder ; provided, that if the Special Servicer reasonably
determines that any unreimbursed Monthly Advance is a Nonrecoverable
Advance, the foregoing limitation shall not apply thereto;
(iv) to reimburse itself for unreimbursed Servicing Advances, and for
any unpaid Base Servicing Fees, the Special Servicer's right to reimburse
itself pursuant to this subclause (iv) with respect to any Mortgage Loan
being limited to related late collections, 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 Special Servicer from the
Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of any such reimbursement, the Special Servicer's right
thereto shall be prior to the rights of the Owner; provided, that if the
Special Servicer reasonably determines that any unreimbursed Servicing
Advance is a Nonrecoverable Advance, the foregoing limitation shall not
apply thereto;"
Clauses (iv) through (viii) in Section 3.04 are hereby redesignated
clauses (v) through (ix), as applicable.
15. The words "Special Servicer, in trust for Lehman Capital, A Division of
Lehman Brothers Holdings, Inc., owner of Residential Mortgage Loans, Group
No. ______, and various Mortgagors" in the first paragraph of Section 3.05
are hereby deleted and replaced with the following: "Ocwen Federal Bank
FSB, in trust for Norwest Bank Minnesota, National Association, as master
servicer for SASCO 1998-6."
16. Section 3.10(a) is deleted in its entirety and replaced with the
following:
"(a) Default Management Responsibilities: Subject only to Accepted
Servicing Practices and Section 3.11 below, the Special Servicer shall
have full power and authority to do or cause to be done any and all things
in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing,
the Special Servicer is hereby authorized and empowered by the Owner (if,
in the Special Servicer's reasonable judgment, such action with respect to
the Transferred Mortgage Loans and/or the Mortgaged Properties is in the
best interests of Owner in accordance with, or is required by, this
Agreement, and subject to Accepted Servicing Practices) to take the
following actions (without limitation): (i) prepare, execute and deliver,
on behalf of the Owner with expenses associated therewith being Servicing
Advances hereunder, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the
lien on each Mortgaged Property and related collateral; and, subject to
the remaining terms and provisions of this Section, modifications, waivers
(including, without limitation, waivers of any late payment charge in
connection with any delinquent payment on a Transferred Mortgage Loan),
consents, amendments, discounted payoff agreements, forbearance
agreements, cash management agreements or consents to or with respect to
any documents contained in the related servicing file; and any and all
instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other instruments comparable to any of the types of
instruments described in this subsection (i), and (ii) institute and
prosecute judicial and non-judicial foreclosures, suits on promissory
notes, indemnities, guaranties or other loan documents, actions for
equitable and/or extraordinary relief (including, without limitation,
actions for temporary restraining orders, injunctions, and appointment of
receivers), suits for waste, fraud and any and all other tort, contractual
and/or other claims of whatever nature, and to appear in and file on
behalf of the Owner such pleadings or documents as may be necessary or
advisable in any bankruptcy action, state or federal suit or any other
action. In the event that any Mortgage Loan is in default or, in the
judgment of the Special Servicer, such default is reasonably foreseeable,
the Special Servicer, consistent with Accepted Servicing Practices, may
waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Interest Rate, defer or
forgive the payment of principal or interest or extend the final maturity
date of such Mortgage Loan), accept payment from the related Mortgagor of
an amount less than the full outstanding and unpaid principal balance in
final satisfaction of such Mortgage or consent to the postponement of
strict compliance with any such term or otherwise grant indulgence to any
Mortgagor if in the Special Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated
Realized Loss that might result absent such action). In addition, if, with
respect to a Transferred Mortgage Loan, a default (or any condition
resulting in a default being reasonably foreseeable) is cured (such
Mortgage Loan being referred to herein as a "Performing Loan"), the
Special Servicer may thereafter waiver, modify or vary terms of such
Performing Loan provided that no such action will (A) decrease the
Mortgage Rate on the Performing Loan, (B) defer or forgive the payment of
principal or interest (except with respect to liquidation of such
Performing Loan) or (C) extend the final maturity date of such Performing
Loan, provided, however, that no such modification shall be permitted to
the extent that it would (a) affect adversely the status of the Trust Fund
as a REMIC or (b) cause the Trust Fund to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not waive any premium or penalty in connection with
a prepayment of principal of any Mortgage Loan, and shall not consent to
the modification of any Mortgage Note to the extent that such modification
relates to payment of a prepayment premium or penalty; provided, that the
foregoing shall not (i) apply to any Severely Delinquent Loan or (ii)
prohibit the Special Servicer from entering into any agreement for
modification, waiver, forbearance, amendment or discounted payoff of a
Mortgage Loan in accordance with this Agreement that does not have the
effect of waiving any prepayment premium or penalty or modifying any
provision requiring payment thereof.
Notwithstanding the foregoing, in the event of any conflict between
the provisions of this Section 3.10 and the provisions of Section 3.11,
the provisions of Section 3.11 shall control."
17. Section 3.10(e) is hereby deleted in its entirety and replaced with the
following:
"(e) At any time, the Directing Holder may request that the Special
Servicer take a particular action with respect to a particular Mortgage
Loan, including without limitation foreclosure, waivers or modifications.
Any such request shall be in writing, a copy of which shall be delivered
to the Master Servicer. If the Special Servicer determines that such
requested action is consistent with Accepted Servicing Practices, then the
Special Servicer shall comply with such request. Within two Business Days
of receipt of such a request, the Special Servicer shall notify the
Directing Holder whether the Special Servicer intends to comply with such
request. If the Special Servicer does not comply with such request (or
fails to notify the Directing Holder of its decision within the two
Business Day period), then the Directing Holder may, at its sole option
and upon written notice to the Special Servicer and the Master Servicer,
purchase the related Mortgage Loan from the Trust Fund at the Purchase
Price (as defined in the Trust Agreement). In addition, the Directing
Holder may purchase any Severely Delinquent Mortgage Loan upon written
notice to the Master Servicer and the Special Servicer within three
Business Days of the day on which such Mortgage Loan becomes a Severely
Delinquent Loan.
The Special Servicer shall have the right to purchase any Severely
Delinquent Loan at the Purchase Price (as defined in the Trust Agreement).
The Special Servicer shall send a written notice (the "Initial Notice") to
the Directing Holder advising the Directing Holder that the Special
Servicer intends to purchase a Severely Delinquent Loan. The Directing
Holder shall have the option to (i) direct the Special Servicer not to
purchase any such Severely Delinquent Loan but to proceed with a
particular default resolution strategy consistent with Accepted Servicing
Practices, (ii) direct the Special Servicer to proceed with the purchase
of such loan on the terms proposed by the Special Servicer, or (iii)
indicate that the Directing Holder intends to purchase such Severely
Delinquent Loan, in which case the Directing Holder shall have the sole
right and option to purchase the Severely Delinquent Loan at the Purchase
Price; provided, however, that if the Directing Holder fails or refuses to
deliver a written notice of its election to the Special Servicer within
two Business Days after the Special Servicer has sent to the Directing
Holder the Initial Notice, then the Directing Holder shall be deemed to
have consented to the Special Servicer purchasing the Severely Delinquent
Loan for its own account."
18. The following Section 3.11 is hereby added immediately following Section
3.10:
"Section 3.11 REMIC Provisions.
(a) Unless the Mortgagor is in default with respect to the related
Mortgage Loan or such default is, in the judgment of the Special Servicer,
reasonably foreseeable, the Special 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),
change the final maturity date on such Mortgage Loan, or permit any
alteration, substitution or release of any collateral for such Mortgage
Loan.
(b) The Special Servicer shall dispose of any 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 (i) the Owner
shall have been supplied with an Opinion of Counsel to the effect that the
holding by the Trust Fund of such Mortgaged Property subsequent to such
three-year period (and specifying the period beyond such three-year period
for which the Mortgaged Property may be held) will not result in the
imposition of taxes on "prohibited transactions" of the Trust Fund as
defined in section 860F of the Code, or cause the related REMIC to fail to
qualify as a REMIC, in which case the Trust Fund may continue to hold such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel), or (ii) the Owner (at the Special Servicer's expense) or the
Special Servicer shall have applied for, not later than 61 days prior to
the expiration of such three-year period, an extension of such three-year
period in the manner contemplated by section 856(e)(3) of the Code, in
which case the three-year period shall be extended by the applicable
period. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the
Special Servicer shall report monthly to the Owner as to the progress
being made in selling such REO Property and (ii) if, with the written
consent of the Owner, a purchase money mortgage is taken in connection
with such sale, such purchase money mortgage shall name the Special
Servicer as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement
between the Special Servicer and the Owner shall be entered into with
respect to such purchase money mortgage.
Notwithstanding any other provision of this Agreement, no Mortgaged
Property held by a REMIC shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of
the Trust Fund or sold in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify at any time as
"foreclosure property" within the meaning of section 860G(a)(8) of the
Code, (ii) subject the Trust Fund to the imposition of any federal or
state income taxes on "net income from foreclosure property" with respect
to such Mortgaged Property within the meaning of section 860G(c) of the
Code, or (iii) cause the sale of such Mortgaged Property to result in the
receipt by the Trust Fund of any income from non-permitted assets as
described in section 860F(a)(2)(B) of the Code, unless the Special
Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes."
19. The first paragraph of Section 4.01 is hereby deleted and replaced with
the following:
"On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the Master Servicer (a) all amounts
deposited in the Custodial Account as of the close of business on the last
day of the related Due Period (net of charges against or withdrawals from
the Custodial Account pursuant to Section 3.04), plus (b) all amounts, if
any, which the Servicer is obligated to advance pursuant to Section 7.03,
minus (c) any amounts attributable to Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds or REO Disposition Proceeds received after
the applicable Prepayment Period, which amounts shall be remitted on the
following Remittance Date, together with any additional interest required
to be deposited in the Custodial Account in connection with such Principal
Prepayment in accordance with Section 7.03, and minus (d) any amounts
attributable to Monthly Payments collected but due on a due date or dates
subsequent to the first day of the month in which such Remittance Date
occurs, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts."
20. Section 4.02 is hereby amended by deleting the words "Remittance Date" in
the first line of such Section, and substituting the following: "tenth day
of each month, or if such tenth day is not a Business Day, the immediately
preceding Business Day"
21. Section 5.01 is hereby amended by deleting the last sentence of each of
subsections (a) and (b) thereof.
22. The following Sections 7.03 and 7.04 are hereby added immediately
following Section 7.02:
"Section 7.03 Monthly Advances and Compensating Interest.
(a) Notwithstanding anything to the contrary herein, the Special
Servicer shall make Monthly Advances (other than Balloon Payments as
defined in the Trust Agreement) on each Remittance Date 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,
unless such advances would constitute Nonrecoverable Advances.
(b) Notwithstanding anything to the contrary herein, with respect to
each Principal Prepayment of a Mortgage Loan the Special Servicer shall
deposit in the Custodial Account on a daily basis and retain therein the
Prepayment Interest Shortfall Amount, if any, for the month of
distribution. Such deposit shall be made from the Special Servicer's own
funds, without reimbursement therefor, up to a maximum amount per month
equal to the aggregate of the Base Servicing Fees otherwise payable to the
Special Servicer with respect to such month.
Section 7.04 Special Servicing Compensation. Notwithstanding anything
to the contrary herein, the Special Servicer shall not be entitled to pay
itself any compensation out of amounts collected on or in respect of the
Mortgage Loans other than the Base Servicing Fee and any Ancillary Income,
to the extent provided herein. Any other compensation payable to the
Special Servicer hereunder, including the Special Servicing Fee, the
Extended Special Servicing Fee and the Incentive Fee, shall be payable to
the Special Servicer on each Distribution Date as provided in the Trust
Agreement."
23. Section 9.02 is hereby deleted in its entirety.
24. The following paragraph is added at the end of Section 10.01:
"Neither the Master Servicer nor any successor special servicer
(including the Owner and the Master Servicer) shall be liable for any acts
or omissions of the Special Servicer or any predecessor servicer. In
particular, neither the Master Servicer nor any successor special servicer
(including the Owner and the Master Servicer) shall be liable for any
servicing errors or interruptions resulting from any failure of the
Special Servicer to maintain computer and other information systems that
are year-2000 compliant."
25. All references in the Servicing Agreement or in any schedules or exhibits
thereto, including, without limitation, Exhibit I, to the "Decision
Matrix" are hereby deleted in their entirety.
26. The following definition is hereby added:
"Prepayment Period: With respect to the first Remittance Date, the
period beginning on the Cut-off Date and ending on July 1. 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."
27. The definitions of "Extended Special Servicing Fee," "Incentive Fee,"
"Loss Severity Percentage" and "Special Servicing Fee" are hereby deleted
in their entirety.
28. Section 5.01is hereby deleted in its entirety and replaced with the
following:
"Section 5.01 Servicing Compensation. As consideration for servicing
the Transferred Mortgage Loans subject to this Agreement, the Special
Servicer shall be entitled to (i) retain the Base Servicing fee equal to
one-twelfth of (x) the Servicing Fee Rate and (y) the outstanding
principal balance of such Transferred Mortgage Loan (or an assumed unpaid
principal balance as of the date the related Transferred Mortgage Loan was
foreclosed or a deed-in-lieu of foreclosure was delivered) during any
month or part thereof (unless otherwise specified herein) and (ii) receive
such additional compensation as is specified in a separate letter
agreement dated the Closing Date."
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of June, 1998, by and between LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation ("Lehman Capital"), and AURORA LOAN
SERVICES INC., a Delaware corporation ("the Servicer"), recites and provides as
follows:
RECITALS
WHEREAS, Lehman Capital has conveyed certain Mortgage Loans identified
on Schedule I hereto (the "Serviced Mortgage Loans") on a servicing-retained
basis to Structured Asset Securities Corporation ("SASCO"), which in turn has
conveyed the Serviced Mortgage Loans to First Union National Bank, as trustee
(the "Trustee") under a trust agreement dated as of June 1, 1998 (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, Lehman Capital continues to own the servicing rights to the
Serviced Mortgage Loans, and may freely transfer such rights, subject to the
terms hereof.
WHEREAS, Lehman Capital desires that the Servicer service the Serviced
Mortgage Loans, and the Servicer has agreed to do so, subject to the right of
Lehman Capital to terminate the rights and obligations of the Servicer hereunder
at any time and to the other conditions set forth herein.
WHEREAS, 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.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Lehman Capital and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Flow Servicing
Agreement dated as of September 1, 1997, between Lehman Capital and the Servicer
(the "Flow Servicing Agreement") incorporated by reference herein, shall have
the meanings ascribed to such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Flow Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Flow Servicing Agreement, as so modified,
are and shall be a part of this Agreement to the same extent as if set forth
herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee pursuant
to the Trust Agreement, shall have the same rights as the "Owner" (as defined in
the Flow Servicing Agreement) to enforce the obligations of the Servicer under
the Flow Servicing Agreement. The Master Servicer shall be entitled to terminate
the rights and obligations of the Servicer under this Agreement upon the failure
of the Servicer to perform any of its obligations under this Agreement, as
provided in Article IX of the Flow Servicing Agreement.
In addition, in the event that Lehman Capital transfers the servicing
rights in respect of the Serviced Mortgage Loans to one or more successor
servicers, the rights and obligations of the Servicer under this Agreement shall
terminate, at the sole option of Lehman Capital, without cause, upon thirty days
written notice to the Servicer, and each successor servicer shall succeed to the
rights and obligations of the Servicer under this Agreement as of such date.
Upon such termination the terminated Servicer shall not be entitled to the
Servicing Fee or any portion thereof, or, except as provided in the Flow
Servicing Agreement, to any other amounts in respect of the Serviced Mortgage
Loans.
The Servicer agrees that, notwithstanding anything to the contrary in
the Flow Servicing Agreement, Lehman Capital is the sole owner of the servicing
rights relating to the Serviced Mortgaged Loans, and the Servicer shall have no
right to transfer the servicing thereof.
4. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the Serviced Mortgage Loans in connection with the transactions
contemplated by the Trust Agreement and issuance of the certificates issued
pursuant thereto.
5. Notices. All notices and communications between or among the parties
hereto shall be in writing and shall be deemed received or given when mailed
first-class mail, postage prepaid, addressed to each other party at its address
specified below. Each party may designate to the other parties in writing, from
time to time, other addresses to which notices and communications hereunder
shall be sent.
6. Governing Law. THIS SERVICING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
8. Reconstitution. Lehman Capital and the Servicer agree that this
Agreement is a Reconstitution Agreement, and that the date hereof is the
Reconstitution Date, each as defined in the Flow Servicing Agreement.
9. Notices and Remittances to the Master Servicer. All notices required
to be delivered to the Owner or the Master Servicer under this Agreement shall
be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044
Attn: Master Servicing Department, SASCO 1998-6
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: #13445400, SASCO 1998-6
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 pr policies
shall be maintained with recognized insurers and shall be in such form and
amount as would permit the Servicer to be qualified as a FNMA or FHLMC
seller-servicer. The Servicer shall be deemed to have complied with this
provision if an affiliate of the Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. The Servicer
shall furnish to the Master Servicer a copy of each such bond and insurance
policy if (i) the Master Servicer so requests and (ii) the Servicer is not an
affiliate of Lehman Brothers Inc. at the time of such request.
11. Annual Audit Report. On or before April 30 of each year, beginning
with April 30, 1999, Servicer shall cause a firm of independent public
accountants (who may also render other services to Servicer), which is a member
of the American Institute of Certified Public Accountants, to furnish a
statement to Owner, Directing Holder and Master Servicer, to the effect that
such firm has examined certain documents and records for the preceding fiscal
year (or during the period from the date of commencement of such servicer's
duties hereunder until the end of such preceding fiscal year in the case of the
first such certificate) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that Servicer's overall servicing
operations have been conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers except for such exceptions that, in the opinion of
such firm, the Uniform Single Attestation Program for Mortgage Bankers requires
it to report, in which case such exceptions shall be set forth in such
statement.
12. Annual Officer's Certificate. On or before April 30 of each year,
beginning with April 30, 1999, the Servicer, at its own expense, will deliver to
the Owner, Directing Holder and Master Servicer a Servicing Officer's
certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer during such preceding fiscal year and of performance
under this Agreement has been made under such officers' supervision, and (ii) to
the best of such officers' knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement for such year, or, if there
has been a default in the fulfillment of all such obligations, specifying each
such default known to such officers and the nature and status thereof including
the steps being taken by the Servicer to remedy such default.
<PAGE>
28367
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By:
Name: Joseph J. Kelly
Title: Authorized Signatory
AURORA LOAN SERVICES INC.
By:
Name:
Title:
<PAGE>
A-6
EXHIBIT A
Modifications to the Flow Servicing Agreement
1. The following is hereby added immediately following the words
"incidental fees and charges" in the definition of "Ancillary Income"
in Article I: ", but not including any premium or penalty associated
with a prepayment of principal of a Mortgage Loan."
2. The definition of "Custodial Agreement" in Article I is hereby deleted and
replaced with the following:
"The custodial agreement relating to custody of the Serviced
Mortgage Loans among: U.S. Bank Trust National Association, as Custodian, First
Union National Bank, as Trustee, and Structured Asset Securities Corporation,
dated as of June 1, 1998."
3. The following definition is hereby added:
"Prepayment Period: With respect to the first Remittance Date,
the period beginning on the Cut-off Date and ending on July 1. 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."
4. The definition of "Monthly Advance" in Article I is hereby amended by
adding at the end of such definition the following: ", but only to the
extent that such amount is expected, in the reasonable judgment of the
Servicer, to be recoverable from collections or other recoveries in
respect of such Mortgage Loan."
5. The definition of "Qualified Depository" in Article I is hereby deleted and
replaced with the following:
"Any of (i) a depository the accounts of which are insured by
the FDIC and the debt obligations of which are rated AA or better by
Fitch and S&P; (ii) the corporate trust department of any bank the debt
obligations of which are rated at least A-1 or its equivalent by each
of Fitch and S&P; or (iii) the Servicer, unless the Master Servicer is
notified by either Fitch or S&P that the designation of the Servicer as
a Qualified Depository will result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates."
6. 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."
7. The definition of "Servicing Advance" in Article I is hereby amended by
adding, immediately after the phrase "but not limited to, the cost of",
the following: "transfer of servicing of Distressed Mortgage Loans to
the Special Servicer pursuant to Section 9.02, and".
8. The first sentence of the definition of "Servicing Fee" in Article I is
hereby deleted and replaced with the following: "The servicing fee
shall be 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 Master Servicer 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."
9. The fourth and fifth paragraphs of Section 3.01 are hereby deleted and
replaced with the following paragraph:
"Consistent with the terms of this Agreement, the Servicer may
waive any late payment charge, assumption fee or other fee that may be
collected in the ordinary course of servicing the Mortgage Loans. The
Servicer shall not make any future advances to any obligor under any
Mortgage Loan, and (unless the Mortgagor is in default with respect to
the Mortgage Loan or such default is, in the judgment of the Servicer,
reasonably foreseeable) the Servicer shall not permit any modification
of any material term of any Mortgage Loan, including any modification
that would change the Mortgage Interest Rate, defer or forgive the
payment of principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or change
the final maturity date on such Mortgage Loan. In the event of any such
modification which permits the deferral of interest or principal
payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any
such principal or interest payment has been deferred, make a Monthly
Advance in accordance with Section 4.03, in an amount equal to the
difference between (a) such month's principal and one month's interest
at the Remittance Rate on the unpaid principal balance of such Mortgage
Loan and (b) the amount paid by the Mortgagor. The Servicer shall be
entitled to reimbursement for such advances to the same extent as for
all other advances made pursuant to Section 4.03. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself
and the Master Servicer, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. Upon the request of the Servicer,
the Master Servicer shall execute and deliver to the Servicer any
powers of attorney and other documents, furnished to it by the Servicer
and reasonably satisfactory to the Master Servicer, necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
Notwithstanding anything to the contrary in this Agreement,
the Servicer shall not waive any premium or penalty in connection with
a prepayment of principal of any Mortgage Loan, and shall not consent
to the modification of any Mortgage Note to the extent that such
modification relates to payment of a prepayment premium or penalty."
10. The words "Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.03 are hereby deleted
and replaced with the following: "Norwest Bank Minnesota, National
Association, as master servicer for SASCO 1998-6."
11. Section 3.03 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."
12. Section 3.04 is amended by deleting the word "and" at the end of clause
(v), replacing the period at the end of clause (vi) with "; and", and
adding the following immediately following clauses (vii) and (viii):
"(vii) to reimburse itself for Monthly Advances of the
Servicer's funds made pursuant to Section 7.03, it being understood
that, in the case of any such reimbursement, the Servicer's right
thereto shall be prior to the rights of the Trust Fund;
(viii) to reimburse itself for unreimbursed Servicing
Advances, and for any unpaid Servicing Fees, the Servicer's right to
reimburse itself pursuant to this subclause (viii) with respect to any
Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and
other amounts received in respect of the related REO Property, and such
other amounts as may be collected by the Servicer from the Mortgagor or
otherwise relating to the Mortgage Loan, it being understood that, in
the case of any such reimbursement, the Servicer's right thereto shall
be prior to the rights of the Purchaser;"
13. The words "Lehman Capital, A Division of Lehman Brothers Holdings Inc.,
owner of residential Mortgage Loans, Group No. 1997-ALSI, and various
Mortgagors" in the first paragraph of Section 3.05 are hereby deleted
and replaced with the following: "Norwest Bank Minnesota, National
Association, as master servicer for SASCO 1998-6."
14. All references in Section 3.11 to the disposition of REO Properties
within a two year period are hereby deleted and replaced with a three
year period.
15. The first paragraph of Section 4.01 is hereby deleted and replaced with the
following:
"On each Remittance Date the Servicer shall remit by wire
transfer of immediately available funds to the Master Servicer (a) all
amounts deposited in the Custodial Account as of the close of business
on the last day of the related Due Period (net of charges against or
withdrawals from the Custodial Account pursuant to Section 3.04), plus
(b) all amounts, if any, which the Servicer is obligated to distribute
pursuant to Section 7.03, minus (c) any amounts attributable to
Principal Prepayments, Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds or REO Disposition Proceeds received after the
applicable Prepayment Period, which amounts shall be remitted on the
following Remittance Date, together with any additional interest
required to be deposited in the Custodial Account in connection with
such Principal Prepayment in accordance with Section 7.03, and minus
(d) any amounts attributable to Monthly Payments collected but due on a
due date or dates subsequent to the first day of the month in which
such Remittance Date occurs, which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts."
16. Section 4.02 is hereby amended by deleting the words "Remittance Date"
in the first line of such Section, and substituting the following:
"tenth Business Day of each month"
17. The third paragraph of Section 5.01 is hereby deleted.
18. The following paragraph is hereby added at the end of Section 9.02:
"On the second Business Day of each month, the Servicer shall
orally inform the Master Servicer and the Special Servicer as to which
Mortgage Loans have become delinquent for a period of 61 days or more,
without giving effect to any grace period permitted by the related
Mortgage Note (each, a "Distressed Mortgage Loan"). No Mortgage Loan
shall be considered to be delinquent for such purpose by virtue of the
related Mortgagor having made payment to a prior servicer. Any such
Mortgage Loan as to which all past due payments are made prior to the
Notice Date shall not be considered to be a Distressed Mortgage Loan,
and the servicing thereof shall not be transferred as provided below.
On the fourth Business Day of each month (the "Notice Date"), the
Servicer shall send by facsimile a written listing of the Distressed
Mortgage Loans to the Master Servicer, the Trustee and the Custodian,
and shall mail to the Mortgagor of each Mortgage Loan listed in a
Transfer Notice a letter advising each such Mortgagor of the transfer
of the servicing of the related Mortgage Loan to the Special Servicer,
in accordance with the Cranston Gonzales National Affordable Housing
Act of 1990; provided, however, the content and format of such letter
shall have the prior approval of the Special Servicer. The Servicer
shall promptly provide the Special Servicer with copies of all such
notices. The transfer of servicing with respect to each such Mortgage
Loan to the Special Servicer shall be effected by the Servicer not
later than fifteenth day following the applicable Notice Date (the
"Transfer Date"). By the Business Day immediately following each Notice
Date, the Servicer shall provide the Master Servicer, the Special
Servicer, the Trustee and the Custodian with a certification (the
"Transfer Notice") listing the Distressed Mortgage Loans.
At least five Business Days prior to the Transfer Date, the
Servicer shall deliver, with respect to the Distressed Mortgage Loans
listed on the related Transfer Notice, to the Special Servicer all
Servicing Files, and to the Special Servicer and the Master Servicer a
preliminary loan level tape or other electronic media (a "Report") in
form reasonably acceptable to the Servicer, the Master Servicer and the
Special Servicer. Within two Business Days following such Transfer
Date, the Servicer shall deliver such Report in final form reasonably
acceptable to the Master Servicer and the Special Servicer, and
commensurate with generally acceptable industry standards, detailing
the amount of any unreimbursed Monthly Advances, Servicing Advances and
accrued and unpaid Servicing Fees on a loan level basis. Should the
Master Servicer or the Special Servicer desire a loan level tape or
other electronic media containing information which is not readily
extractable from the Servicer's servicing system, the Servicer shall
diligently cooperate to make such loan level data available to the
Master Servicer and Special Servicer. In addition, at least five
Business Days prior to the Transfer Date, the Servicer shall transfer
to the Special Servicer any funds held in an Escrow Account or
Custodial Account relating to the Distressed Mortgage Loans listed in
the related Transfer Notice. Upon the successful completion of the
transfer of servicing for Distressed Mortgage Loans, the Special
Servicer will reimburse the Servicer for any unreimbursed Monthly
Advances, Servicing Advances and accrued and unpaid Servicing Fees with
respect to such Distressed Mortgage Loans which have been properly
documented. The Servicer shall be paid, from the Custodial Account, a
termination fee of $25.00 for each Distressed Mortgage Loan transferred
to the Special Servicer.
In connection with the transfer of any Distressed Mortgage
Loan, (i) the Servicer will be responsible for servicing the Distressed
Mortgage Loan until the effective date of transfer of servicing to the
Special Servicer, but shall have no right or obligation to service such
Distressed Mortgage Loan from and after the effective date of the
transfer of servicing to the Special Servicer, (ii) notwithstanding
clause (i) above, the Servicer shall include the Distressed Mortgage
Loan in its monthly remittance report pursuant to Section 4.02 for the
month in which such transfer is effected and shall be obligated,
subject to Section 7.03, to make the Monthly Advance with respect to
such Distressed Mortgage Loan on the Remittance Date in the month in
which such transfer is effected, in each case, regardless of whether
the Remittance Date occurs before or after the effective date of such
transfer, (iii) the amount of Monthly Advances to be reimbursed to the
Servicer by the Special Servicer hereunder shall include the Monthly
Advance described in clause (ii) above regardless of whether the
Servicer makes such Monthly Advance before or after the effective date
of such transfer, (iv) the Servicer shall, no later than the end of the
month in which such transfer is effected, provide to the Special
Servicer loan level information (in the loan level tape or other
electronic media or other agreed-upon form) regarding the Distressed
Mortgage Loan during the month of such transfer as may be necessary to
enable the Special Servicer to provide such information in its
remittance report for the next following month, and (v) the Servicer
shall not be entitled to the Servicing Fee with regard to any such
Distressed Mortgage Loan for the month in which such transfer occurs."
19. The following paragraph is added at the end of Section 10.01:
"Neither the Master Servicer nor any successor servicer
(including the Owner and the Master Servicer) shall be liable for any
acts or omissions of the Servicer or any predecessor servicer. In
particular, neither the Master Servicer nor any successor servicer
(including the Owner and the Master Servicer) shall be liable for any
servicing errors or interruptions resulting from any failure of the
Servicer to maintain computer and other information systems that are
year-2000 compliant."
20. The following words are hereby added after the words "Attention: Rick Skogg"
in Section 10.06(ii):
"with a copy to:
Aurora Loan Services Inc.
601 Fifth Avenue
P.O. Box 1706
Scottsbluff, Nebraska 69361
Telephone No.: (308) 635-3500
Telecopier No.: (308) 632-4287
Attention: Lee Trautman"
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 1st
day of June, 1998, 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, as trustee (the "Trustee") under a
trust agreement dated as of June 1, 1998 (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, Lehman Capital desires that the Servicer service the Serviced
Mortgage Loans, and the Servicer has agreed to do so, subject to the conditions
set forth herein.
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.
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 Seller's
Warranties and Servicing Agreement dated as of September 30, 1997, between
Lehman Capital and the Servicer (the "Warranties and 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
Warranties and Servicing Agreement, except as otherwise provided herein and on
Exhibit A hereto, and that the provisions of the Warranties and Servicing
Agreement, as so modified, are and shall be a part of this Agreement to the same
extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Master Servicer, acting on behalf of the Trustee pursuant
to the Trust Agreement, shall have the same rights as the "Purchaser" (as
defined in the Warranties and Servicing Agreement) to enforce the obligations of
the Servicer under the Warranties and Servicing Agreement. 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 Warranties and
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 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, SASCO 1998-6
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: #13445400, SASCO 1998-6
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.
<PAGE>
Executed as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
By:
Name: Joseph J. Kelly
Title: Authorized Signatory
OPTION ONE MORTGAGE CORPORATION
By:
Name:
Title:
<PAGE>
A- 5
EXHIBIT A
Modifications to the Warranties and Servicing Agreement
1. All references to "Pool I," "Pool 1," "Pool 2" and "Pool II" in the
Warranties and Servicing Agreement are hereby deleted.
2. 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: U.S. Bank Trust National Association, as
Custodian, First Union National Bank, as Trustee, and Structured Asset
Securities Corporation, dated as of June 1, 1998."
3. 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."
4. The definition of "Servicing Advance" in Article I is hereby amended by
adding, immediately after the phrase "but not limited to, the cost of",
the following: "transfer of servicing of Delinquent Mortgage Loans to
the Special Servicer pursuant to Section 11.02, and".
5. The word "or" at the beginning of line twelve of the second paragraph
in Section 4.01 is hereby deleted and replaced with a comma, and the
following is hereby added immediately following the words "change the
final maturity date on such Mortgage Loan" in such line twelve: "or
permit any alteration, substitution or release of any collateral for
such Mortgage Loan."
6. The fourth and fifth paragraphs of Section 4.01 are hereby deleted
in their entirety and replaced with the following:
"Notwithstanding anything to the contrary in this Agreement,
the Company shall not waive any premium or penalty in connection with a
prepayment of principal of any Mortgage Loan, and shall not consent to
the modification of any Mortgage Note to the extent that such
modification relates to payment of a prepayment premium or penalty."
7. The following paragraph is hereby added at the end of Section 4.02:
"Notwithstanding the foregoing, in the event of any conflict
between the provisions of this Section 4.02 and the provisions of
Section 11.02, the provisions of Section 11.02 shall control."
8. The words "the Purchaser of Conventional Residential Adjustable and
Fixed Rate Mortgage Loans, Group No. 1997-LB/00" 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
SASCO 1998-6."
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 immediately following clause (viii):
"(viii) to reimburse itself for Monthly Advances of the
Company's funds made pursuant to Section 7.03, the Company's right to
reimburse itself pursuant to this subclause (viii) (x) being limited to
amounts received on the related Mortgage Loan which represent late
payments of principal and/or interest respecting which any such advance
was made, related Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, REO Property, and such other amounts as may be
collected by the Company from the Mortgagor or otherwise relating to
such Mortgage Loan, and (y) if, after the liquidation of such Mortgage
Loan, such amounts are insufficient to reimburse the Company for such
unreimbursed Monthly Advances, the Company may seek reimbursement from
other amounts in the Custodial Account, it being understood that, in
the case of any such reimbursement, the Company's right thereto shall
be prior to the rights of the Purchaser;
10. Section 4.05 is further amended by adding, immediately after the words
"unreimbursed Servicing Advances" in the first line of clause (ii), the
following: ", and for any unpaid Servicing Fees,".
11. The words "the Purchaser of Conventional Residential Adjustable and
Fixed Rate Mortgage Loans, Group No. 1997-LB/00" 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
SASCO 1998-6."
12. All references in Section 4.15 to the disposition of REO Properties
within a two year period are hereby deleted and replaced with a three
year period.
13. The first paragraph of Section 5.01 is hereby deleted and replaced
with the following:
"On each Remittance Date the Company 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 advances, if any, which the Company is obligated to make
pursuant to Section 7.03, minus (c) any amounts attributable to
Principal Prepayments, Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds or REO Disposition Proceeds received after the
applicable Prepayment Period, which amounts shall be remitted on the
following Remittance Date, together with any additional interest
required to be deposited in the Custodial Account in connection with
such Principal Prepayment in accordance with Section 7.04, and minus
(d) any amounts attributable to Monthly Payments collected but due
(giving effect to Section 5.03) 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."
14. Section 5.02 is hereby amended by deleting the words "Remittance Date"
in the first line of such Section, and substituting the following:
"tenth day of each month, or if such tenth day is not a Business Day,
the immediately preceding Business Day,"
15. Section 5.03 is hereby deleted in its entirety.
16. Section 6.03 is hereby amended by adding the following immediately
after the words "other ancillary fees" in the second paragraph of such
Section: ", but not including any premium or penalty associated with a
prepayment of principal of a Mortgage Loan."
17. The second paragraph of Section 11.02 is hereby deleted in its
entirely and replaced with the following:
"On the second Business Day of each month, the Company shall
orally inform the Master Servicer and the Special Servicer as to which
Mortgage Loans have become delinquent for a period of 61 days or more,
without giving effect to any grace period permitted by the related
Mortgage Note (each, a "Distressed Mortgage Loan"). Any such Mortgage
Loan as to which all past due payments are made prior to the Notice
Date shall not be considered to be a Distressed Mortgage Loan, and the
servicing thereof shall not be transferred as provided below. On the
fourth Business Day of each month (the "Notice Date"), the Company
shall send by facsimile a written listing of the Distressed Mortgage
Loans to the Master Servicer, the Trustee and the Custodian, and shall
mail to the Mortgagor of each Mortgage Loan listed in a Transfer Notice
a letter advising each such Mortgagor of the transfer of the servicing
of the related Mortgage Loan to the Special Servicer, in accordance
with the Cranston Gonzales National Affordable Housing Act of 1990;
provided, however, the content and format of such letter shall have the
prior approval of the Special Servicer. The Company shall promptly
provide the Special Servicer with copies of all such notices. The
transfer of servicing with respect to each such Mortgage Loan to the
Special Servicer shall be effected by the Company not later than the
fifteenth day following the applicable Notice Date (the "Transfer
Date"). By the Business Day immediately following each Notice Date, the
Company shall provide the Master Servicer, the Special Servicer, the
Trustee and the Custodian with a certification (the "Transfer Notice")
listing the Distressed Mortgage Loans.
At least five Business Days prior to each Transfer Date, the
Company shall deliver, with respect to the Distressed Mortgage Loans
listed on the related Transfer Notice, to the Special Servicer all
Servicing Files, and to the Special Servicer and the Master Servicer a
loan level tape or other electronic media containing loan set-up
information in form reasonably acceptable to the Master Servicer and
the Special Servicer. Within two Business Days following such Transfer
Date, the Servicer shall deliver a final trial balance (subject to
special claims), in form reasonably acceptable to the Master Servicer
and the Special Servicer, and commensurate with generally acceptable
industry standards, detailing the amount of any unreimbursed Monthly
Advances, Servicing Advances and accrued and unpaid Servicing Fees on a
loan level basis. Should the Master Servicer or the Special Servicer
desire a loan level tape or other electronic media containing
information which is not readily extractable from the Company's
servicing system, the Company shall reasonably cooperate to make such
loan level data available to the Master Servicer and Special Servicer.
In addition, no more than two Business Days after the Transfer Date,
the Company shall transfer to the Special Servicer any funds held in an
Escrow Account or Custodial Account relating to the Distressed Mortgage
Loans listed in the related Transfer Notice. Upon reasonable compliance
by the Company with the provisions of this Section regarding the
transfer of servicing for Distressed Mortgage Loans, the Special
Servicer will reimburse the Company within five Business Days for any
unreimbursed Monthly Advances, Servicing Advances and accrued and
unpaid Servicing Fees with respect to such Distressed Mortgage Loans
which have been properly documented. Notwithstanding anything herein to
the contrary, the transfer of servicing for Distressed Mortgage Loans
shall not require the payment of a termination fee therefor.
In connection with the transfer of any Distressed Mortgage
Loan, (i) the Company will be responsible for servicing the Distressed
Mortgage Loan until the effective date of transfer of servicing to the
Special Servicer, but shall have no right or obligation to service such
Distressed Mortgage Loan from and after the effective date of the
transfer of servicing to the Special Servicer, (ii) notwithstanding
clause (i) above, the Company shall include the Distressed Mortgage
Loan in its monthly remittance report pursuant to Section 5.02 for the
month in which such transfer is effected and shall be obligated,
subject to Section 7.03, to make the Monthly Advance with respect to
such Distressed Mortgage Loan on the Remittance Date in the month in
which such transfer is effected, in each case, regardless of whether
the Remittance Date occurs before or after the effective date of such
transfer, (iii) the amount of Monthly Advances to be reimbursed to the
Company by the Special Servicer hereunder shall include the Monthly
Advance described in clause (ii) above regardless of whether the
Company makes such Monthly Advance before or after the effective date
of such transfer, (iv) the Company shall, no later than the end of the
month in which such transfer is effected, provide to the Special
Servicer loan level information (in the loan level tape or other
electronic media or other agreed-upon form) regarding the Distressed
Mortgage Loan during the month of such transfer as may be necessary to
enable the Special Servicer to provide such information in its
remittance report for the next following month, and (v) the Company
shall be entitled to its pro rata portion of the Servicing Fee with
respect to any such Distressed Mortgage Loan for the month in which
such transfer occurs, based on the number of days in such month that
precede the Transfer Date."
18. The following paragraph is added at the end of Section 12.01:
"Neither the Master Servicer nor any successor servicer
(including the Purchaser and the Master Servicer) shall be liable for
any acts or omissions of the Company or any predecessor servicer. In
particular, neither the Master Servicer nor any successor servicer
(including the Purchaser and the Master Servicer) shall be liable for
any servicing errors or interruptions resulting from any failure of the
Company to maintain computer and other information systems that are
year-2000 compliant."
19. The following definition is hereby added:
"Prepayment Period: With respect to the first Remittance Date,
the period beginning on the Cut-off Date and ending on July 1. 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."
