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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 30, 1999
STRUCTURED ASSET MORTGAGE INVESTMENTS INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-51279 13-3633241
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
245 Park Avenue
New York, New York 10167
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code, is (212) 272-2000
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(a) Not applicable
(b) Not applicable
(c) Exhibits:
1. Pooling and Servicing Agreement, dated as of April 1, 1999
among Structured Asset Mortgage Investments Inc. as seller, Norwest Bank
Association, National Association as trustee and Cendant Mortgage Corporation
and IndyMac, Inc. as master servicers.
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-3-
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
STRUCTURED ASSET MORTGAGE
INVESTMENTS INC.
By: /s/ Mary Haggerty
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Name: Mary Haggerty
Title: Vice President
Dated: May 14, 1999
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EXHIBIT INDEX
Item 601 (a) of Sequentially
Exhibit Regulation S-K Numbered
Number Exhibit No. Description Page
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1 4 Pooling and Servicing 5
Agreement
EXHIBIT
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STRUCTURED ASSET MORTGAGE INVESTMENTS INC.,
SELLER,
CENDANT MORTGAGE CORPORATION,
a MASTER SERVICER,
INDYMAC, INC.
a MASTER SERVICER
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
TRUSTEE
__________________________________
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 1999
__________________________________
Structured Asset Mortgage Investments Trust 1999-2
Mortgage Pass-Through Certificates
Series 1999-2
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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Section 1.02. Determination of LIBOR.............................................................................44
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01. Conveyance of Mortgage Loans to Trustee..................................................45
Section 2.02. Acceptance of Mortgage Loans by Trustee..................................................47
Section 2.03. Representations, Warranties and Covenants of the Master Servicers........................49
Section 2.04. .........................................................................................50
Assignment of Interest in the Mortgage Loan Purchase Agreement...................................................50
Section 2.05. .........................................................................................51
Substitution of Mortgage Loans...................................................................................51
Section 2.06. .........................................................................................52
Representations and Warranties of the Trustee....................................................................52
Section 2.07. Issuance of Certificates.................................................................53
Section 2.08. Representations and Warranties Concerning the Seller.....................................53
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. Master Servicers to Assure Servicing.....................................................55
Section 3.02. Sub-servicing Agreements Between a Master Servicer and Sub-servicers
.................................................................................................................56
Section 3.03. Successor Sub-servicers..................................................................56
Section 3.04. Liability of Each Master Servicer........................................................57
Section 3.05. Assumption of Sub-servicing Agreements by Trustee........................................57
Section 3.06. Collection of Mortgage Loan Payments.....................................................58
Section 3.07. Collection of Taxes, Assessments and Similar Items; Servicing Accounts
.................................................................................................................59
Section 3.08. Access to Certain Documentation and Information Regarding the Mortgage
Loans............................................................................................................59
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Section 3.09. Maintenance of Primary Mortgage Insurance Policies; Collection Thereunder
60
Section 3.10. Maintenance of Hazard Insurance And Fidelity Coverage....................................60
Section 3.11. Due-on-sale Clauses; Assumption Agreements...............................................62
Section 3.12. Realization Upon Defaulted Mortgage Loans................................................63
Section 3.13. Trustee to Cooperate; Release of Mortgage Files..........................................64
Section 3.14. Servicing and Master Servicing Compensation..............................................65
Section 3.15. Annual Statement of Compliance...........................................................65
Section 3.16. Annual Independent Public Accountants' Servicing Report..................................66
Section 3.17. Remic-related Covenants..................................................................66
Section 3.18. Additional Information...................................................................67
Section 3.19. Periodic Filings with the Securities and Exchange Commission; Additional
Information......................................................................................................67
ARTICLE IV
Accounts
Section 4.01. Protected Accounts.......................................................................68
Section 4.02. Certificate Account......................................................................69
Section 4.03. Permitted Withdrawals and Transfers from the Certificate Account.........................71
ARTICLE V
Certificates
Section 5.01. Certificates.............................................................................75
Section 5.02. Registration of Transfer and Exchange of Certificates....................................81
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates........................................85
Section 5.04. Persons Deemed Owners....................................................................85
Section 5.05. Transfer Restrictions on Residual Certificates...........................................85
Section 5.06. Restrictions on Transferability of Private Certificates..................................87
Section 5.07. ERISA Restrictions.......................................................................87
Section 5.08. Rule 144A Information....................................................................88
ARTICLE VI
Payments to Certificateholders
Section 6.01. Distributions on the Certificates........................................................89
Section 6.02. Allocation of Losses.....................................................................96
Section 6.03. Payments.................................................................................99
Section 6.04. Statements to Certificateholders........................................................100
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Section 6.05. Reports to the Trustee and Each Master Servicer.........................................102
Section 6.06. Monthly Advances........................................................................104
Section 6.07. Compensating Interest Payments..........................................................105
Section 6.08. Reports of Foreclosures and Abandonment of Mortgaged Property...........................105
ARTICLE VII
Section 7.01. Liabilities of the Master Servicers.....................................................106
Section 7.02. Merger or Consolidation of the Master Servicers.........................................106
Section 7.03. Indemnification of the Trustee..........................................................106
Section 7.04. Limitation on Liability of the Master Servicers and Others..............................107
Section 7.05. Master Servicers Not to Resign..........................................................108
Section 7.06. Successor Master Servicers..............................................................108
Section 7.07. Sale and Assignment of Master Servicing.................................................108
ARTICLE VIII
Default
Section 8.01. Events of Default.......................................................................110
Section 8.02. Trustee to Act; Appointment of Successor................................................111
Section 8.03. Notification to Certificateholders......................................................112
Section 8.04. Waiver of Defaults......................................................................112
Section 8.05. List of Certificateholders..............................................................113
ARTICLE IX
Concerning the Trustee
Section 9.01. Duties of Trustee.......................................................................114
Section 9.02. Certain Matters Affecting the Trustee...................................................115
Section 9.03. Trustee Not Liable for Certificates or Mortgage Loans...................................117
Section 9.04. Trustee May Own Certificates............................................................117
Section 9.05. Fees and Expenses.......................................................................117
Section 9.06. Eligibility Requirements for Trustee....................................................118
Section 9.07. Insurance...............................................................................118
Section 9.08. Resignation and Removal of the Trustee..................................................119
Section 9.09. Successor Trustee.......................................................................119
Section 9.10. Merger or Consolidation of Trustee......................................................120
Section 9.11. Appointment of Co-trustee or Separate Trustee...........................................120
Section 9.12. Master Servicers Shall Provide Information as Reasonably Required.......................121
Section 9.13. Federal Information Returns and Reports to Certificateholders...........................121
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ARTICLE X
Termination
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Section 10.01. Termination Upon Repurchase by the Seller or its Designee or Liquidation
of the Mortgage Loans...........................................................................................124
Section 10.02. Additional Termination Requirements....................................................126
ARTICLE XI
Miscellaneous Provisions
Section 11.01. Intent of Parties......................................................................128
Section 11.02. Amendment..............................................................................128
Section 11.03. Recordation of Agreement...............................................................129
Section 11.04. Limitation on Rights of Certificateholders.............................................129
Section 11.05. Acts of Certificateholders.............................................................130
Section 11.06. Governing Law..........................................................................131
Section 11.07. Notices................................................................................131
Section 11.08. Severability of Provisions.............................................................132
Section 11.09. Successors and Assigns.................................................................132
Section 11.10. Article and Section Headings...........................................................132
Section 11.11. Counterparts...........................................................................132
Section 11.12. Notice to Rating Agencies..............................................................132
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EXHIBITS
Exhibit A-1 - Form of Senior Certificates
Exhibit A-2 - Form of Class 3-X Certificates
Exhibit A-3 - Form of Class B Certificates
Exhibit A-4 - Form of Class R Certificates
Exhibit B-1 - Group 1 Mortgage Loan Schedule
Exhibit B-2 - Group 2 Mortgage Loan Schedule
Exhibit B-3 - Group 3 Mortgage Loan Schedule
Exhibit C - Representations and Warranties of BSMCC Concerning
the Mortgage Loans
Exhibit D - Request for Release of Documents
Exhibit E - Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1 - Form of Investment Letter
Exhibit F-2 - Form of Rule 144A and Related Matters Certificate
Exhibit G - Form of Initial Certification
Exhibit H - Form of Final Certification
Exhibit I - Planned Principal Amounts and Targeted Principal Amounts
Exhibit J - List of Mortgage Loans for which Mortgage Notes are Lost
Exhibit K - Electronic Data File Information
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POOLING AND SERVICING AGREEMENT
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Pooling and Servicing Agreement dated as of April 1, 1999, among
Structured Asset Mortgage Investments Inc., a Delaware corporation, as the
seller (the "Seller"), Cendant Mortgage Corporation ("CMC"), as a Master
Servicer (in such capacity the "CMC Master Servicer"), IndyMac, Inc.
("IndyMac"), as a Master Servicer (in such capacity the "IndyMac Master
Servicer" and together with the CMC Master Servicer, the "Master Servicers") and
Norwest Bank Minnesota, National Association, a national banking association,
not in its individual capacity but solely as trustee (the "Trustee").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Seller has acquired the Mortgage
Loans from Bear Stearns Mortgage Capital Corporation ("BSMCC"). On the Closing
Date, the Seller will sell the Mortgage Loans and certain other property to the
Trust Fund and receive in consideration therefor Certificates evidencing the
entire beneficial ownership interest in Structured Asset Mortgage Investments
Trust, 1999-2, the Trust created hereby.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax purposes as a
REMIC. On the Startup Day, all the Classes of REMIC I Regular Interests will be
designated "regular interests" in such REMIC and the Class R-1 Certificate will
be designated the "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax purposes as a
REMIC. On the Startup Day, all the Classes of REMIC II Regular Interests will be
designated "regular interests" in such REMIC and the Class R-2 Certificate will
be designated the "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC III to be treated for federal income tax purposes as a
REMIC. On the Startup Day, all the Classes of REMIC III Regular Interests will
be designated "regular interests" in such REMIC and the Class R-3 Certificate
will be designated the "residual interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC IV to be treated for federal income tax purposes as a
REMIC. On the Startup Day, all the Classes of Certificates except for the
Residual Certificates will be designated "regular interests" in such REMIC and
the Class R-4 Certificate will be designated the "residual interests" in such
REMIC.
The Group 1, Group 2 and Group 3 Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$147,885,365, $49,852,167 and $98,364,248, respectively.
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In consideration of the mutual agreements herein contained, the
Seller, the Master Servicers and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article.
ACCOUNT: The Certificate Account (including each sub-account thereof),
the Protected Accounts, or the Servicing Accounts as the context may require.
ACCRUAL CERTIFICATES: The Class 1-A-8 Certificates and the TAC Accrual
Component.
ACCRUAL DISTRIBUTION AMOUNT: The sum of (i) the Class 1-A-8 Accrual
Distribution Amount and (ii) the TAC Accrual Component Accrual Distribution
Amount.
ACCRUED CERTIFICATE INTEREST: For any Certificate (other than a
Component Certificate) for any Distribution Date, the interest accrued during
the related Interest Accrual Period at the applicable Pass-Through Rate on the
Current Principal Amount (or in the case of the Class 3-X Certificates and the
Class B-6-X Certificates, the Notional Amount) of such Certificate immediately
prior to such Distribution Date. With respect to each Distribution Date, as to
the Class 1-A-5 Certificates, (i) in the case of the Scheduled IO Component,
interest equal to the Scheduled IO Component Strip, (ii) in the case of the TAC
Accrual Component, interest accrued during the related Interest Accrual Period
on such Component at the related Pass-Through Rate on the related principal
amount thereof, and (iii) in the case of the WAC IO Component, interest accrued
during the related Interest Accrual Period on such Component at the related
Pass-Through Rate on the related Notional Amount thereof. In each case, Accrued
Certificate Interest on any Class of Certificates or Components will be reduced
by (i) in the case of an interest bearing Senior Certificate, such Certificate's
share of any Net Interest Shortfall and (ii) in the case of a Subordinate
Certificate, such Certificate's share of any Net Interest Shortfall and the
interest portion of any Realized Losses allocated thereto pursuant to Section
6.02(g). With respect to the Accrual Certificates on each Distribution Date,
interest shortfalls allocable to such Certificates on such Distribution Date
will be so allocated by reducing the amount that is added to the Current
Principal Balances thereof, as applicable, in respect of Accrued Certificate
Interest pursuant to Sections 6.01(a)(i)(G) and (H), as applicable. Accrued
Certificate Interest for each Class or Component of the Certificates shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
ADJUSTMENT AMOUNT: For each anniversary of the Cut-off Date, the
"Adjustment Amount" for each Mortgage Loan Group shall be equal to the amount,
if any, by which the applicable Special Hazard Loss Amount (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the lesser of (A) an amount calculated by the Seller and approved by each
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related Rating Agency, which amount shall not be less than $500,000, and (B) the
greater of (x) 1.0% (or if greater than 1.0%, the highest percentage of Mortgage
Loans of the applicable Mortgage Loan Group by principal balance secured by
Mortgaged Properties in any California zip code) of the outstanding principal
balance of all the Mortgage Loans of the applicable Mortgage Loan Group on the
Distribution Date immediately preceding such anniversary and (y) twice the
outstanding principal balance of the Mortgage Loan of the applicable Mortgage
Loan Group which has the largest outstanding principal balance on the
Distribution Date immediately preceding such anniversary.
ADVANCING DATE: The Business Day preceding the related Distribution
Date.
AFFILIATE: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
AGREEMENT: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
ALLOCABLE SHARE: With respect to each Class of Subordinate
Certificates in each Certificate Group:
(a) as to any Distribution Date and amounts distributable
pursuant to clauses (i) and (iii) of the applicable Subordinate
Optimal Principal Amount for such Certificate Group, the fraction,
expressed as a percentage, the numerator of which is the Current
Principal Amount of such Class and the denominator of which is the
aggregate Current Principal Amount of all Classes of the Subordinate
Certificates of such Certificate Group; and
(b) as to any Distribution Date and amounts distributable
pursuant to clauses (ii), (iv) and (v) of the applicable Subordinate
Optimal Principal Amount for such Certificate Group, and as to each
Class of Subordinate Certificates of such Certificate Group (other
than the Class of Subordinate Certificates of such Certificate Group
having the lowest numerical designation as to which the Class
Prepayment Distribution Trigger shall not be applicable) for which (x)
the related Class Prepayment Distribution Trigger has been satisfied
on such Distribution Date, the fraction, expressed as a percentage,
the numerator of which is the Current Principal Amount of such Class
and the denominator of which is the aggregate Current Principal Amount
of all Classes of Subordinate Certificates of such Certificate Group
and (y) the related Class Prepayment Distribution Trigger has not been
satisfied on such Distribution Date, 0%; provided that if on a
Distribution Date, the Current Principal Amount of any Class of
Subordinate Certificates of such Certificate Group for which the
related Class Prepayment Distribution Trigger was satisfied on such
Distribution Date is
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reduced to zero, any amounts distributed pursuant to this clause (b),
to the extent of such Class's remaining Allocable Share, shall be
distributed to the remaining Classes of Subordinate Certificates of
such Certificate Group which satisfy the related Class Prepayment
Distribution Trigger and to the Subordinate Certificates having the
lowest numerical designation in reduction of their respective Current
Principal Amounts in the order of their numerical Class designations.
APPLICABLE CREDIT RATING: A credit rating of AAA, in the case of S&P,
a credit rating of AAA, in the case of DCR or a credit rating of AAA, in the
case of Fitch, for any long-term deposit or security, or a rating of A-1+, in
the case of S&P, D-1 in the case of DCR or F-1+, in the case of Fitch, for any
short-term deposit or security.
APPLICABLE STATE LAW: For purposes of Section 9.13(d), the Applicable
State Law shall be (a) the law of the State of New York, (b) the law of the
State of Minnesota and (c) such other state law whose applicability shall have
been brought to the attention of the Trustee by either (i) an Opinion of Counsel
delivered to it, or (ii) written notice from the appropriate taxing authority as
to the applicability of such state law.
APPRAISED VALUE: For any Mortgaged Property, the amount set forth as
the appraised value of such Mortgaged Property in an appraisal made for the
mortgage originator in connection with its origination of the related Mortgage
Loan.
ASSUMED FINAL DISTRIBUTION DATE: With respect to each Class of Group 1
Certificates, May 25, 2029, with respect to each Class of Group 2 Certificates,
April 25, 2029, and with respect to each Class of Group 3 Certificates, May 25,
2029.
AVAILABLE FUNDS: With respect to any Distribution Date, the sum of the
Group 1 Available Funds, the Group 2 Available Funds and the Group 3 Available
Funds for such Distribution Date.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. ss.ss. 101-1330.
BANKRUPTCY COVERAGE TERMINATION DATE: For each Mortgage Loan Group,
the Distribution Date upon which the applicable Bankruptcy Loss Amount for such
Group has been reduced to zero or a negative number.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction, as reported by the applicable Master
Servicer.
BANKRUPTCY LOSS AMOUNT: As of any Determination Date, the Bankruptcy
Loss Amount shall equal $100,000.00 for Mortgage Loan Group 1, $100,000.00 for
Mortgage Loan Group 2 and $100,000.00 for Mortgage Loan Group 3, in each case as
reduced by the aggregate amount of Bankruptcy Losses with respect to such
Mortgage Loan Group since the Cut-off Date.
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BOOK-ENTRY CERTIFICATES: Initially, all Classes of Certificates other
than the Residual Certificates and the Private Certificates.
BSMCC: Bear Stearns Mortgage Capital Corporation.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange is closed or on which banking
institutions in New York City, Maryland, Minnesota, New Jersey or California or
in the jurisdiction in which the Trustee or a Master Servicer is authorized or
obligated by law or executive order to be closed.
CERTIFICATE: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust Fund signed and countersigned by the
Trustee in substantially the forms annexed hereto as Exhibit A-1, A-2, A-3 and
A-4, with the blanks therein appropriately completed.
CERTIFICATE ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.02, which shall be denominated "Norwest Bank
Minnesota, National Association, as Trustee f/b/o holders of Structured Asset
Mortgage Investments Trust 1999-2 Mortgage Pass-Through Certificates, Series
1999-2--Certificate Account" which shall have three sub-accounts as provided in
Section 4.02.
CERTIFICATE ACCOUNT ADVANCE: As of any Determination Date, the amount
on deposit in a Protected Account which is not required to be transferred to the
Certificate Account for distribution during the calendar month in which such
Determination Date occurs but which is deposited in a sub-account of the
Certificate Account and used to make a distribution to Certificateholders during
such calendar month on account of Scheduled Payments on the Mortgage Loans due
on the Due Date for such month not being paid on or before such Determination
Date except insofar as such unpaid amounts are the result of application of the
Relief Act.
CERTIFICATE GROUP: The Group 1 Certificates, the Group 2 Certificates
or the Group 3 Certificates, as applicable.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
CERTIFICATE REGISTER: The register maintained pursuant to Section
5.02.
CERTIFICATEHOLDER: A Holder of a Certificate.
CERTIFICATES: The Senior Certificates and the Subordinate
Certificates.
CLASS: With respect to the Certificates, 1-A-1, 1-A-2, 1-A-3, 1-A-4,
1-A-5, 1-A-6, 1-A-7, 1-A-8, B-1, B-2, B-3, B-4, B-5, B-6-P, B-6-X, 2-A, 3-A,
3-X, 3-B-1, 3-B-2, 3-B-3, 3-B-4, 3-B-5, 3-B-6, R-1, R-2, R-3 and R-4.
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CLASS 1-A-8 ACCRUAL DISTRIBUTION AMOUNT: As defined in Section
6.01(a)(i)(H).
CLASS 3-X PREMIUM STRIP: The weighted average, as of the Due Date in
the month preceding the month in which such Distribution Date occurs, of the
Pool Strip Rates on the Group 3 Mortgage Loans in the Mortgage Pool.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: For a Class of Subordinate
Certificates in any Certificate Group for any Distribution Date, the Class
Prepayment Distribution Trigger is satisfied if the fraction (expressed as a
percentage), the numerator of which is the aggregate Current Principal Amount of
such Class and each Class of Subordinate Certificates in the same Certificate
Group subordinate thereto, if any, and the denominator of which is the Scheduled
Principal Balance of all of the Mortgage Loans in the related Mortgage Loan
Group as of the related Due Date, equals or exceeds such percentage calculated
as of the Closing Date.
CLOSING DATE: April 30, 1999.
CMC: Cendant Mortgage Corporation, or its successors in interest, and
all Affiliates thereof.
CMC MASTER SERVICER: CMC in its capacity as a Master Servicer
hereunder.
CMC MASTER SERVICING FEE: A fee of between 0.20% and 1.075% per annum,
as set forth in the Mortgage Loan Schedule, of the Outstanding Principal Balance
of each CMC Mortgage Loan from full payments of accrued interest on each such
Mortgage Loans as compensation for its activities under this Agreement. Any CMC
Master Servicing Fee in excess of 0.20% per annum will be set aside by the CMC
Master Servicer to pay for lender funded mortgage insurance and will not be
treated as servicing compensation to CMC and will not be available to make
Compensating Interest Payments.
CMC MORTGAGE LOANS: The Mortgage Loans in the aggregate principal
amount of $197,737,532 that were originated or acquired by CMC or Bishop's Gate
Residential Mortgage Trust (formerly known as Cendant Residential Mortgage
Trust), as indicated on the Mortgage Loan Schedules attached as Exhibit B-1 and
Exhibit B-2 hereto, and sold to SAMI pursuant to the Mortgage Loan Purchase
Agreement and subject to the CMC Sale and Servicing Agreement.
CMC SALE AND SERVICING AGREEMENT: Collectively, (A) the Purchase,
Warranties and Servicing Agreement between CMC and BSMCC, dated as of May 1,
1998, as such agreement relates to the CMC Mortgage Loans conveyed under that
Term Sheet dated March 29, 1999, and such Term Sheet and (B) the Purchase,
Warranties and Servicing Agreement between Bishop's Gate Residential Mortgage
Trust (formerly known as Cendant Residential Mortgage Trust) and BSMCC, dated as
of June 1, 1998, as such agreement relates to the CMC Mortgage Loans conveyed
under that Term Sheet dated March 29, 1999, and such Term Sheet, and as each may
be amended or supplemented from time to time.
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CODE: The Internal Revenue Code of 1986.
COMPENSATING INTEREST PAYMENTS: As defined in Section 6.07.
COMPONENT: With respect to the 1-A-5 Certificates: the Scheduled IO
Component, the TAC Accrual Component, the PO Component and the WAC IO Component.
COMPONENT CERTIFICATES: Class 1-A-5 Certificates.
COOPERATIVE: A corporation that has been formed for the purpose of
cooperative apartment ownership.
COOPERATIVE ASSETS: Shares issued by Cooperatives, the related Lease
and any other collateral securing the Cooperative Loans.
COOPERATIVE BUILDING: The building and other property owned by a
Cooperative.
COOPERATIVE LOAN: The indebtedness of a Mortgagor evidenced by a
Mortgage Note which is secured by Cooperative Assets and which is being sold to
the Purchaser pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Final Mortgage Loan Schedule.
COOPERATIVE UNIT: A specific dwelling unit in a Cooperative Building
as to which exclusive occupancy rights have been granted pursuant to a Lease.
CORPORATE TRUST OFFICE: The office of the Trustee at which at any
particular time its corporate trust business is administered, which office, at
the date of the execution of this Agreement, is located at Sixth and Marquette,
Minneapolis, Minnesota 55479-1026, ref: SAMI 1999-2.
CORRESPONDING CLASS: As indicated on the tables in Section 5.01(c).
CROSS-OVER DATE: With respect to the Group 1 and Group 2 Certificates,
the Group 1/Group 2 Cross-Over Date. With respect to the Group 3 Certificates,
the Group 3 Cross-Over Date.
CURRENT PRINCIPAL AMOUNT: With respect to any Certificate or Component
(other than an IO Component or a Class 3-X Certificate) as of any Distribution
Date, the initial principal amount of such Certificate or Component, as reduced
by (i) all amounts distributed on previous Distribution Dates on such
Certificate or Component with respect to principal, plus (ii) (a) in the case of
the TAC Accrual Component, an amount equal to the aggregate Accrued Certificate
Interest added to the Current Principal Balance of the Class 1-A-5 Certificates
(to the extent of the TAC Accrual Component) on each Distribution Date pursuant
to Section 6.01(a)(i)(G) and (b) in the case of the Class 1-A-8 Certificates, an
amount equal to the aggregate Accrued Certificate Interest added to the Current
Principal Balance of the Class 1-A-8 Certificates on each Distribution Date
pursuant to Section 6.01(a)(i)(H), less (iii) the principal portion of all
Realized Losses allocated prior to such
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Distribution Date to such Certificate or Component, taking account of the
applicable Loss Allocation Limitation applicable to the Certificate Group of
such Certificate or Component and (iv) in the case of a Subordinate Certificate
of a Certificate Group, such Certificate's pro rata share, if any, of the Group
1/Group 2 Subordinate Certificate Writedown Amount or Group 3 Subordinate
Certificate Writedown Amount, as applicable, and the PO Component Deferred
Payment Writedown Amount, if applicable, in each case for previous Distribution
Dates.
CUT-OFF DATE: April 1, 1999.
DCR: Duff & Phelps Credit Rating Co., or its successors in interest.
DEBT SERVICE REDUCTION: Any reduction of the Scheduled Payments which
a Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of
any proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
DEBTOR RELIEF LAWS: Any applicable liquidation, conservatorship,
receivership, bankruptcy, insolvency, rearrangement, moratorium, reorganization,
or similar debtor relief laws affecting the rights of creditors generally from
time to time in effect.
DEFAULTED MORTGAGE LOAN: Any Mortgage Loan as to which the Mortgagor
has failed to make unexcused payment in full of three or more consecutive
Scheduled Payments.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation of
the Mortgaged Property by a court of competent jurisdiction in an amount less
than the then outstanding indebtedness under the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code or any other
similar state law or other proceeding.
DEPOSITORY: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection 5.01(a)
hereof.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DESIGNATED DEPOSITORY INSTITUTION: A depository institution
(commercial bank, federal savings bank mutual savings bank or savings and loan
association) or trust company (which may include the Trustee), the deposits of
which are insured by the FDIC to the maximum extent provided by law.
DETERMINATION DATE: With respect to the CMC Mortgage Loans, the 18th
day of the month of the Distribution Date, or if such day is not a Business Day,
the following Business Day (but in
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<PAGE>
no event less than two Business Days prior to the related Distribution Date).
With respect to the IndyMac Mortgage Loans, the 18th day of the month of the
Distribution Date, or if such day is not a Business Day, the preceding Business
Day (but in no event less than two Business Days prior to the related
Distribution Date).
DISCOUNT GROUP 1 MORTGAGE LOAN: Any Group 1 Mortgage Loan with a Net
Rate less than 6.75%, per annum.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for the Federal Home Loan Mortgage Corporation or any successor
thereto, a majority of its board of directors is not selected by such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code or (v) any other Person so designated by the Owner Trustee based upon
an Opinion of Counsel that the holding of an ownership interest in a Owner Trust
Certificate by such Person may cause the Trust or any Person having an ownership
interest in the Owner Trust Certificate (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in a Owner Trust
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
DISTRIBUTION DATE: The 25th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 25th day is not
a Business Day, the Business Day immediately following.
DIVERTED AMOUNT: On any Distribution Date, an amount equal to any
Special Hazard Loss allocated to the Class 2-A Certificates for such date
pursuant to Section 6.02(b).
DTC CUSTODIAN: Norwest Bank Minnesota, National Association, or its
successors in interest as custodian for the Depository.
DUE DATE: With respect to each Mortgage Loan, the date in each month
on which its Scheduled Payment is due if such due date is the first day of a
month and otherwise is deemed to be the first day of the following month.
DUE PERIOD: With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which the
Distribution Date occurs and ending at the close of business on the first day of
the month in which the Distribution Date occurs.
9
<PAGE>
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EVENT OF DEFAULT: An event described in Section 8.01.
EXCESS BANKRUPTCY LOSS: Any Bankruptcy Loss, or portion thereof with
respect to a Group of Mortgage Loans, (i) occurring after the Bankruptcy
Coverage Termination Date or (ii) if on such date, in excess of the
then-applicable Bankruptcy Loss Amount.
EXCESS FRAUD LOSSES: Any Fraud Loss or portion thereof with respect to
a Group of Mortgage Loans (i) occurring after the Fraud Coverage Termination
Date with respect thereto or (ii) if on such date, in excess of the
then-applicable Fraud Loss Amount.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued
but unpaid interest at the related Mortgage Interest Rate through the last day
of the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
EXCESS LOSSES: Means, collectively, Excess Bankruptcy Losses, Excess
Fraud Losses and Excess Special Hazard Losses.
EXCESS SPECIAL HAZARD LOSSES: Any Special Hazard Loss or portion
thereof with respect to a Group of Mortgage Loans (i) occurring after the
Special Hazard Termination Date with respect thereto or (ii) if on such date, in
excess of the then-applicable Special Hazard Loss Amount.
FANNIE MAE: Fannie Mae (formerly the Federal National Mortgage
Association) or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FITCH: Fitch IBCA, Inc. or any successor thereto.
FRACTIONAL UNDIVIDED INTEREST: With respect to any Class of
Certificates (other than the Class 3-X Certificates or Class B-6-X Certificates)
or any Component (other than the IO Components), the fractional undivided
interest evidenced by any Certificate or Component of such Class the numerator
of which is the Current Principal Amount of such Certificate or such Component
and the denominator of which is the Current Principal Amount of such Class or
such Component. With respect to the Class 3-X Certificates or Class B-6-X
Certificates or the IO Components, the fractional undivided interest evidenced
by such Certificate or Component, the numerator of which is the Notional Amount
of such Certificate or Component and the denominator of which is the Notional
Amount of such Class or Component. With respect to the Certificates in the
aggregate, the fractional undivided interest evidenced by (i) the Class 3-X
Certificates and Class B-6-X Certificates will be
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<PAGE>
deemed to equal 1% multiplied by a fraction, the numerator of which is the
Notional Amount of such Certificate and the denominator of which is the Notional
Amount of all of the Certificates of the same Class, (ii) a Class R-1, Class
R-2, Class R-3 or Class R-4 Certificate will be deemed to equal 1% multiplied by
the Percentage Interest of such Certificate of such respective Class, as stated
on the face thereof and (iii) a Certificate of any other Class will be deemed to
equal 94% (plus an additional 1% if and when each Class of Notional Amount
Certificates has been paid in full prior to the date of determination)
multiplied by a fraction, the numerator of which is the Current Principal Amount
of such Certificate and the denominator of which is the Current Principal Amount
of all the Certificates.
FRAUD COVERAGE TERMINATION DATE: For any Mortgage Loan Group, the
Distribution Date upon which the applicable Fraud Loss Amount has been reduced
to zero or a negative number.
FRAUD LOSS: Any Realized Loss attributable to fraud in the origination
of the related Mortgage Loan, as reported by the applicable Sub-Servicer to the
Master Servicer.
FRAUD LOSS AMOUNT: Upon the initial issuance of the Certificates, (i)
1.0% of the aggregate Scheduled Principal Balances of the Group 1 Mortgage Loans
as of the Cut-off Date, (ii) 1.0% of the aggregate Scheduled Principal Balances
of the Group 2 Mortgage Loans as of the Cut-off Date and (iii) 3.0% of the
aggregate Scheduled Principal Balances of the Group 3 Mortgage Loans as of the
Cut-off Date. As of any Distribution Date prior to the first anniversary of the
Cut-off Date, the Fraud Loss Amount for each Mortgage Loan Group will equal the
initial Fraud Loss Amount, minus the aggregate amount of Fraud Losses that would
have been allocated to the Subordinate Certificates of the related Certificate
Group in the absence of the Loss Allocation Limitation since the Cut-off Date.
As of any Distribution Date (x) from the first through the third
anniversaries of the Cut-off Date, the Fraud Loss Amount for Mortgage Loan Group
1 and Mortgage Loan Group 2 will equal (1) the lesser of (a) the applicable
Fraud Loss Amount as of the most recent anniversary of the Cutoff Date and (b)
1.0% of the aggregate outstanding principal balance of all of the Mortgage Loans
of such Mortgage Loan Group as of the most recent anniversary of the Cut-off
Date minus (2) the Fraud Losses that would have been allocated to the Group 1
Subordinate Certificates or Group 2 Subordinate Certificates, as applicable, in
the absence of the applicable Loss Allocation Limitation since the most recent
anniversary of the Cut-off Date; and (y) after the third and through the fifth
anniversary of the Cut-off Date, the Fraud Loss Amount for Mortgage Loan Group 1
and Mortgage Loan Group 2 will equal (i) the lesser of (a) the applicable Fraud
Loss Amount as of the most recent anniversary of the Cut-off Date and (b) 0.50%
of the aggregate outstanding principal balance of all Mortgage Loans of such
Mortgage Loan Group as of the most recent anniversary of the Cut-off Date minus
(2) the Fraud Losses that would have been allocated to the Group 1 Subordinate
Certificates and Group 2 Subordinate Certificates, as applicable, in the absence
of the applicable Loss Allocation Limitation since the most recent anniversary
of the Cut-off Date.
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<PAGE>
As of any Distribution Date (x) from the first through the second
anniversaries of the Cut-off Date, the Fraud Loss Amount for Mortgage Loan Group
3 will equal (1) the lesser of (a) the applicable Fraud Loss Amount as of the
most recent anniversary of the Cut-off Date and (b) 2.0% of the aggregate
outstanding principal balance of all of the Group 3 Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the Fraud Losses that
would have been allocated to the Group 3 Subordinate Certificates in the absence
of the applicable Loss Allocation Limitation since the most recent anniversary
of the Cut-off Date; and (y) after the second and through the fifth anniversary
of the Cut-off Date, the Fraud Loss Amount for Mortgage Loan Group 3 will equal
(i) the lesser of (a) the applicable Fraud Loss Amount as of the most recent
anniversary of the Cut-off Date and (b) 1.00% of the aggregate outstanding
principal balance of all Group 3 Mortgage Loans as of the most recent
anniversary of the Cut-off Date minus (2) the Fraud Losses that would have been
allocated to the Group 3 Subordinate Certificates in the absence of the
applicable Loss Allocation Limitation since the most recent anniversary of the
Cut-off Date.
After the fifth anniversary of the Cut-off Date, the Fraud Loss Amount
for each Mortgage Loan Group shall be zero.
FREDDIE MAC: Freddie Mac (formerly the Federal Home Loan Mortgage
Corporation) or any successor thereto.
FUNDS TRANSFER DATE: In the case of each Master Servicer, the 18th day
in each month or if such day is not a Business Day, the preceding Business Day.
GLOBAL CERTIFICATE: Any Private Certificate registered in the name of
the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining an account
with such Depository (directly or as an indirect participant in accordance with
the rules of such depository). As of the Closing Date, there will be no Global
Certificate.
GROUP AVAILABLE FUNDS: Reference to either the Group 1 Available
Funds, Group 2 Available Funds or Group 3 Available Funds.
GROUP 1 AVAILABLE FUNDS, GROUP 2 AVAILABLE FUNDS and GROUP 3 AVAILABLE
FUNDS: With respect to any Distribution Date, an amount equal to the aggregate
of the following amounts with respect to the Mortgage Loans in Mortgage Loan
Group 1, Mortgage Loan Group 2 and Mortgage Loan Group 3, respectively: (a) all
previously undistributed payments on account of principal (including the
principal portion of Scheduled Payments, Principal Prepayments and the principal
portion of Net Liquidation Proceeds) and all previously undistributed payments
on account of interest received after the Cut-off Date and on or prior to the
related Determination Date, and (b) any Monthly Advances (including Certificate
Account Advances) and Compensating Interest Payments by the Master Servicers or
a Sub-Servicer with respect to such Distribution Date, except:
(i) all payments that were due on or before the Cut-off Date;
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<PAGE>
(ii) all Principal Prepayments and Liquidation Proceeds received
after the applicable Prepayment Period;
(iii) all payments, other than Principal Prepayments, that
represent early receipt of Scheduled Payments due on a date or dates
subsequent to the related Due Date;
(iv) amounts received on particular Mortgage Loans as late
payments of principal or interest and respecting which, and to the
extent that, there are any unreimbursed Monthly Advances (including
Certificate Account Advances);
(v) amounts of Monthly Advances (including Certificate Account
Advances) determined to be Nonrecoverable Advances; and
(vi) amounts permitted to be withdrawn from the Certificate
Account pursuant to Subsection 4.03(a).
In addition on each Distribution Date, the Group 2 Available Funds
shall be increased, and the Group 3 Available Funds shall be decreased, by any
Diverted Amount.
GROUP 1 CERTIFICATES: The Group 1 Senior Certificates and the Group 1
Subordinate Certificates.
GROUP 2 CERTIFICATES: The Group 2 Senior Certificates and the Group 2
Subordinate Certificates.
GROUP 3 CERTIFICATES: The Group 2 Senior Certificates and the Group 2
Subordinate Certificates.
GROUP 1/GROUP 2 CROSS-OVER DATE: The first Distribution Date on which
the aggregate Current Principal Amount of the Group 1 and Group 2 Subordinate
Certificates has been reduced to zero (giving effect to all distributions on
such Distribution Date).
GROUP 3 CROSS-OVER DATE: The first Distribution Date on which the
aggregate Current Principal Amount of the Group 3 Subordinate Certificates has
been reduced to zero (giving effect to all distributions on such Distribution
Date).
GROUP 1 CUT-OFF DATE BALANCE: $147,885,365.
GROUP 2 CUT-OFF DATE BALANCE: $49,852,167.
GROUP 3 CUT-OFF DATE BALANCE: $98,364,248.
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<PAGE>
GROUP 1/GROUP 2 LOSS ALLOCATION LIMITATION: The meaning specified in
Section 6.02(b)(G)(i) hereof.
GROUP 3 LOSS ALLOCATION LIMITATION: The meaning specified in Section
6.02(b)(G)(ii) hereof.
GROUP 1 MORTGAGE LOANS: The Mortgage Loans identified as such in the
applicable column of the Mortgage Loan Schedules attached hereto as Exhibit B-1.
GROUP 2 MORTGAGE LOANS: The Mortgage Loans identified as such in the
applicable column of the Mortgage Loan Schedules attached hereto as Exhibit B-2.
GROUP 3 MORTGAGE LOANS: The Mortgage Loans identified as such in the
applicable column of the Mortgage Loan Schedules attached hereto as Exhibit B-3.
GROUP 1/GROUP 2 ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The sum of the
aggregate Current Principal Amounts of each Class of Group 1 Subordinate
Certificates as of the Cut-off Date.
GROUP 3 ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The sum of the
aggregate Current Principal Amounts of each Class of Group 3 Subordinate
Certificates as of the Cut-off Date.
GROUP 1 SENIOR CERTIFICATES: The Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
R-1 and Class R-4 Certificates.
GROUP 2 SENIOR CERTIFICATES: The Class 2-A and Class R-2 Certificates.
GROUP 3 SENIOR CERTIFICATES: The Class 3-A, Class 3-X and Class R-3
Certificates.
GROUP 1 SENIOR P&I CERTIFICATES: The Group 1 Senior Certificates
(other than the IO Components and PO Component).
GROUP 2 SENIOR P&I CERTIFICATES: The Group 2 Senior Certificates.
GROUP 3 SENIOR P&I CERTIFICATES: The Group 3 Senior Certificates
(other than the Class 3-X Certificates.
GROUP 1 SENIOR P&I OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum of the following (but in no event greater than
the aggregate Current Principal Amounts of the Group 1 Senior Certificates
immediately prior to such Distribution Date):
(i) the applicable Senior Percentage of the applicable Non-PO
Percentage of the Scheduled Principal due on each Group 1 Mortgage
Loan on the related Due Date as specified in the amortization schedule
at the time applicable thereto (after adjustments for previous
Principal Prepayments but before any adjustment to such amortization
schedule by
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<PAGE>
reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the applicable Senior Prepayment Percentage of the
applicable Non-PO Percentage of all Voluntary Principal Prepayments in
part received during the related Prepayment Period with respect to
each Group 1 Mortgage Loan, together with the applicable Senior
Prepayment Percentage of the applicable Non-PO Percentage of the
Scheduled Principal Balance of each Group 1 Mortgage Loan which was
the subject of a Voluntary Principal Prepayment in full during the
related Prepayment Period;
(iii) the lesser of (a) the applicable Senior Prepayment
Percentage of the applicable Non-PO Percentage of the sum of (A) all
Net Liquidation Proceeds allocable to principal received in respect of
each Group 1 Mortgage Loan which became a Liquidated Mortgage Loan
during the related Prepayment Period (other than Mortgage Loans
described in the immediately following clause (B)) and (B) the
Scheduled Principal Balance of each Group 1 Mortgage Loan purchased by
an Insurer from the Trustee during the related Prepayment Period,
pursuant to the related Primary Mortgage Insurance Policy, if any, or
otherwise; and (b) the applicable Senior Percentage of the applicable
Non-PO Percentage of the sum of (A) the Scheduled Principal Balance of
each Group 1 Mortgage Loan which became a Liquidated Mortgage Loan
during the related Prepayment Period (other than the Mortgage Loans
described in the immediately following clause (B)) and (B) the
Scheduled Principal Balance of each Group 1 Mortgage Loan that was
purchased by an Insurer from the Trustee during the related Prepayment
Period pursuant to the related Primary Mortgage Insurance Policy, if
any, or otherwise, less (C) in the case of clause (b), the applicable
Senior Percentage of the Non-PO Percentage of the principal portion of
Excess Losses (other than Debt Service Reductions) on each Group 1
Mortgage Loan incurred during the related Prepayment Period;
(iv) the applicable Senior Prepayment Percentage of the
applicable Non-PO Percentage of the Scheduled Principal Balance of
each Group 1 Mortgage Loan or REO Property which was purchased by
BSMCC or a Master Servicer on such Distribution Date pursuant to
Section 2.02 or 2.04(b); and
(v) the applicable Senior Prepayment Percentage of the applicable
Non-PO Percentage of the excess, if any, of the Scheduled Principal
Balance of a Group 1 Mortgage Loan that has been replaced by BSMCC or
a Master Servicer with a Substitute Mortgage Loan pursuant to Section
2.05 on such Distribution Date over the Scheduled Principal Balance of
such Substitute Mortgage Loan.
GROUP 2 SENIOR P&I OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum of the following (but in no event greater than
the aggregate Current Principal Amounts of the Group 2 Senior Certificates
immediately prior to such Distribution Date):
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<PAGE>
(i) the applicable Senior Percentage of the Scheduled Principal
due on each Group 2 Mortgage Loan on the related Due Date as specified
in the amortization schedule at the time applicable thereto (after
adjustments for previous Principal Prepayments but before any
adjustment to such amortization schedule by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace
period);
(ii) the applicable Senior Prepayment Percentage of all Voluntary
Principal Prepayments in part received during the related Prepayment
Period with respect to each Group 2 Mortgage Loan, together with the
applicable Senior Prepayment Percentage of the Scheduled Principal
Balance of each Group 2 Mortgage Loan which was the subject of a
Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the lesser of (a) the applicable Senior Prepayment
Percentage of the sum of (A) all Net Liquidation Proceeds allocable to
principal received in respect of each Group 2 Mortgage Loan which
became a Liquidated Mortgage Loan during the related Prepayment Period
(other than Mortgage Loans described in the immediately following
clause (B)) and (B) the Scheduled Principal Balance of each Group 2
Mortgage Loan purchased by an Insurer from the Trustee during the
related Prepayment Period, pursuant to the related Primary Mortgage
Insurance Policy, if any, or otherwise; and (b) the applicable Senior
Percentage of the sum of (A) the Scheduled Principal Balance of each
Group 2 Mortgage Loan which became a Liquidated Mortgage Loan during
the related Prepayment Period (other than the Mortgage Loans described
in the immediately following clause (B)) and (B) the Scheduled
Principal Balance of each Group 2 Mortgage Loan that was purchased by
an Insurer from the Trustee during the related Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any, or
otherwise, less (C) in the case of clause (b), the applicable Senior
Percentage of the principal portion of Excess Losses (other than Debt
Service Reductions) on each Group 2 Mortgage Loan incurred during the
related Prepayment Period;
(iv) the applicable Senior Prepayment Percentage of the Scheduled
Principal Balance of each Group 2 Mortgage Loan or REO Property which
was purchased by BSMCC or a Master Servicer on such Distribution Date
pursuant to Section 2.02 or 2.04(b); and
(v) the applicable Senior Prepayment Percentage of the excess, if
any, of the Scheduled Principal Balance of a Group 2 Mortgage Loan
that has been replaced by BSMCC or a Master Servicer with a Substitute
Mortgage Loan pursuant to Section 2.05 on such Distribution Date over
the Scheduled Principal Balance of such Substitute Mortgage Loan;
MINUS
(vi) any Diverted Amount for such Distribution Date.
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<PAGE>
GROUP 3 SENIOR P&I OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum of the following (but in no event greater than
the aggregate Current Principal Amounts of the Group 3 Senior immediately prior
to such Distribution Date):
(i) the applicable Senior Percentage of the Scheduled Principal
due on each Group 3 Mortgage Loan on the related Due Date as specified
in the amortization schedule at the time applicable thereto (after
adjustments for previous Principal Prepayments but before any
adjustment to such amortization schedule by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace
period);
(ii) the applicable Senior Prepayment Percentage of all Voluntary
Principal Prepayments in part received during the related Prepayment
Period with respect to each Group 3 Mortgage Loan, together with the
applicable Senior Prepayment Percentage of the Scheduled Principal
Balance of each Group 3 Mortgage Loan which was the subject of a
Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the lesser of (a) the applicable Senior Prepayment
Percentage of the sum of (A) all Net Liquidation Proceeds allocable to
principal received in respect of each Group 3 Mortgage Loan which
became a Liquidated Mortgage Loan during the related Prepayment Period
(other than Mortgage Loans described in the immediately following
clause (B)) and (B) the Scheduled Principal Balance of each Group 3
Mortgage Loan purchased by an Insurer from the Trustee during the
related Prepayment Period, pursuant to the related Primary Mortgage
Insurance Policy, if any, or otherwise; and (b) the applicable Senior
Percentage of the sum of (A) the Scheduled Principal Balance of each
Group 3 Mortgage Loan which became a Liquidated Mortgage Loan during
the related Prepayment Period (other than the Mortgage Loans described
in the immediately following clause (B)) and (B) the Scheduled
Principal Balance of each Group 3 Mortgage Loan that was purchased by
an Insurer from the Trustee during the related Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any, or
otherwise, less (C) in the case of clause (b), the applicable Senior
Percentage of the principal portion of Excess Losses (other than Debt
Service Reductions) on each Group 3 Mortgage Loan incurred during the
related Prepayment Period;
(iv) the applicable Senior Prepayment Percentage of the Scheduled
Principal Balance of each Group 3 Mortgage Loan or REO Property which
was purchased by BSMCC or a Master Servicer on such Distribution Date
pursuant to Section 2.02 or 2.04(b);
(v) the applicable Senior Prepayment Percentage of the excess, if
any, of the Scheduled Principal Balance of a Group 3 Mortgage Loan
that has been replaced by BSMCC or a Master Servicer with a Substitute
Mortgage Loan pursuant to Section 2.05 on such Distribution Date over
the Scheduled Principal Balance of such Substitute Mortgage Loan; and
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<PAGE>
(vi) any Diverted Amount for such Distribution Date.
GROUP 1 SENIOR PERCENTAGE: Initially, approximately 96.37%. On any
Distribution Date, the lesser of (i) 100% and (ii) the percentage (carried to
six places rounded up) obtained by dividing the aggregate Current Principal
Amounts of all the Group 1 Senior P&I Certificates immediately preceding such
Distribution Date by the aggregate Scheduled Principal Balance of the Group 1
Mortgage Loans (other than the Principal Only Percentage thereof) as of the
beginning of the related Due Period.
GROUP 2 SENIOR PERCENTAGE: Initially, approximately 96.40%. On any
Distribution Date, the lesser of (i) 100% and (ii) the percentage (carried to
six places rounded up) obtained by dividing the aggregate Current Principal
Amounts of all Group 2 Senior P&I Certificates immediately preceding such
Distribution Date by the aggregate Scheduled Principal Balance of the Group 2
Mortgage Loans as of the beginning of the related Due Period.
GROUP 3 SENIOR PERCENTAGE: Initially, approximately 89.00%. On any
Distribution Date, the lesser of (i) 100% and (ii) the percentage (carried to
six places rounded up) obtained by dividing the aggregate Current Principal
Amounts of all Group 3 Senior P&I Certificates immediately preceding such
Distribution Date by the aggregate Scheduled Principal Balance of the Group 3
Mortgage Loans as of the beginning of the related Due Period.
GROUP 1 SENIOR PREPAYMENT PERCENTAGE, GROUP 2 SENIOR PREPAYMENT
PERCENTAGE or GROUP 3 SENIOR PREPAYMENT PERCENTAGE: On any Distribution Date
occurring during the periods set forth below, as follows:
<TABLE>
<CAPTION>
Period (dates inclusive) Senior Prepayment Percentage
- ---------------------------------------------------------------------------------------
<S> <C>
May 25, 1999 - April 25, 2004 100%
May 25, 2004 - April 25, 2005 Applicable Senior Percentage for the related
Certificate Group plus 70% of the applicable
Subordinate Percentage for such Certificate Group
May 25, 2005 - April 25, 2006 Applicable Senior Percentage for the related
Certificate Group plus 60% of the applicable
Subordinate Percentage for such Certificate Group
May 25, 2006 - April 25, 2007 Applicable Senior Percentage for the related
Certificate Group plus 40% of the applicable
Subordinate Percentage for such Certificate Group
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
Period (dates inclusive) Senior Prepayment Percentage
- ---------------------------------------------------------------------------------------
<S> <C>
May 25, 2007 - April 25, 2008 Applicable Senior Percentage for the related
Certificate Group plus 20% of the applicable
Subordinate Percentage for such Certificate Group
May 25, 2008 and thereafter Applicable Senior Percentage for the related
Certificate Group.
</TABLE>
Notwithstanding the foregoing, if on any Distribution Date, (i) the percentage,
the numerator of which is the aggregate Current Principal Amount of the Group 1
Senior P&I Certificates and the Group 2 Senior Certificates immediately
preceding such Distribution Date, and the denominator of which is the sum of the
Scheduled Principal Balances of the Group 1 and Group 2 Mortgage Loans (other
than the PO Percentage thereof, with respect to the Discount Group 1 Mortgage
Loans) as of the beginning of the related Due Period, exceeds such percentage as
of the Cut-off Date, the Senior Prepayment Percentage with respect to the Group
1 Certificates and Group 2 Certificates for such Distribution Date will equal
100%, and/or (ii) the Senior Percentage for the Group 3 Certificates exceeds the
Senior Percentage for the Group 3 Certificates as of the Cut-off Date, the
Senior Prepayment Percentage with respect to the Group 3 Certificates for such
Distribution Date will equal 100%. On the Distribution Date on which the Current
Principal Amounts of the Senior Certificates of a Certificate Group are reduced
to zero, the Senior Prepayment Percentage for such Certificate Group shall be
the minimum percentage sufficient to effect such reduction and thereafter shall
be zero.
In addition, no reduction of the Senior Prepayment Percentage for the Group 1
Certificates or Group 2 Certificates shall occur on any Distribution Date
unless, as of the last day of the month preceding such Distribution Date, either
(A) (i) (x) the aggregate Scheduled Principal Balance of the Group 1 and Group 2
Mortgage Loans delinquent 60 days or more (including for this purpose any such
Mortgage Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust), averaged over the
last six months, as a percentage of the sum of the aggregate Current Principal
Amount of the related Subordinate Certificates does not exceed 50%, or (y) the
aggregate Scheduled Principal Balance of Group 1 and Group 2 Mortgage Loans
delinquent 60 days or more (including for this purpose any such Mortgage Loans
in foreclosure and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the aggregate Scheduled Principal Balances of the
Group 1 and Group 2 Mortgage Loans averaged over the last six months, does not
exceed 2.0%; and (ii) cumulative Realized Losses on such Mortgage Loans do not
exceed (a) 30% of the Group 1/Group 2 Original Subordinate Principal Balance if
such Distribution Date occurs between and including May 2004 and April 2005, (b)
35% of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2005 and April 2006, (c) 40%
of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2006 and April 2007, (d) 45%
of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2007 and April 2008, and (e)
50% of the Group 1/Group 2 Original Subordinate
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Principal Balance if such Distribution Date occurs during or after May 2008; or
(B) (i) the aggregate Scheduled Principal Balance of Group 1 and Group 2
Mortgage Loans delinquent 60 days or more (including for this purpose any such
Mortgage Loans in foreclosure and such Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust), averaged over the
last six months, does not exceed 4.0% of the then-current aggregate Scheduled
Principal Balance of such Mortgage Loans; and (ii) cumulative Realized Losses on
such Mortgage Loans do not exceed (a) 10% of the aggregate Current Principal
Amounts of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2004 and April 2005, (b) 15%
of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2005 and April 2006, (c) 20%
of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2006 and April 2007, (d) 25%
of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2007 and April 2008, and (e)
30% of the Group 1/Group 2 Original Subordinate Principal Balance if such
Distribution Date occurs during or after May 2008.
In addition, no reduction of the Senior Prepayment Percentage for the Group 3
Certificates shall occur on any Distribution Date unless, as of the last day of
the month preceding such Distribution Date, either (A) (i) (x) the aggregate
Scheduled Principal Balance of the Group 3 Mortgage Loans delinquent 60 days or
more (including for this purpose any such Mortgage Loans in foreclosure and
Mortgage Loans with respect to which the related Mortgaged Property has been
acquired by the Trust), averaged over the last six months, as a percentage of
the sum of the aggregate Current Principal Amount of the Group 3 Subordinate
Certificates does not exceed 50%, or (y) the aggregate Scheduled Principal
Balance of Group 3 Mortgage Loans delinquent 60 days or more (including for this
purpose any such Mortgage Loans in foreclosure and such Mortgage Loans with
respect to which the related Mortgaged Property has been acquired by the Trust),
averaged over the last six months, as a percentage of the aggregate Scheduled
Principal Balances of the Group 3 Mortgage Loans averaged over the last six
months, does not exceed 2.0%; and (ii) cumulative Realized Losses on such
Mortgage Loans do not exceed (a) 30% of the Group 3 Original Subordinate
Principal Balance if such Distribution Date occurs between and including May
2004 and April 2005, (b) 35% of the Group 3 Original Subordinate Principal
Balance if such Distribution Date occurs between and including May 2005 and
April 2006, (c) 40% of the Group 3 Original Subordinate Principal Balance if
such Distribution Date occurs between and including May 2006 and April 2007, (d)
45% of the Group 3 Original Subordinate Principal Balance if such Distribution
Date occurs between and including May 2007 and April 2008, and (e) 50% of the
Group 3 Original Subordinate Principal Balance if such Distribution Date occurs
during or after May 2008; or (B) (i) the aggregate Scheduled Principal Balance
of Group 3 Mortgage Loans delinquent 60 days or more (including for this purpose
any such Mortgage Loans in foreclosure and such Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by the Trust), averaged
over the last six months, does not exceed 4.0% of the then-current aggregate
Scheduled Principal Balance of such Mortgage Loans; and (ii) cumulative Realized
Losses on such Mortgage Loans do not exceed (a) 10% of the aggregate Current
Principal Amounts of the Group 3 Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2004 and April 2005, (b) 15%
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of the Group 3 Original Subordinate Principal Balance if such Distribution Date
occurs between and including May 2005 and April 2006, (c) 20% of the Group 3
Original Subordinate Principal Balance if such Distribution Date occurs between
and including May 2006 and April 2007, (d) 25% of the Group 3 Original
Subordinate Principal Balance if such Distribution Date occurs between and
including May 2007 and April 2008, and (e) 30% of the Group 3 Original
Subordinate Principal Balance if such Distribution Date occurs during or after
May 2008.
GROUP 1 SUBORDINATE CERTIFICATES: The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates.
GROUP 2 SUBORDINATE CERTIFICATES: The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates.
GROUP 3 SUBORDINATE CERTIFICATES: The Class 3-B-1, Class 3-B-2, Class
3-B-3, Class 3-B-4, Class 3-B-5 and Class 3-B-6 Certificates.
GROUP 1/GROUP 2 SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: As to any
Distribution Date, the amount by which (a) the sum of the Current Principal
Amounts of all of the Group 1 Certificates and Group 2 Certificates (after
giving effect to the distribution of principal and the allocation of applicable
Realized Losses and any applicable PO Component Deferred Payment Writedown
Amount with respect to the PO Component in reduction of the Current Principal
Amounts of such Certificates on such Distribution Date) exceeds (b) the
aggregate Scheduled Principal Balances of the Group 1 Mortgage Loans and Group 2
Mortgage Loans on the Due Date related to such Distribution Date.
GROUP 3 SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: As to any
Distribution Date, the amount by which (a) the sum of the Current Principal
Amounts of all of the Group 3 Certificates (after giving effect to the
distribution of principal and the allocation of applicable Realized Losses in
reduction of the Current Principal Amounts of such Certificates on such
Distribution Date) exceeds (b) the aggregate Scheduled Principal Balances of the
Group 3 Mortgage Loans on the Due Date related to such Distribution Date.
GROUP 1 SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum, without duplication, of the following (but in
no event greater than the aggregate Current Principal Amounts of the Group 1
Subordinate Certificates immediately prior to such Distribution Date):
(i) the applicable Subordinate Percentage of the applicable
Non-PO Percentage of the Scheduled Principal due on each Group 1
Mortgage Loan on the related Due Date, as specified in the
amortization schedule at the time applicable thereto (after adjustment
for previous Principal Prepayments but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period);
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(ii) the applicable Subordinate Prepayment Percentage of the
applicable Non-PO Percentage of each Voluntary Principal Payment in
part during the related Prepayment Period with respect to each Group 1
Mortgage Loan and the applicable Subordinate Prepayment Percentage of
the applicable Non-PO Percentage of the Scheduled Principal Balance of
each Group 1 Mortgage Loan that was the subject of a Voluntary
Principal Prepayment in full during the related Prepayment Period;
(iii) the excess, if any, of the applicable Non-PO Percentage of
(A) all Net Liquidation Proceeds allocable to principal received
during the related Prepayment Period over (B) the sum of the amounts
distributable pursuant to clause (iii) of the definition of Group 1
Senior P&I Optimal Principal Amount and clause (iv) of the definition
of the applicable PO Component Distribution Amount, on such
Distribution Date;
(iv) the applicable Subordinate Prepayment Percentage of the
applicable Non-PO Percentage of the sum of (a) the Scheduled Principal
Balance of each Group 1 Mortgage Loan which was purchased by BSMCC or
a Master Servicer on such Distribution Date pursuant to Section 2.02
or 2.04(b) and (b) the difference, if any, between the Scheduled
Principal Balance of a Group 1 Mortgage Loan that has been replaced by
BSMCC or a Master Servicer with a substitute Mortgage Loan pursuant to
Section 2.05 on such Distribution Date over the Scheduled Principal
Balance of such substitute Mortgage Loan; and
(v) on the Distribution Date on which the Current Principal
Amounts of the Group 1 Senior P&I Certificates have all been reduced
to zero, 100% of any Group 1 Senior P&I Optimal Principal Amount.
After the aggregate current Principal Amounts of the Group 1 Subordinate
Certificates have been reduced to zero, the Group 1 Subordinate Optimal
Principal Amount shall be zero.
GROUP 2 SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum, without duplication, of the following (but in
no event greater than the aggregate Current Principal Amounts of the Group 2
Subordinate Certificates immediately prior to such Distribution Date):
(i) the applicable Subordinate Percentage of the Scheduled
Principal due on each Group 2 Mortgage Loan on the related Due Date,
as specified in the amortization schedule at the time applicable
thereto (after adjustment for previous Principal Prepayments but
before any adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver
or grace period);
(ii) the applicable Subordinate Prepayment Percentage of each
Voluntary Principal Payment in part during the related Prepayment
Period with respect to each Group 2 Mortgage Loan and the applicable
Subordinate Prepayment Percentage of the Scheduled Principal
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Balance of each Group 2 Mortgage Loan that was the subject of a
Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the excess, if any, of (A) all Net Liquidation Proceeds
allocable to principal received during the related Prepayment Period
over (B) the sum of the amounts distributable pursuant to clause (iii)
of the definition of Group 2 Senior P&I Optimal Principal Amount, on
such Distribution Date;
(iv) the applicable Subordinate Prepayment Percentage of the sum
of (a) the Scheduled Principal Balance of each Group 2 Mortgage Loan
which was purchased by BSMCC or a Master Servicer on such Distribution
Date pursuant to Section 2.02 or 2.04(b) and (b) the difference, if
any, between the Scheduled Principal Balance of a Group 2 Mortgage
Loan that has been replaced by BSMCC or a Master Servicer with a
substitute Mortgage Loan pursuant to Section 2.05 on such Distribution
Date over the Scheduled Principal Balance of such substitute Mortgage
Loan; and
(v) on the Distribution Date on which the Current Principal
Amounts of the Group 2 Senior P&I Certificates have all been reduced to
zero, 100% of any Group 2 Senior P&I Optimal Principal Amount.
After the aggregate current Principal Amounts of the Group 2 Subordinate
Certificates have been reduced to zero, the Group 2 Subordinate Optimal
Principal Amount shall be zero.
GROUP 3 SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: As to any Distribution
Date, an amount equal to the sum, without duplication, of the following (but in
no event greater than the aggregate Current Principal Amounts of the Group 3
Subordinate Certificates immediately prior to such Distribution Date):
(i) the applicable Subordinate Percentage of the Scheduled
Principal due on each Group 3 Mortgage Loan on the related Due Date,
as specified in the amortization schedule at the time applicable
thereto (after adjustment for previous Principal Prepayments but
before any adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver
or grace period);
(ii) the applicable Subordinate Prepayment Percentage of each
Voluntary Principal Payment in part during the related Prepayment
Period with respect to each Group 3 Mortgage Loan and the applicable
Subordinate Prepayment Percentage of the Scheduled Principal Balance
of each Group 3 Mortgage Loan that was the subject of a Voluntary
Principal Prepayment in full during the related Prepayment Period;
(iii) the excess, if any, of (A) all Net Liquidation Proceeds
allocable to principal received during the related Prepayment Period
over (B) the sum of the amounts distributable
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pursuant to clause (iii) of the definition of Group 3 Senior P&I
Optimal Principal Amount, on such Distribution Date;
(iv) the applicable Subordinate Prepayment Percentage of the sum
of (a) the Scheduled Principal Balance of each Group 3 Mortgage Loan
which was purchased by BSMCC or a Master Servicer on such Distribution
Date pursuant to Section 2.02 or 2.04(b) and (b) the difference, if
any, between the Scheduled Principal Balance of a Group 3 Mortgage
Loan that has been replaced by BSMCC or a Master Servicer with a
substitute Mortgage Loan pursuant to Section 2.05 on such Distribution
Date over the Scheduled Principal Balance of such substitute Mortgage
Loan; and
(v) on the Distribution Date on which the Current Principal
Amounts of the Group 3 Senior P&I Certificates have all been reduced
to zero, 100% of any Group 3 Senior P&I Optimal Principal Amount.
After the aggregate current Principal Amounts of the Group 3 Subordinate
Certificates have been reduced to zero, the Group 3 Subordinate Optimal
Principal Amount shall be zero.
GROUP 1 SUBORDINATE PERCENTAGE, GROUP 2 SUBORDINATE PERCENTAGE or
GROUP 3 SUBORDINATE PERCENTAGE: On any Distribution Date, 100% minus the
applicable Senior Percentage of the relevant Certificate Group.
GROUP 1 SUBORDINATE PREPAYMENT PERCENTAGE, GROUP 2 SUBORDINATE
PREPAYMENT PERCENTAGE or GROUP 3 SUBORDINATE PREPAYMENT PERCENTAGE: On any
Distribution Date, 100% minus the applicable Senior Prepayment Percentage for
the relevant Certificate Group, except that on any Distribution Date after the
Current Principal Amounts of the Senior Certificates of the relevant Certificate
Group have each been reduced to zero, the Subordinate Prepayment Percentage for
such Certificate Group will equal 100%.
HOLDER: The Person in whose name a Certificate is registered in the
Certificate Register, except that, subject to Subsections 11.02(b) and 11.05(e),
solely for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Seller, a Master Servicer, a
Sub-Servicer, if any, or the Trustee or any Affiliate thereof shall be deemed
not to be outstanding and the Fractional Undivided Interest evidenced thereby
shall not be taken into account in determining whether the requisite percentage
of Fractional Undivided Interests necessary to effect any such consent has been
obtained.
INDEMNIFIED PERSONS: The Trustee, its officers, directors, agents and
employees and any separate Co-trustee and its officers, directors, agents and
employees.
INDEPENDENT: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Seller or the Master
Servicers and of any Affiliate of the Seller or the Master Servicers, (b) does
not have any direct financial interest or any material indirect
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financial interest in the Seller or the Master Servicers, or any Affiliate of
the Seller or the Master Servicers, and (c) is not connected with the Seller or
the Master Servicers, or any Affiliate as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
INDIVIDUAL CERTIFICATE: Any Private Certificate registered in the name
of the Holder other than the Depository or its nominee.
INDYMAC: IndyMac, Inc., or is successors in interest.
INDYMAC BASE SERVICING FEE: A fee of either 0.25%, 0.29% or 0.415% per
annum, as set forth in the Mortgage Loan Schedule, of the Outstanding Principal
Balance of each CMC Mortgage Loan from full payments of accrued interest on each
such Mortgage Loans.
INDYMAC MASTER SERVICING FEE: A fee of between 0.25% and 0.760% per
annum, as set forth in the Mortgage Loan Schedule, of the Outstanding Principal
Balance of each IndyMac Mortgage Loan from full payments of accrued interest on
each such Mortgage Loans as compensation for its activities under this
Agreement. Any IndyMac Master Servicing Fee in excess of the IndyMac Base
Servicing Fee will be set aside by the IndyMac Master Servicer to pay for lender
funded mortgage insurance and will not be treated as servicing compensation to
IndyMac and will not be available to make Compensating Interest Payments.
INDYMAC MASTER SERVICER: IndyMac in its capacity as a Master Servicer
hereunder.
INDYMAC MORTGAGE LOANS: The Mortgage Loans in the aggregate principal
amount of $98,364,248 that were originated or acquired by IndyMac, as indicated
on the Mortgage Loan Schedule attached as Exhibit B-3 hereto, and sold to SAMI
pursuant to the Mortgage Loan Purchase Agreement and subject to the IndyMac Sale
and Servicing Agreement.
INDYMAC SALE AND SERVICING AGREEMENT: The Purchase Warranties and
Servicing Agreement dated as of March 26, 1999, between BSMCC and IndyMac,
relating to the IndyMac Mortgage Loans, and the Term Sheet dated the same date,
as amended or supplemented from time to time.
INSTITUTIONAL ACCREDITED INVESTOR: Any Person meeting the requirements
of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act or
any entity all of the equity holders in which come within such paragraphs.
INSURANCE POLICY: With respect to any Mortgage Loan, any Primary
Mortgage Insurance Policy, standard hazard insurance policy, flood insurance
policy or title insurance policy.
INSURANCE PROCEEDS: Amounts paid by the insurer under any Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than amounts
required to be paid over to the Mortgagor
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pursuant to law or the related Mortgage Note or Security Instrument and other
than amounts used to repair or restore the Mortgaged Property or to reimburse
Insured Expenses.
INSURED EXPENSES: Expenses covered by any Insurance Policy.
INSURER: Any issuer of an Insurance Policy.
INTEREST ACCRUAL PERIOD: With respect to each Distribution Date and
each Class of interest bearing Certificates, the calendar month preceding the
month in which the Distribution Date occurs, commencing in April 1999.
INTEREST SHORTFALL: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of a
Voluntary Principal Prepayment, or constitutes a Relief Act Mortgage Loan, an
amount determined as follows:
(a) partial principal prepayments: The difference between (i) one
month's interest at the applicable Net Rate on the amount of such
prepayment and (ii) the amount of interest for the calendar month of
such prepayment (adjusted to the applicable Net Rate) received at the
time of such prepayment;
(b) principal prepayments in full received during the relevant
Prepayment Period: The difference between (i) one month's interest at
the applicable Net Rate on the Scheduled Principal Balance of such
Mortgage Loan immediately prior to such prepayment and (ii) the amount
of interest for the calendar month of such prepayment (adjusted to the
applicable Net Rate) received at the time of such prepayment;
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage
Loan, the excess of (i) 30 days' interest (or, in the case of a
principal prepayment in full, interest to the date of prepayment) on
the Scheduled Principal Balance thereof (or, in the case of a
principal prepayment in part, on the amount so prepaid) at the related
Net Rate over (ii) 30 days' interest (or, in the case of a principal
prepayment in full, interest to the date of prepayment) on such
Scheduled Principal Balance (or, in the case of a Principal Prepayment
in part, on the amount so prepaid) at the Net Rate required to be paid
by the Mortgagor as limited by application of the Relief Act.
INVESTMENT LETTER: The letter to be furnished by each Institutional
Accredited Investor which purchases any Class of Private Certificates in
connection with such purchase, substantially in the form set forth as Exhibit
F-1 hereto.
IO COMPONENTS: The Scheduled IO Component and WAC IO Component.
LIBOR: With respect to any Distribution Date and the Pass-Through
Rates on the Class 1-A- 6 and Class 1-A-7 Certificates, the arithmetic mean of
the London interbank offered rate quotations
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of Reference Banks for one-month Eurodollar deposits in the international
Eurocurrency market, expressed on a per annum basis, determined in accordance
with Section 1.02.
LIBOR BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the city of London, England are
required or authorized by law to be closed.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which the
related Master Servicer has determined that all amounts it expects to recover
from or on account of such Mortgage Loan have been recovered.
LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan, the
date on which the related Master Servicer has certified that such Mortgage Loan
has become a Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the related
Master Servicer and not recovered by such Master Servicer under any Primary
Mortgage Insurance Policy for reasons other than such Master Servicer's failure
to ensure the maintenance of or compliance with a Primary Mortgage Insurance
Policy, such expenses including (a) property protection expenses, (b) property
sales expenses, (c) foreclosure and sale costs, including court costs and
reasonable attorneys' fees, and (d) similar expenses reasonably paid or incurred
in connection with liquidation.
LIQUIDATION PROCEEDS: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through trustee's sale, foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise.
LOAN SUMMARY AND REMITTANCE REPORT: The report to be submitted by each
Master Servicer to the Trustee pursuant to Subsection 6.05(c).
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Original Value of the related Mortgaged
Property.
LOSS ALLOCATION LIMITATION: Group 1/Group 2 Loss Allocation Limitation
or Group 3 Loss Allocation Limitation, as applicable.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on Exhibit J hereto.
MASTER SERVICERS: Collectively, the CMC Master Servicer and the
IndyMac Master Servicer, or their successors in interest, and any successor
master servicer with respect to the Mortgage Loans appointed as herein provided.
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MASTER SERVICING FEES: Collectively, the CMC Master Servicing Fee and
the IndyMac Master Servicing Fee.
MONTHLY ADVANCE: The advance (including a Certificate Account Advance)
required to be made by a Master Servicer on the related Advancing Date pursuant
to Section 6.06.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note, which
rate is equal to the "Mortgage Interest Rate" set forth with respect thereto on
the Mortgage Loan Schedules.
MORTGAGE LOAN: A mortgage loan (including Cooperative Loans)
transferred and assigned to the Trustee pursuant to Section 2.01 or Section 2.05
and held as a part of the Trust Fund, as identified in the Mortgage Loan
Schedules, including a mortgage loan the property securing which has become an
REO Property.
MORTGAGE LOAN GROUP: Either of Mortgage Loan Group 1, Mortgage Loan
Group 2 or Mortgage Loan Group 3, each of which constitutes a separate
sub-trust.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of April 27, 1999, between BSMCC, as seller, and Structured Asset
Mortgage Investments Inc., as purchaser, and all amendments thereof and
supplements thereto.
MORTGAGE LOAN SCHEDULES: The schedules, attached hereto as Exhibit
B-1, Exhibit B-2 and Exhibit B-3 with respect to the CMC Mortgage Loans and the
IndyMac Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement, which
shall, in a column thereto, separately identify which are Group 1 Mortgage
Loans, which are Group 2 Mortgage Loans and which are Group 3 Mortgage Loans.
MORTGAGE NOTE: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGED PROPERTY: Land and improvements securing the indebtedness of
a Mortgagor under the related Mortgage Loan or, in the case of REO Property,
such REO Property.
MORTGAGOR: The obligor on a Mortgage Note.
NET INTEREST SHORTFALL: With respect to any Distribution Date and each
Mortgage Loan Group, the Interest Shortfall for such Mortgage Loan Group, if
any, for such Distribution Date net of
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Compensating Interest Payments made with respect to such Distribution Date with
respect to the related Mortgage Loan Group.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable therefrom
to the related Master Servicer in accordance with this Agreement and (ii)
unreimbursed advances by the related Master Servicer and Monthly Advances
including Certificate Account Advances.
NET RATE: With respect to (i) each Group 1 Mortgage Loan and Group 2
Mortgage Loan, the Mortgage Interest Rate borne by such Mortgage Loan less the
CMC Master Servicing Fee and (ii) each Group 3 Mortgage Loan, the Mortgage Rate
less the IndyMac Master Servicing Fee, in each case expressed as a per annum
rate.
NON-DISCOUNT GROUP 1 MORTGAGE LOAN: Any Group 1 Mortgage Loan with a
Net Rate equal to or greater than 6.75%, per annum, respectively.
NON-PO PERCENTAGE: With respect to any Discount Group 1 Mortgage Loan,
the Net Rate thereof divided by 6.75%.
NONRECOVERABLE ADVANCE: Any advance (i) which was previously made or
is proposed to be made by a Master Servicer and (ii) which, in the good faith
judgment of such Master Servicer, as evidenced by an Officer's Certificate, will
not or, in the case of a proposed advance, would not, be ultimately recoverable
by such Master Servicer from Liquidation Proceeds, Insurance Proceeds or future
payments on the Mortgage Loan for which such advance was made.
NORWEST: Norwest Bank Minnesota, National Association, and its
successors in interest.
NOTIONAL AMOUNT: On any Distribution Date, with respect to (1) the WAC
IO Component and Class 3-X Certificates, an amount equal to the aggregate
Scheduled Principal Balances of the Non-Discount Group 1 Mortgage Loans and the
Group 3 Mortgage Loans, respectively, (2) the Class B-6-X Certificates, an
amount equal to the Certificate Principal Balance of the Class B-6-P
Certificates immediately prior to such Distribution Date and (3) the Scheduled
IO Component, an amount equal to the sum of the Certificate Principal Balances
of the Class 1-A-1, Class 1-A-2, Class 1-A-3 and Class 1-A-4 Certificates.
NOTIONAL AMOUNT CERTIFICATES: The Class 3-X and Class B-6-X
Certificates.
NOTIONAL AMOUNT COMPONENTS: The Scheduled IO Component and WAC IO
Component.
OFFERED CERTIFICATE: Any Group 1, Group 2 and Group 3 Senior
Certificate and Class B-1, Class B-2, Class B-3, Class 3-B-1, Class 3-B-2 and
Class 3-B-3 Certificate.
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OFFERED SUBORDINATE CERTIFICATES: The Class B-1, Class B-2, Class B-3,
Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President or
Assistant Vice President or other authorized officer of a Master Servicer and
delivered to the Trustee, as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for a Master
Servicer.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except that in instances where either (i) or (ii) is unavailable, the other may
be used to determine Original Value, or if both (i) and (ii) are unavailable,
Original Value may be determined from other sources reasonably acceptable to the
Trustee.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased pursuant to Sections 2.02 or 2.04 or replaced pursuant to Section
2.05.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination,
the principal balance of a Mortgage Loan remaining to be paid by the Mortgagor,
or, in the case of an REO Property, the principal balance of the related
Mortgage Loan remaining to be paid by the Mortgagor at the time such property
was acquired by the Trust Fund less any Net Insurance Proceeds with respect
thereto to the extent applied to principal.
PAC CERTIFICATES: Class 1-A-1, Class 1-A-2 and Class 1-A-3
Certificates.
PASS-THROUGH RATE: As to each Class of Certificates, other than the
WAC IO Component, Class 1-A-6, Class 1-A-7 or Class 3-X Certificates, the rate
of interest set forth, or determined as provided with respect thereto, in
Section 5.01(d). With respect to the Class WAC IO Component as to any Interest
Accrual Period, a per annum rate equal to the weighted average of the WAC IO
Component Premium Strip. With respect to the Class 1-A-6 Certificates and the
initial Interest Accrual Period, 5.8000% per annum, and as to any Interest
Accrual Period thereafter, a per annum rate equal to LIBOR plus 0.850%, subject
to a maximum rate of 8.500% per annum and a minimum rate of 0.850% per annum.
With respect to the Class 1-A-7 Certificates and the initial Interest Accrual
Period, 10.41429507% per annum, and as to any Interest Accrual Period
thereafter, a per annum rate equal to (x) 29.50720098% minus (y) LIBOR times
3.857152709, subject to a maximum rate of 29.50720098% per annum and a minimum
rate of 0.000% per annum. With respect to the Class 3-X Certificates and the
initial Interest Accrual Period, 1.0681% per annum, and as to any Interest
Accrual Period thereafter, a per annum rate equal to the weighted average of the
Class 3-X
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Premium Strip. Any monthly calculation of interest at a stated rate shall be
based upon annual interest at such rate divided by twelve.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely payment of
which are fully guaranteed by the United States of America or any
agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any
state thereof (including the Trustee acting in its commercial banking
capacity) and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or
the short-term debt rating and/or the long-term unsecured debt
obligations of such depository institution or trust company at the
time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each
Rating Agency and (b) any other demand or time deposit or certificate
of deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, the obligations of which are backed by the full faith and
credit of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (ii)(a) above where the Trustee holds the security
therefor;
(iv) securities bearing interest or sold at a discount issued by
any corporation (including the Trustee) incorporated under the laws of
the United States of America or any state thereof that have the
Applicable Credit Rating or better from each Rating Agency at the time
of such investment or contractual commitment providing for such
investment; PROVIDED, HOWEVER, that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investments therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of
the Trust to exceed 10% of the aggregate Outstanding Principal
Balances and amounts of all the Mortgage Loans and Permitted
Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than one year after the date of
issuance thereof) having the Applicable Credit Rating or better from
each Rating Agency at the time of such investment;
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(vi) a Reinvestment Agreement issued by any bank, insurance
company or other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to each Rating Agency as
evidenced in writing by each Rating Agency to the Trustee; and
(viii) any money market or common trust fund having the
Applicable Credit Rating or better from each Rating Agency, including
any such fund for which the Trustee, a Master Servicer or any
affiliate of the Trustee or a Master Servicer acts as a manager or an
advisor;
PROVIDED, HOWEVER, that no instrument or security shall be a Permitted
Investment if such instrument or security evidences a right to receive only
interest payments with respect to the obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at par or if such
instrument or security is purchased at a price greater than par.
PERMITTED TRANSFEREE: Any Person other than a Disqualified
Organization or an "electing large partnership" (as defined by Section 775 of
the Code).
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHYSICAL CERTIFICATES: Initially, the Residual Certificates and the
Private Certificates.
PLANNED PRINCIPAL AMOUNT: With respect to each Class of PAC
Certificates and each Distribution Date, the amount set forth for such Class in
Exhibit I hereto for the respective Distribution Date.
PO COMPONENT: With respect to the Class 1-A-5 Certificates, the Class
1-A-5-III Component thereof, being an uncertificated interest representing an
interest designated as a "regular interest" in REMIC IV for purposes of the
REMIC provisions.
PO COMPONENT CASH SHORTFALL: As defined in Section 6.01(a)(i)(E).
PO COMPONENT DEFERRED AMOUNT: With respect to each Distribution Date,
the aggregate of all amounts allocable on such Distribution Date to the PO
Component in respect of the principal portion of applicable Realized Losses on
Discount Group 1 Mortgage Loans and PO Component Cash Shortfall, and all amounts
previously allocated in respect of such losses and such shortfall to the PO
Component and not distributed on prior Distribution Dates. No interest shall
accrue on any PO Component Deferred Amount.
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PO COMPONENT DEFERRED PAYMENT WRITEDOWN AMOUNT: With respect to any
Distribution Date, the amount if any, distributed on such date in respect of the
PO Component Deferred Amount pursuant to Sections 6.01(a)(i)(C)(1).
PO COMPONENT PRINCIPAL DISTRIBUTION AMOUNT: With respect to the PO
Component on each Distribution Date, an amount, without duplication, equal to
the sum of:
(i) the applicable Principal Percentage of the Scheduled
Principal due on each Discount Group 1 Mortgage Loan on the related
Due Date as specified in the amortization schedule at the time
applicable thereto (after adjustments for previous principal
prepayments, but before any adjustment to such amortization schedule
by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the applicable Principal Percentage of the Scheduled
Principal Balance of each Discount Group 1 Mortgage Loan which was the
subject of a Voluntary Principal Prepayment in full received by a
Master Servicer during the applicable Prepayment Period;
(iii) the applicable Principal Only Percentage of all Voluntary
Principal Prepayments in part for each Discount Group 1 Mortgage Loan
received during the applicable Prepayment Period;
(iv) the lesser of (a) the applicable Principal Only Percentage
of the sum of (A) all Net Liquidation Proceeds allocable to principal
on each Discount Group 1 Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than a
Discount Group 1 Mortgage Loan described in the immediately following
clause (B)) and (B) the Scheduled Principal Balance of each such
Discount Group 1 Mortgage Loan purchased by an Insurer from the
Trustee during the related Prepayment Period pursuant to the related
Primary Mortgage Insurance Policy, if any, or otherwise; and (b) the
applicable Principal Only Percentage of the sum of (A) the Scheduled
Principal Balance of each Discount Group 1 Mortgage Loan which became
a Liquidated Mortgage Loan during the related Prepayment Period (other
than a Discount Group 1 Mortgage Loan described in the immediately
following clause (B)) and (B) the Scheduled Principal Balance of each
such Mortgage Loan that was purchased by an Insurer from the Trustee
during the related Prepayment Period pursuant to the related Primary
Mortgage Insurance Policy, if any, or otherwise; and
(v) the applicable Principal Only Percentage of the sum of (a) the
Scheduled Principal Balance of each Discount Group 1 Mortgage Loan or
REO Property which was repurchased by BSMCC or a Master Servicer on
such Distribution Date pursuant to Section 2.02 or 2.04(b) and (b) the
excess, if any, of the Scheduled Principal Balance of a Discount Group
1 Mortgage Loan that has been replaced by BSMCC with a Substitute
Mortgage Loan pursuant to Section 2.06 on such Distribution Date over
the Scheduled Principal Balance of such Substitute Mortgage Loan.
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POOL STRIP RATE: With respect to (i) each Non-Discount Group 1
Mortgage Loan and each Group 3 Mortgage Loan, the excess of the Net Rate over
6.75% per annum, and (ii) each Non- Discount Group 1 Mortgage Loan and each
Group 3 Mortgage Loan with a Net Rate of 6.75%, a rate equal to 0.00%.
PREPAYMENT PERIOD: With respect to any Mortgage Loan and any
Distribution Date, the calendar month preceding the month of such Distribution
Date.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related Security Instrument, or any replacement
policy therefor.
PRINCIPAL ONLY PERCENTAGE: With respect to any Discount Group 1
Mortgage Loan, the fraction, expressed as a percentage, equal to 6.75% minus the
Net Rate thereof divided by 6.75%; and with respect to any Non-Discount Group 1
Mortgage Loan, 0%.
PRINCIPAL PREPAYMENT: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment, including Insurance Proceeds
and the purchase price in connection with any purchase of a Mortgage Loan, any
cash deposit in connection with the substitution of a Mortgage Loan, and the
principal portion of Net Liquidation Proceeds.
PRIVATE CERTIFICATES: Any Class B-4, Class B-5, Class B-6-P, Class
B-6-X, Class 3-B-4, Class 3-B-5 or Class 3-B-6 Certificate.
PROTECTED ACCOUNTS: An account established and maintained in the name
of the Trustee for the benefit of Certificateholders by each Master Servicer or
any Sub-Servicer with respect to the Mortgage Loans and with respect to REO
Property in a Designated Depository Institution for receipt of principal and
interest and other amounts as described in Section 4.01.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
QUALIFIED INSURER: Any insurance company duly qualified as such under
the laws of the state or states in which the related Mortgaged Property or
Mortgaged Properties is or are located, duly authorized and licensed in such
state or states to transact the type of insurance business in which it is
engaged and approved as an insurer by the related Master Servicer, so long as
the claims paying ability of which is acceptable to the Rating Agencies for
pass-through certificates having the same rating as the Certificates rated by
the Rating Agencies as of the Closing Date.
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RATING AGENCIES: With respect to the Group 1, Group 2 and Group 3
Senior Certificates, S&P. With respect to the Group 1 and Group 2 Certificates,
Fitch. With respect to the Group 3 Certificates, DCR.
RATE ADJUSTMENT DATE: With respect to each Distribution Date and the
Class 1-A-6 Certificates and Class 1-A-7 Certificates, the LIBOR Business Day
immediately preceding the commencement of the related Interest Accrual Period on
which banks are open for dealing in foreign currency and exchange in London,
England.
RATING AGENCY ELIGIBLE ACCOUNT: An account, including one maintained
with the Trustee, which either (i) is a trust account maintained with the
corporate trust department of a depository institution or trust company
(including, without limitation, the Trustee) organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia which is not affiliated with a Master Servicer, any Sub-Servicer or any
other master servicer other than the Trustee, (ii) is maintained with an entity
which is an institution whose deposits are insured by the FDIC, the unsecured
and uncollateralized long-term debt obligations of which shall be rated "A" or
higher by S&P, "A" or higher by Fitch and "A" or higher by DCR, or one of the
two highest short-term ratings by each Rating Agency, and which is either (a) a
federal savings association duly organized, validly existing and in good
standing under the federal banking laws, (b) an institution duly organized,
validly existing and in good standing under the applicable banking laws of any
state, (c) a national banking association under the federal banking laws, or (d)
a principal subsidiary of a bank holding company, or (iii) otherwise meets the
requirements of each Rating Agency for the maintenance of the ratings on the
Certificates.
REALIZED LOSS: Any (i) Deficient Valuation or (ii) as to any
Liquidated Mortgage Loan, (x) the Outstanding Principal Balance of such
Liquidated Mortgage Loan plus accrued and unpaid interest thereon at the
Mortgage Interest Rate through the last day of the month of such liquidation
LESS (y) the related Net Liquidation Proceeds with respect to such Mortgage
Loan.
RECORD DATE: With respect to any Distribution Date, the close of
business on the last Business Day of the month immediately preceding the month
of such Distribution Date.
REFERENCE BANKS: Bankers Trust Company, Barclay's Bank PLC, The Bank
of Tokyo and National Westminster Bank PLC and their successors in interest;
PROVIDED that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the CMC Master Servicer which
are engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London, (ii)
not controlling, under the control of or under common control with the Seller or
any Affiliate thereof, (iii) whose quotations appear on the Reuters Screen LIBO
Page on the relevant Rate Adjustment Date and (iv) which have been designated as
such by the CMC Master Servicer.
REFERENCE BANK RATE: With respect to any Interest Accrual Period, as
follows: the arithmetic mean (rounded upwards, if necessary, to the nearest one
sixteenth of a percent) of the offered rates
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for United States dollar deposits for one month which are offered by the
Reference Banks as of 11:00 A.M., London, England time, two LIBOR Business Days
prior to the first day of such Interest Accrual Period to prime banks in the
London interbank market for a period of one month in amounts approximately equal
to the sum of the outstanding Current Principal Balance and the Certificates;
PROVIDED that at least two such Reference Banks provide such rate. If fewer than
two offered rates appear, the Reference Bank Rate will be the arithmetic mean
(rounded upwards if necessary to the nearest 1/16%) of the rates quoted by one
or more major banks in New York City, selected by the Master Servicer, as of
11:00 a.m., New York time, on such date for loans in U.S. Dollars to leading
European Banks for a period of one month in amounts approximately equal to the
aggregate Current Principal Balance. If no such quotations can be obtained, the
Reference Bank Rate shall be the Reference Bank Rate applicable to the preceding
Interest Accrual Period.
REINVESTMENT AGREEMENTS: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the Scheduled
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A real estate mortgage investment conduit, as defined in the
Code.
REMIC I: That group of assets contained in the Trust Fund designated
as a REMIC consisting of (i) the Group 1 Mortgage Loans, (ii) the sub-account of
the Certificate Account relating to the Group 1 Mortgage Loans, (iii) any REO
Property relating to the Group 1 Mortgage Loans and (iv) any proceeds of the
foregoing.
REMIC I CERTIFICATES: The REMIC I Regular Interests and the Class R-1
Certificates.
REMIC I REGULAR INTERESTS: As defined in Section 5.01(c)
REMIC II: That group of assets contained in the Trust Fund designated
as a REMIC consisting of (i) the Group 2 Mortgage Loans, (ii) the sub-account of
the Certificate Account relating to the Group 2 Mortgage Loans, (iii) any REO
Property relating to the Group 2 Mortgage Loans and (iv) any proceeds of the
foregoing.
REMIC II CERTIFICATES: The REMIC II Regular Interests and the Class
R-2 Certificates.
REMIC II REGULAR INTERESTS: As defined in Section 5.01(c).
REMIC III: That group of assets contained in the Trust Fund designated
as a REMIC consisting of (i) the Group 3 Mortgage Loans, (ii) the sub-account of
the Certificate Account relating
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to the Group 3 Mortgage Loans, (iii) any REO Property relating to the Group 3
Mortgage Loans and (iv) any proceeds of the foregoing.
REMIC III CERTIFICATES: The REMIC III Regular Interests and the Class
R-3 Certificates.
REMIC III REGULAR INTERESTS: As defined in Section 5.01(c).
REMIC IV: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC I Regular Interests, the REMIC II Regular
Interests and the REMIC III Regular Interests.
REMIC IV CERTIFICATES: The REMIC IV Regular Certificates and the Class
R-4 Certificates.
REMIC IV REGULAR CERTIFICATES: As defined in Section 5.01(c).
REMIC OPINION: An Opinion of Independent Counsel, to the effect that
the proposed action described therein would not, under the REMIC Provisions, (i)
cause any Series REMIC to fail to qualify as a REMIC while any regular interest
in any Series REMIC is outstanding, (ii) result in a tax on prohibited
transactions with respect to any Series REMIC or (iii) constitute a taxable
contribution to any Series REMIC after the Startup Day.
REMIC PROVISIONS: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the Code, and
related provisions and regulations promulgated thereunder, as the foregoing may
be in effect from time to time.
REO PROPERTY: A Mortgaged Property acquired in the name of the
Trustee, for the benefit of Certificateholders, by foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
REPURCHASE PRICE: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased pursuant to Section
2.02 or 2.04 an amount equal to the sum of (i) 100% of the Outstanding Principal
Balance of such Mortgage Loan as of the date of repurchase (or if the related
Mortgaged Property was acquired with respect thereto, 100% of the Outstanding
Principal Balance at the date of the acquisition) plus (ii) accrued but unpaid
interest on the Outstanding Principal Balance at the related Mortgage Interest
Rate, through and including the last day of the month of repurchase reduced by
(ii) any portion of the related Master Servicing Fee or advances payable to the
purchaser of the Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached hereto
as Exhibit D.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement with respect to such Mortgage Loan.
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RESIDUAL CERTIFICATES: The Class R-1, Class R-2, Class R-3 and Class
R-4 Certificates.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust
Division (or any successor thereto), including any Vice President, Assistant
Vice President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement or any other officer of
the Trustee to whom matters under this Agreement may be referred.
RULE 144A CERTIFICATE: The certificate to be furnished by each
purchaser of a Private Certificate (which is also a Physical Certificate) which
is a Qualified Institutional Buyer as defined under Rule 144A promulgated under
the Securities Act, substantially in the form set forth as Exhibit F-2 hereto.
SAMI: Structured Asset Mortgage Investments Inc.
SCHEDULED IO COMPONENT: With respect to the Class 1-A-5 Certificates,
the 1-A-5-I Component thereof, being an uncertificated interest representing an
interest designated as a "regular interest" in REMIC IV for purposes of the
REMIC provisions.
SCHEDULED IO COMPONENT STRIP: On each Distribution Date, an amount
equal to the sum of (i) 0.70% multiplied by the Current Principal Amount of the
Class 1-A-1 Certificates, (ii) 0.65% multiplied by the Current Principal Amount
of the Class 1-A-2 Certificates, and (iii) 0.45% multiplied by the sum of the
Current Principal Amounts of the Class 1-A-3 Certificates and Class 1-A-4
Certificates.
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month,
the scheduled payment or payments of principal and interest due during such
month on such Mortgage Loan which either is payable by a Mortgagor in such month
under the related Mortgage Note or, in the case of REO Property, would otherwise
have been payable under the related Mortgage Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled Payment.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan on any
Distribution Date, (i) the unpaid principal balance of such Mortgage Loan as of
the close of business on the related Due Date (i.e., taking account of the
principal payment to be made on such Due Date and irrespective of any
delinquency in its payment), as specified in the amortization schedule at the
time relating thereto (before any adjustment to such amortization schedule by
reason of any bankruptcy or similar proceeding occurring after the Cut-off Date
(other than a Deficient Valuation) or any moratorium or similar waiver or grace
period) less (ii) any Principal Prepayments (including the principal portion of
Net Liquidation Proceeds) received during or prior to the related Prepayment
Period; provided that the Scheduled Principal Balance of a Liquidated Mortgage
Loan is zero.
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SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES LEGEND: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3)
IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT
OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO
(A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN
THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY
OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR
INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS
ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT
NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION ("PTE") 84-14, PTE 91-38, PTE
90-1, PTE 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL
FIDUCIARY DUTIES ON THE PART OF A MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT BY OR ON
BEHALF OF A HOLDER OF A PRIVATE CERTIFICATE."
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SECURITY INSTRUMENT: A written instrument creating a valid first lien
on a Mortgaged Property securing a Mortgage Note, which may be any applicable
form of mortgage, deed of trust, deed to secure debt or security deed, including
any riders or addenda thereto.
SELLER: Structured Asset Mortgage Investments Inc. (formerly known as
Bear Stearns Mortgage Securities, Inc.), a Delaware corporation, or its
successors in interest.
SENIOR CERTIFICATES: The Group 1 Senior Certificates, Group 2 Senior
Certificates and Group 3 Senior Certificates, as the context requires.
SENIOR P&I CERTIFICATES: The Group 1 Senior P&I Certificates, the
Group 2 Senior P&I Certificates or the Group 3 Senior P&I Certificates, as the
context requires.
SENIOR P&I OPTIMAL PRINCIPAL AMOUNT: The Group 1 Senior P&I Optimal
Principal Amount, the Group 2 Senior P&I Optimal Principal Amount or the Group 3
Senior P&I Optimal Principal Amount, as applicable.
SENIOR PERCENTAGE: The Group 1 Senior Percentage, the Group 2 Senior
Percentage or the Group 3 Senior Percentage, as applicable.
SENIOR PREPAYMENT PERCENTAGE: The Group 1 Prepayment Percentage, the
Group 2 Prepayment Percentage or the Group 3 Prepayment Percentage, as
applicable.
SERIES REMIC: Any of REMIC I, REMIC II, REMIC III or REMIC IV.
SERVICING ADVANCES: All reasonable and customary "out of pocket" costs
and expenses (including reasonable attorneys' fees and disbursements) incurred
in the performance by a Master Servicer or any Sub-Servicer of its servicing
obligations, including, but not limited to the following, without duplication,
the cost of (i) the preservation, restoration and protection of the Mortgaged
Property, (ii) any enforcement, administrative or judicial proceedings, or any
legal work or advice specifically related to servicing the Mortgage Loans,
including but not limited to, foreclosures, bankruptcies, condemnations, drug
seizures, elections, foreclosures by subordinate or superior lienholders, and
other legal actions incidental to the servicing of the Mortgage Loans (provided
that such expenses are reasonable and that the Master Servicer specifies the
Mortgage Loan(s) to which such expenses relate), (iii) the management and
liquidation of the Mortgaged Property if the Mortgaged Property is acquired in
full or partial satisfaction of the Mortgage, including reasonable fees paid to
any independent contractor in connection therewith, (iv) taxes, assessments,
water rates, sewer rates and other charges which are or may become a lien upon
the Mortgaged Property, and Primary Mortgage Insurance Policy premiums and fire
and hazard insurance coverage, (v) compliance with the obligations under Section
3.07 or 3.10, and (vi) in connection with the liquidation of a Mortgage Loan,
expenditures relating to the purchase or maintenance of the first lien on the
Mortgaged Property pursuant to Section 3.12, all of which reasonable and
customary
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out-of-pocket costs and expenses are reimbursable to such Master Servicer or
such Sub-Servicer to the extent provided in Sections 4.02(b) and 4.03(b).
SERVICING OFFICER: Any officer of either Master Servicer or of an
agent or independent contractor through which all or part of such Master
Servicer's servicing responsibilities are carried out, involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by such Master Servicer as such list may from time to time be
amended in accordance with the foregoing.
S&P: Standard & Poor's, a division of The McGraw-Hill Companies, Inc.,
or its successors in interest.
SPECIAL HAZARD LOSS: (i) A Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, exclusive of (a) any loss covered
by a hazard policy or a flood insurance policy required to be maintained in
respect of such Mortgaged Property under Section 3.10 and (b) any loss caused by
or resulting from:
(1) normal wear and tear;
(2) conversion or other dishonest act on the part of the
Trustee, a Master Servicer or any of their agents or
employees; or
(3) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof
ensues;
or (ii) any Realized Loss suffered by the Trust Fund arising from or related to
the presence or suspected presence of hazardous wastes or hazardous substances
on a Mortgage Property as reported by a Master Servicer unless such loss to a
Mortgaged Property is covered by a hazard policy or a flood insurance policy
required to be maintained in respect of such Mortgage Property under Section
3.10.
SPECIAL HAZARD LOSS AMOUNT: Upon the initial issuance of the
Certificates, the "Special Hazard Loss Amount" for (i) the Group 1 Mortgage
Loans will equal $2,374,370.24, (ii) the Group 2 Mortgage Loans will equal
$2,374,370.24 and (iii) the Group 3 Mortgage Loans will equal $983,642.48. As of
any Distribution Date, the Special Hazard Loss Amount for each Mortgage Loan
Group will equal the initial Special Hazard Loss Amount, minus the sum of (i)
the aggregate amount of Special Hazard Losses that would have been previously
allocated to the Subordinate Certificates of the related Certificate Group in
the absence of the Loss Allocation Limitation and (ii) the Adjustment Amount.
SPECIAL HAZARD TERMINATION DATE: For any Mortgage Loan Group, the
Distribution Date upon which the applicable Special Hazard Loss Amount has been
reduced to zero or a negative number.
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STARTUP DAY: April 30, 1999.
SUBORDINATE CERTIFICATES: The Group 1 Subordinate, Group 2 Subordinate
and/or Group 3 Subordinate Certificates, as the context requires.
SUBORDINATE PERCENTAGE: The Group 1 Subordinate Percentage, Group 2
Subordinate Percentage and/or Group 3 Subordinate Percentage, as applicable.
SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: The Group 1 Subordinate Optimal
Principal Amount, the Group 2 Subordinate Optimal Principal Amount or the Group
3 Subordinate Optimal Principal Amount.
SUB-SERVICER: Any Person with which either of the Master Servicers has
entered into a Sub- Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
SUB-SERVICING AGREEMENT: Any agreement entered into between the Master
Servicer and a Sub-Servicer pursuant to Section 3.02
SUBSTITUTE MORTGAGE LOAN: A mortgage loan tendered to the Trustee
pursuant to Section 2.05, in each case, (i) which has an Outstanding Principal
Balance not materially greater nor materially less than the Mortgage Loan for
which it is to be substituted; (ii) which has a fixed Mortgage Interest Rate and
Net Rate not less than, and not materially greater than, such Mortgage Loan;
(iii) which has a maturity date not materially earlier or later than such
Mortgage Loan and not later than the latest maturity date of any Mortgage Loan;
(iv) which is of the same property type and occupancy type as such Mortgage
Loan; (v) which has a Loan-to-Value Ratio not greater than the Loan-to-Value
Ratio of such Mortgage Loan; (vi) which is current in payment of principal and
interest as of the date of substitution; and (vii) as to which the payment terms
do not vary in any material respect from the payment terms of the Mortgage Loan
for which it is to be substituted.
TAC ACCRUAL COMPONENT: With respect to the Class 1-A-5 Certificates,
the A-1-5-II Component thereof, being an uncertificated interest representing an
interest designated as a "regular interest" in REMIC I for purposes of the REMIC
provisions.
TAC ACCRUAL COMPONENT ACCRUAL DISTRIBUTION AMOUNT: As defined in
Section 6.01(a)(i)(G).
TAC CERTIFICATES: The Class 1-A-4, Class 1-A-6 and Class 1-A-7
Certificates and the TAC Accrual Component.
TARGETED PRINCIPAL AMOUNT: With respect to each Class of TAC
Certificates and the TAC Accrual Component and each Distribution Date, the
amount set forth for such Class in Exhibit I hereto for the respective
Distribution Date.
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TAX ADMINISTRATION AND TAX MATTERS PERSON: The Trustee or any
successor thereto or assignee thereof shall serve as tax administrator hereunder
and as agent for each Tax Matters Person. The Holder of each Class of Residual
Certificates shall be the Tax Matters Person for each of the related Series
REMICs, as more particularly set forth in Section 9.13 hereof.
TRUST FUND OR TRUST: The corpus of the trust created by this
Agreement, consisting of the Mortgage Loans and the other assets described in
Section 2.01(a).
TRUSTEE: Norwest, or its successor in interest, or any successor
trustee appointed as herein provided.
TRUSTEE'S FEES: With respect to any Distribution Date, the investment
earnings permitted to be paid to the Trustee pursuant to Section 4.02(c) hereof.
UNITED STATES PERSON: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations) or
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States person notwithstanding the previous sentence.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or REO
Property such that the complete restoration of such Mortgaged Property or REO
Property is not fully reimbursable by the hazard insurance policies required to
be maintained pursuant to Section 3.10, without regard to whether or not such
policy is maintained.
VOLUNTARY PRINCIPAL PREPAYMENT: With respect to any Distribution Date,
any Principal Prepayment received from the related Mortgagor on a Mortgage Loan.
WAC IO COMPONENT: With respect to the Class 1-A-5 Certificates, the
1-A-5-IV Component thereof, being an uncertificated interest representing an
interest designated as a "regular interest" in REMIC I for purposes of the REMIC
provisions.
WAC IO COMPONENT PREMIUM STRIP: The weighted average, as of the Due
Date in the month preceding the month in which such Distribution Date occurs, of
the Pool Strip Rates on the Non- Discount Group 1 Mortgage Loans in the Mortgage
Pool.
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Section 1.02. DETERMINATION OF LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rates on the
Class 1-A-6 and Class 1-A-7 Certificates for any Interest Accrual Period (other
than the initial Interest Accrual Period) will be determined on each Rate
Adjustment Date as follows:
For any Interest Accrual Period other than the first Interest Accrual
Period, the rate for United States dollar deposits for one month which appears
on the Telerate Screen Page 3750 as of 11:00 A.M., London, England time, two
LIBOR Business Days prior to the first day of such Interest Accrual Period. For
the first Interest Accrual Period, LIBOR equals 4.95% per annum with respect to
the Class 1-A-6 and Class 1-A-7 Certificates. If such rate does not appear on
such page (or such other page as may replace that page on that service, or if
such service is no longer offered, such other service for displaying LIBOR or
comparable rates as may be reasonably selected by the Master Servicer), the rate
will be the Reference Bank Rate. If no such quotations can be obtained and no
Reference Bank Rate is available, LIBOR will be LIBOR applicable to the
preceding Distribution Date.
The establishment of LIBOR by the Trustee on any Rate Adjustment Date
and the Trustee's subsequent calculation of the Pass-Through Rates applicable to
the Class 1-A-6 and Class 1-A-7 Certificates for the relevant Interest Accrual
Period, in the absence of manifest error, will be final and binding.
Promptly following each Rate Adjustment Date the Trustee shall supply
the Master Servicer with the results of its determination of LIBOR on such date.
Furthermore, the Trustee will supply to any Certificateholder so requesting by
telephone the Pass-Through Rates on the Class 1-A-6 and Class 1-A-7 Certificates
for the current and the immediately preceding Interest Accrual Periods.
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ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01. CONVEYANCE OF MORTGAGE LOANS TO TRUSTEE. (a) The Seller
concurrently with the execution and delivery of this Agreement, sells, transfers
and assigns to the Trust without recourse all its right, title and interest in
and to (i) the Mortgage Loans identified in the Mortgage Loan Schedules,
including all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and interest due
on or prior to the Cut-off Date; (ii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Certificate Account (subject to the right of the Trustee to retain all income
from Permitted Investments under Section 4.02(c)), (iii) such assets relating to
the Mortgage Loans as from time to time may be held by a Master Servicer or a
Sub-Servicer in Protected Accounts (excluding any income to a Master Servicer or
any Sub-Servicer from Permitted Investments under Subsection 4.01(a)), (iv) any
Servicing Accounts (to the extent the mortgagee has a claim thereto and
excluding any income to a Master Servicer or Sub-Servicer or interest payable to
Mortgagors pursuant to applicable law), (v) any REO Property, (vi) the Required
Insurance Policies and any amounts paid or payable by the insurer under any
Insurance Policy (to the extent the mortgagee has a claim thereto), (vii) the
Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.04(a),
and (viii) any proceeds of the foregoing. The Mortgage Loans that constitute
part of the Trust shall be divided into three separate sub-trusts, one for each
of the Mortgage Loan Groups. Although it is the intent of the parties to this
Agreement that the conveyance of the Seller's right, title and interest in and
to the Mortgage Loans and other assets in the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in the event that
such conveyance is deemed to be a loan, it is the intent of the parties to this
Agreement that the Seller shall be deemed to have granted to the Trustee a first
priority perfected security interest in all of the Seller's right, title and
interest in, to and under the Mortgage Loans and other assets in the Trust Fund,
and that this Agreement shall constitute a security agreement under applicable
law.
(b) In connection with the above transfer and assignment, the Seller
hereby deposits with the Trustee, with respect to (A) each Mortgage Loan, other
than Cooperative Loans (i) the original Mortgage Note, endorsed without recourse
to the order of the Trustee and showing an unbroken chain of endorsements from
the original payee thereof to the Person endorsing it to the Trustee, (ii) the
original Security Instrument, which shall have been recorded, with evidence of
such recording indicated thereon, (iii) the assignment (which may be in the form
of a blanket assignment if permitted in the jurisdiction in which the Mortgaged
Property is located) to the Trustee of the Security Instrument, with evidence of
recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if clause (x) in the proviso below applies, shall be in recordable form),
(iv) all intervening assignments of the Security Instrument, if applicable, to
the Seller with evidence of recording thereon, (v) the original or a copy of the
policy or certificate of primary mortgage guaranty insurance, if any, (vi) the
original policy of title insurance or mortgagee's certificate of title
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insurance or commitment or binder for title insurance and (vii) originals of all
modification agreements, if applicable and (B) each Cooperative Loan (i) the
original Mortgage Note endorsed by the Company either in blank or such form as
may be directed by Purchaser, and signed in the name of the Company by an
authorized officer, with all intervening endorsements showing a complete chain
of title from the originator to the Trustee; (ii) the original of any Guarantee
executed in connection with the Mortgage Note; (iii) the original security
agreement (the "Security Agreement"); (iv) if applicable, a copy of the original
assignment of Security Instrument from the Seller, CMC, IndyMac or the
originator, either in blank or in such form as directed by the Trustee, which
assignment shall be in form and substance acceptable for recording certified by
an authorized officer of the Trustee to be a true and correct copy thereof; the
originals, with evidence of recording thereon or in the case where a public
recording office retains the original assignment of Security Instrument, a copy
certified by such public recording office to be a true and complete copy of the
original recorded assignment of Security Instrument shall be delivered promptly
upon receipt thereof by the Trustee; (v) originals of each assumption,
modification, consolidation and extension agreement, written assurance,
substitution agreement, assumption agreement or power-of-attorney, if
applicable, with recording information thereof, if any; (vi) original Form UCC-1
with evidence of filing thereon entered into by the debtor with respect to such
Cooperative Loan, which should indicate the unit number or other identification
of the Mortgaged Property subject to the proprietary lease, the name of the
debtor and the address of the Cooperative building; (vii) original Form UCC-3 in
blank assigning the security interest covered by the Form UCC-1 referred to
above; (viii) if applicable, stock certificate(s) representing the stock
allocated to the Cooperative Unit in the Cooperative pledged with respect to
such Mortgage Loan with a stock power in blank; (ix) the original recognition
agreement of the interests of the Company with respect to the Mortgage Loan by
the Cooperative, the stock of which was pledged in respect of such Mortgage
Loan, in the standard "AZTECH" form or a form containing provisions not less
favorable to the lender than are contained in such a standard AZTECH form; (x)
the original Proprietary Lease, if available; (xi) the assignment of the
proprietary lease and (xii) a copy of any power of attorney.
PROVIDED, HOWEVER, that in lieu of the foregoing, the Seller may deliver the
following documents, under the circumstances set forth below: (x) in lieu of the
original Security Instrument, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will, upon
receipt of recording information relating to the Security Instrument required to
be included thereon, be delivered to recording offices for recording and have
not been returned to the Seller in time to permit their delivery as specified
above, the Seller may deliver a true copy thereof with a certification by BSMCC,
CMC or IndyMac, on the face of such copy, substantially as follows: "Certified
to be a true and correct copy of the original, which has been transmitted for
recording"; (y) in lieu of the Security Instrument, assignment to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains the
originals of such documents (as evidenced by a certification from BSMCC, CMC or
IndyMac, to such effect) the Seller may deliver photocopies of such documents
containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (z) in
lieu of the Mortgage Notes relating to 2, 2 and 5 Group 1, Group 2 and Group 3
Mortgage Loans, respectively, with an aggregate Scheduled Principal Balance as
of the Cut-off Date of $775,912,
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$877,148 and $533,993, respectively, each as identified in the list delivered by
the Seller to the Trustee on the Closing Date and set forth in Exhibit J hereto,
the Seller may deliver a lost note affidavit and, if available, a copy of the
original Mortgage Note; and PROVIDED, FURTHER, HOWEVER, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off Date and prior
to the Closing Date, the Seller, in lieu of delivering the above documents, may
deliver to the Trustee a certification of a Servicing Officer to such effect and
shall deposit all amounts paid in respect of such Mortgage Loans in the
Certificate Account on the Closing Date. The Seller shall deliver such original
documents (including any original documents as to which certified copies had
previously been delivered) to the Trustee promptly after they are received. Each
Master Servicer shall cause, at its expense, the Security Instrument and
intervening assignments, if any, and the assignment of the Security Instrument
to the Trustee to be recorded not later than 180 days after the Closing Date.
With respect to any Cooperative Loans, the Seller will, promptly after the
Closing Date, cause the related financing statements (if not yet filed) and an
assignment thereof from the Seller to the Trustee to be filed in the appropriate
offices and will provide a copy thereof to the Trustee.
Section 2.02. ACCEPTANCE OF MORTGAGE LOANS BY TRUSTEE. (a) The Trustee
acknowledges receipt of, subject to further review and the exceptions which may
be noted pursuant to the procedures described below, the documents (or certified
copies thereof) delivered to it pursuant to Section 2.01 and declares that it
holds and will continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund delivered to it as
Trustee in trust for the use and benefit of all present and future Holders of
the Certificates. On the Closing Date (or, with respect to any Substitute
Mortgage Loan, within 5 Business Days after the receipt by the Trustee thereof),
the Trustee agrees, for the benefit of the Certificateholders, to review each
Mortgage File delivered to it to verify that such Mortgage File includes a
Mortgage Note and to execute and deliver, or cause to be executed and delivered,
to the Seller and the Master Servicers an Initial Certification substantially in
the form annexed hereto as Exhibit G. In conducting such review, the Trustee
will ascertain whether all required documents have been executed and received
and whether those documents relate, determined on the basis of the Mortgagor
name, original principal balance and loan number, to the Mortgage Loans it has
received, as identified in Exhibit B-1, Exhibit B-2 and Exhibit B-3 to this
Agreement, as supplemented (PROVIDED, HOWEVER, that with respect to those
documents described in subclauses (b)(iv), (b)(v) and (b)(vi) of Section 2.01,
the Trustee's obligations shall extend only to documents actually delivered
pursuant to such subsections). In performing any such review, the Trustee may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If the
Trustee finds any document constituting part of the Mortgage File not to have
been executed or received, or to be unrelated to the Mortgage Loans identified
in Exhibit B-1, Exhibit B-2 and Exhibit B-3 or to appear to be defective on its
face, the Trustee shall promptly notify BSMCC. BSMCC shall correct or cure any
such defect within 90 days from the date of notice from the Trustee of the
defect and if BSMCC fails to correct or cure the defect within such period, and
such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, BSMCC will, subject to Section
2.05, within 90 days from the Trustee's notification purchase such Mortgage Loan
at the Repurchase Price; PROVIDED, HOWEVER, that if such defect relates solely
to the inability of BSMCC to deliver the original
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Security Instrument or intervening assignments thereof, or a certified copy
because the originals of such documents, or a certified copy have not been
returned by the applicable jurisdiction, BSMCC shall not be required to purchase
such Mortgage Loan if BSMCC delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the event that
BSMCC cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that BSMCC
shall instead deliver a recording receipt of such recording office or, if such
receipt is not available, a certificate of a Servicing Officer confirming that
such documents have been accepted for recording, and delivery to the Trustee
shall be effected by BSMCC within thirty days of its receipt of the original
recorded document.
(b) No later than 180 days after the Closing Date, the Trustee will
review, for the benefit of the Certificateholders, the Mortgage Files delivered
to it and will execute and deliver or cause to be executed and delivered to the
Seller and the Master Servicers, a Final Certification substantially in the form
annexed hereto as Exhibit H. In conducting such review, the Trustee will
ascertain whether an original of each document required to be recorded has been
returned from the recording office with evidence of recording thereon or a
certified copy has been obtained from the recording office. If the Trustee finds
any document constituting part of the Mortgage File has not been received, or to
be unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B-1,
Exhibit B-2 and Exhibit B-3 or to appear defective on its face, the Trustee
shall promptly notify BSMCC (PROVIDED, HOWEVER, that with respect to those
documents described in subsection (b)(iv), (b)(v) and (b)(vi) of Section 2.01,
the Trustee's obligations shall extend only to the documents actually delivered
pursuant to such subsections). BSMCC shall correct or cure any such defect or
shall deliver to the Trustee an Opinion of Counsel to the effect that such
defect does not materially or adversely affect the interests of
Certificateholders in such Mortgage Loan within 90 days from the date of notice
from the Trustee of the defect and if BSMCC is unable to cure such defect within
such period, and if such defect materially and adversely affects the interests
of the Certificateholders in the related Mortgage Loan, BSMCC shall, subject to
Section 2.05, within 90 days from the Trustee's notification purchase such
Mortgage Loan at the Repurchase Price; PROVIDED, HOWEVER, that if such defect
relates solely to the inability of BSMCC to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy, because the
originals of such documents, or a certified copy, have not been returned by the
applicable jurisdiction, BSMCC shall not be required to purchase such Mortgage
Loan, if BSMCC delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by BSMCC in
accordance with Subsections 2.02(a) or (b) above, BSMCC shall provide the
Repurchase Price to the Trustee for deposit in the appropriate sub-account of
the Certificate Account and shall provide to the Trustee written notification
detailing the components of the Repurchase Price. Upon deposit of the Repurchase
Price in the appropriate sub-account of the Certificate Account, the Trustee
shall release to BSMCC the related Mortgage File and shall execute and deliver
all instruments of transfer or
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assignment, without recourse, furnished to it by BSMCC as are necessary to vest
in BSMCC title to and rights under the Mortgage Loan. Such purchase shall be
deemed to have occurred on the date on which the Repurchase Price in available
funds is received by the Trustee. The Trustee shall amend the Mortgage Loan
Schedules, which were previously delivered to it by Seller in a form agreed to
between the Seller and the Trustee, to reflect such repurchase and shall
promptly notify the Master Servicers and the Rating Agencies of such amendment.
The obligation of BSMCC to repurchase any Mortgage Loan as to which such a
defect in a constituent document exists shall be the sole remedy respecting such
defect available to the Certificateholders or to the Trustee on their behalf.
Section 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICERS. (a) CMC hereby represents and warrants with respect to CMC, and
IndyMac hereby represents and warrants with respect to IndyMac, to the Trustee
and, solely for purposes of clause (viii) of this Section 2.03, to BSMCC as of
the Closing Date that:
(i) It is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation and is
in good standing as a foreign corporation in each jurisdiction where
such qualification is necessary or is exempt from such qualification
or not required by applicable law to effect such qualification and,
for so long as it is a Master Servicer under this Agreement, will
remain a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, any state
of reincorporation or the laws of the United States of America and in
good standing as a foreign corporation in each jurisdiction where such
qualification is necessary (except, in the case of foreign corporation
qualification both on the date hereof and in the future, where the
failure so to qualify would not reasonably be expected to have a
material adverse effect on such Master Servicer's ability to enter
into this Agreement or to perform its obligations hereunder), and has
the corporate power and authority to perform its obligations under
this Agreement;
(ii) The execution and delivery of this Agreement have been duly
authorized by all requisite corporate action;
(iii) This Agreement, assuming due authorization, execution, and
delivery by the other parties hereto, will constitute its legal, valid
and binding obligation, enforceable in accordance with its terms,
except only as such enforcement may be limited by applicable Debtor
Relief Laws and that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or at law;
(iv) Its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not
(A) violate its certificate of incorporation or bylaws (B) to its
knowledge, violate any law or regulation, or any administrative or
judicial decree or order to which it is subject or (C) constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or
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result in the breach of, any material contract, agreement or other
instrument to which it is a party or which may be applicable to it or
any of its assets;
(v) To its best knowledge, after reasonable investigation, it is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or
governmental agency, which default would reasonably be expected to
have consequences that would materially and adversely affect its
financial condition or operations or its performance hereunder;
(vi) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of its business;
(vii) No litigation is pending or, to its best knowledge,
threatened against it, which could be reasonably expected to
materially and adversely affect its entering into this Agreement or
performing its obligations under this Agreement or which would have a
material adverse effect on its financial condition; and
(viii) Its computer programs, systems and applications used in
servicing the related Mortgage Loans will be replaced or modified and
maintained to operate in such a manner that at all times, including on
and after January 1, 2000, it can service the related Mortgage Loans
in accordance with the terms of this Agreement.
Section 2.04. ASSIGNMENT OF INTEREST IN THE MORTGAGE LOAN PURCHASE
AGREEMENT. (a) The Seller hereby assigns to the Trustee all of its right, title
and interest in the Mortgage Loan Purchase Agreement (but none of its
obligations) insofar as such contract relates to the representations and
warranties set forth in Exhibit C hereto regarding the Mortgage Loans (including
the substitution and repurchase obligations of BSMCC); provided that the
obligations of BSMCC to substitute or repurchase a Mortgage Loan shall be the
Trustee's and the Certificateholders' sole remedy for any breach thereof. At the
request of the Trustee, the Seller shall take such actions as may be necessary
to enforce the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
(b) If the Seller, CMC, IndyMac or the Trustee discovers a breach of
any of the representations and warranties set forth in Exhibit C or Section 7 of
the Mortgage Loan Purchase Agreement and such breach existed on the date the
representation and warranty was made, which breach materially and adversely
affects the value of the interests of Certificateholders or the Trustee in the
related Mortgage Loan, the party discovering the breach shall give prompt
written notice of the breach to the other parties. BSMCC within 90 days of its
discovery or receipt of notice that such breach has occurred (whichever occurs
earlier), shall cure the breach in all material respects or, subject to Section
2.05, shall purchase the Mortgage Loan or any property acquired with respect
thereto from the Trustee at the Repurchase Price; PROVIDED, HOWEVER, that if
there is a breach of any representation set forth in Exhibit C and the Mortgage
Loan or the related property acquired with
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respect thereto has been sold, then BSMCC shall pay, in lieu of the Repurchase
Price, any excess of the Repurchase Price over the Net Liquidation Proceeds
received upon such sale. (If the Net Liquidation Proceeds exceed the Repurchase
Price, any excess shall be paid to BSMCC to the extent not required by law to be
paid to the borrower.) Any such purchase by BSMCC shall be made by providing an
amount equal to the Repurchase Price to the Trustee for deposit in the
appropriate sub-account of the Certificate Account and the Trustee, upon deposit
of the Repurchase Price in the appropriate sub-account of the Certificate
Account and of written notification detailing the components of such Repurchase
Price, shall release to BSMCC the related Mortgage File and shall execute and
deliver all instruments of transfer or assignment furnished to it by BSMCC,
without recourse, as are necessary to vest in BSMCC title to and rights under
the Mortgage Loan or any property acquired with respect thereto. Such purchase
shall be deemed to have occurred on the date on which the Repurchase Price in
available funds is received by the Trustee. The Trustee shall amend the Mortgage
Loan Schedules to reflect such repurchase and shall promptly notify the Master
Servicers, and the Rating Agencies of such amendment. Enforcement of the
obligation of BSMCC, to purchase (or substitute a Substitute Mortgage Loan for)
any Mortgage Loan or any property acquired with respect thereto (or pay the
Repurchase Price as set forth in the above proviso) as to which a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Certificateholders or the Trustee on their behalf.
Section 2.05. SUBSTITUTION OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan
pursuant to Sections 2.02 or 2.04, BSMCC may, no later than the date by which
such purchase by BSMCC would otherwise be required, tender to the Trustee a
Substitute Mortgage Loan accompanied by an Officer's Certificate of BSMCC that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan"; PROVIDED, HOWEVER, that substitution
pursuant to this Section 2.05 in lieu of purchase shall not be permitted after
the termination of the two-year period beginning on the Startup Day. The Trustee
shall examine the Mortgage File for any Substitute Mortgage Loan in the manner
set forth in Section 2.02(a) and shall notify the related Master Servicer in
writing, within five Business Days after receipt, whether or not the documents
relating to the Substitute Mortgage Loan satisfy the requirements of the third
sentence of Subsection 2.02(a). Within two Business Days after such
notification, BSMCC shall provide to the Trustee for deposit in the appropriate
sub-account of the Certificate Account the amount, if any, by which the
Outstanding Principal Balance as of the next preceding Due Date of the Mortgage
Loan for which substitution is being made, after giving effect to Scheduled
Principal due on such date, exceeds the Outstanding Principal Balance as of such
date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal
due on such date, which amount shall be treated for the purposes of this
Agreement as if it were the payment by BSMCC of the Repurchase Price for the
purchase of a Mortgage Loan by BSMCC. After such notification to BSMCC and, if
any such excess exists, upon receipt of such deposit, the Trustee shall accept
such Substitute Mortgage Loan, which shall thereafter be deemed to be a Group 1,
Group 2, or Group 3 Mortgage Loan, as applicable, hereunder. In the event of
such a substitution, accrued interest on the Substitute Mortgage Loan for the
month in which the substitution occurs and any Principal Prepayments made
thereon during such month shall be the property of the Trust Fund and accrued
interest for such month on the Mortgage Loan for which the substitution is made
and any
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Principal Prepayments made thereon during such month shall be the property of
BSMCC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date
in the month of substitution shall be the property of BSMCC and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan, the Trustee shall release to BSMCC the related
Mortgage File related to any Mortgage Loan released pursuant to this Section
2.05 and shall execute and deliver all instruments of transfer or assignment,
without recourse, in form as provided to it as are necessary to vest in BSMCC
title to and rights under any Mortgage Loan released pursuant to this Section
2.05. BSMCC shall deliver the documents related to the Substitute Mortgage Loan
in accordance with the provisions of Subsections 2.01(b) and 2.02(b), with the
date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date
for purposes of the time periods set forth in those Subsections. The
representations and warranties set forth in Exhibit C shall be deemed to have
been made by BSMCC with respect to each Substitute Mortgage Loan as of the date
of acceptance of such Mortgage Loan by the Trustee. The Trustee shall amend the
Mortgage Loan Schedules to reflect such substitution and shall provide a copy of
such amended Mortgage Loan Schedules to the applicable Master Servicer, and the
Rating Agencies.
Section 2.06. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The
Trustee hereby represents and warrants to the Seller, CMC and IndyMac as of the
Closing Date (and in the case of paragraphs (iv) and (v) below throughout the
term of the Agreement), that:
(i) The Trustee is a national bank duly organized, validly
existing and in good standing under the laws of the United States with
a principal place of business in Minneapolis, Minnesota;
(ii) Subject to the right of the Trustee to appoint a co-trustee
or separate trustee under Section 9.11 hereof in order to meet the
legal requirements of a particular jurisdiction, the Trustee has full
power, authority and legal right to execute and deliver this Agreement
and to perform its obligations under this Agreement and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement and the Certificates;
(iii) To the best of the Trustee's knowledge, after reasonable
investigation, the execution and delivery by the Trustee of this
Agreement and the Certificates and the performance by the Trustee of
its obligations under this Agreement and the Certificates will not
violate any provision of the Trustee's Articles of Incorporation or
By-Laws or any law or regulation governing the Trustee or any order,
writ, judgment or decree of any court, arbitrator or governmental
authority or agency applicable to the Trustee or any of its assets. To
the best of the Trustee's knowledge, after reasonable investigation,
such execution, delivery and performance will not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action with
respect to, any governmental authority or agency regulating the
fiduciary activities of a
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national bank. To the best of the Trustee's knowledge, after
reasonable investigation, such execution, delivery and performance
will not conflict with, or result in a breach or violation of, any
material indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Trustee is a party or by which it or its
properties is bound;
(iv) This Agreement has been duly executed and delivered by the
Trustee. This Agreement, when executed and delivered by the other
parties hereto, will constitute the valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as the enforcement thereof may be
limited by applicable Debtor Relief Laws and that certain equitable
remedies may not be available regardless of whether enforcement is
sought in equity or at law;
(v) All funds received by the Trustee and required to be
deposited in the Certificate Account pursuant to this Agreement will
be promptly so deposited; and
(vi) The Trustee's computer programs, systems and applications
maintained used in connection with its duties as trustee under this
Agreement will be replaced or modified and maintained to operate in
such a manner that on and after January 1, 2000, it can perform its
obligations hereunder in accordance with the terms of this Agreement.
Section 2.07. ISSUANCE OF CERTIFICATES. The Trustee acknowledges the
assignment to it of the Mortgage Loans and the other assets comprising the Trust
Fund and, concurrently therewith, has signed, and countersigned and delivered to
the Seller, in exchange therefor, Certificates in such authorized denominations
representing such Fractional Undivided Interests as the Seller has requested.
The Trustee agrees that it will hold the Mortgage Loans and such other assets as
may from time to time be delivered to it segregated on the books of the Trustee
in trust for the benefit of the Certificateholders.
Section 2.08. REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER.
The Seller hereby represents and warrants to the Trustee, CMC and IndyMac as
follows:
(i) the Seller (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and (b) is qualified and in good standing as a foreign corporation to
do business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not reasonably
be expected to have a material adverse effect on the Seller's business
as presently conducted or on the Purchaser's ability to enter into
this Agreement and to consummate the transactions contemplated hereby;
(ii) the Seller has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and
perform its obligations under this Agreement;
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(iii) the execution and delivery by the Seller of this Agreement
have been duly authorized by all necessary corporate action on the
part of the Seller; and neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Seller or its properties or the
articles of incorporation or by-laws of the Seller, except those
conflicts, breaches or defaults which would not reasonably be expected
to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the Seller of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or
agency, except those consents, approvals, notices, registrations or
other actions as have already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Seller and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of
the Seller enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Seller, threatened against the Seller, before or
by any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this
Agreement or (ii) with respect to any other matter which in the
judgment of the Seller will be determined adversely to the Seller and
will if determined adversely to the Seller materially and adversely
affect the Seller's ability to enter into this Agreement or perform
its obligations under this Agreement; and the Seller is not in default
with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
(vii) immediately prior to the transfer and assignment to the
Trustee, each Mortgage Note and each Mortgage were not subject to an
assignment or pledge, and the Seller had good and marketable title to
and was the sole owner thereof and had full right to transfer and sell
such Mortgage Loan to the Trustee free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest.
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ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. MASTER SERVICERS TO ASSURE SERVICING. (a) The CMC Master
Servicer and the IndyMac Master Servicer shall supervise, or take such actions
as are necessary to ensure, the servicing and administration of the CMC Mortgage
Loans and the IndyMac Mortgage Loans, respectively, and any related REO Property
in accordance with this Agreement and its normal servicing practices (including
making any Servicing Advances), which generally conform to the standards of an
institution prudently servicing mortgage loans for its own account and shall
have full authority to do anything it reasonably deems appropriate or desirable
in connection with such servicing and administration. Each Master Servicer may
perform its responsibilities relating to servicing through other agents or
independent contractors, but shall not thereby be released from any of its
responsibilities as hereinafter set forth. The authority of each Master
Servicer, in its capacity as master servicer, shall include, without limitation,
the power to (i) consult with and advise any Sub-Servicer regarding
administration of a related Mortgage Loan, (ii) approve any recommendation by a
Sub-Servicer to foreclose on a related Mortgage Loan, (iii) supervise the filing
and collection of insurance claims and take or cause to be taken such actions on
behalf of the insured person thereunder as shall be reasonably necessary to
prevent the denial of coverage thereunder, and (iv) effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing a related
Mortgage Loan, including the employment of attorneys, the institution of legal
proceedings, the collection of deficiency judgments, the acceptance of
compromise proposals, the filing of claims under any Primary Mortgage Insurance
Policy and any other matter pertaining to a delinquent Mortgage Loan. The
authority of each Master Servicer shall include, in addition, the power on
behalf of the Certificateholders, the Trustee or any of them to (i) execute and
deliver customary consents or waivers and other instruments and documents, (ii)
consent to transfers of any related Mortgaged Property and assumptions of the
related Mortgage Notes and Security Instruments (in the manner provided in this
Agreement) and (iii) collect any Insurance Proceeds and Liquidation Proceeds.
Without limiting the generality of the foregoing, each Master Servicer may, and
is hereby authorized, and empowered by the Trustee to, execute and deliver, on
behalf of itself, the Certificateholders, the Trustee, or any of them, any
instruments of satisfaction, cancellation, partial or full release, discharge
and all other comparable instruments, with respect to the related Mortgage
Loans, the Insurance Policies and the accounts related thereto, and the
Mortgaged Properties. Each Master Servicer may exercise this power in its own
name or in the name of a Sub-Servicer.
(b) Notwithstanding the provisions of Subsection 3.01(a), neither
Master Servicer shall take any action inconsistent with generally accepted good
servicing procedures and practices and with the interest of the Trustee or the
Certificateholders in the related Mortgage Loans or with the rights and
interests of the Trustee or the Certificateholders under this Agreement.
(c) The Trustee shall furnish each Master Servicer with any powers of
attorney and other documents in form as provided to it necessary or appropriate
to enable such Master Servicer to service and administer the related Mortgage
Loans and REO Property.
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Section 3.02. SUB-SERVICING AGREEMENTS BETWEEN A MASTER SERVICER AND
SUB-SERVICERS. (a) Each Master Servicer may enter into Sub-Servicing Agreements
with Sub-Servicers for the servicing and administration of the related Mortgage
Loans and for the performance of any and all other activities of such Master
Servicer hereunder. Each Sub-Servicer shall be either (i) an institution the
accounts of which are insured by the FDIC or (ii) another entity that engages in
the business of originating or servicing mortgage loans, and in either case
shall be authorized to transact business in the state or states in which the
related Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Sub-Servicer to perform its obligations
hereunder and under the Sub-Servicing Agreement, and in either case shall be a
Freddie Mac or Fannie Mae approved mortgage servicer. Any Sub-Servicing
Agreement entered into by a Master Servicer shall include the provision that
such Agreement may be immediately terminated (x) with cause and without any
termination fee by any Master Servicer hereunder other than CMC or IndyMac or
(y) without cause in which case the relevant Master Servicer shall be
responsible for any termination fee or penalty resulting therefrom. In addition,
any Sub-Servicing Agreement shall provide for servicing of the related Mortgage
Loans consistent with the terms of this Agreement. With the consent of the
Trustee, which consent shall not be unreasonably withheld, each Master Servicer
and the Sub-Servicers may enter into Sub-Servicing Agreements and make
amendments to the Sub-Servicing Agreements or enter into different forms of
Sub-Servicing Agreements; provided, however, that any such amendments or
different forms shall be consistent with and not violate the provisions of this
Agreement, and that no such amendment or different form shall be made or entered
into which could be reasonably expected to be materially adverse to the
interests of the Certificateholders, without the consent of the Holders of
Certificates entitled to at least 51% of the Fractional Undivided Interests of
all the Certificates in the aggregate.
(b) As part of its servicing activities hereunder, each Master
Servicer, for the benefit of the Trustee and the Certificateholders, shall use
its best reasonable efforts to enforce the obligations of each Sub-Servicer
under the related Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as such Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. Each Master Servicer shall pay the costs of such enforcement at
its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys' fees against the
party against whom such enforcement is directed.
Section 3.03. SUCCESSOR SUB-SERVICERS. Each Master Servicer shall be
entitled to terminate any Sub-Servicing Agreement that may exist in accordance
with the terms and conditions of such Sub-Servicing Agreement and without any
limitation by virtue of this Agreement; PROVIDED, HOWEVER, that upon
termination, such Master Servicer shall either act as servicer of the related
Mortgage Loan or enter into an appropriate contract with a successor
Sub-Servicer pursuant to which
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such successor Sub-Servicer will be bound by all relevant terms of the related
Sub-Servicing Agreement pertaining to the servicing of such Mortgage Loan.
Section 3.04. LIABILITY OF EACH MASTER SERVICER. (a) Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between a Master Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise, the CMC Master
Servicer and the IndyMac Master Servicer shall under all circumstances remain
obligated and primarily liable to the Trustee and the Certificateholders for the
servicing and administering of the CMC Mortgage Loans and the IndyMac Mortgage
Loans, respectively, and any related REO Property in accordance with this
Agreement. The obligations and liability of the CMC Master Servicer and the
IndyMac Master Servicer shall not be diminished by virtue of Sub-Servicing
Agreements or by virtue of indemnification of CMC or IndyMac by any
Sub-Servicer, or any other Person. The obligations and liability of each Master
Servicer shall remain of the same nature and under the same terms and conditions
as if such Master Servicer alone were servicing and administering the related
Mortgage Loans. Each Master Servicer shall, however, be entitled to enter into
indemnification agreements with any Sub-Servicer or other Person and nothing in
this Agreement shall be deemed to limit or modify such indemnification. For the
purposes of this Agreement, the CMC Master Servicer and the IndyMac Master
Servicer shall be deemed to have received any payment on a CMC Mortgage Loan or
an IndyMac Mortgage Loan, respectively, on the date the Sub-Servicer received
such payment; PROVIDED, HOWEVER, that this sentence shall not apply to the
Trustee acting as a Master Servicer; PROVIDED, FURTHER, HOWEVER, that the
foregoing provision shall not affect the obligation of a Master Servicer if it
is also the Trustee to advance amounts which are not Nonrecoverable Advances.
(b) Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the relevant Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.05.
Section 3.05. ASSUMPTION OF SUB-SERVICING AGREEMENTS BY TRUSTEE. (a)
If the Trustee or its designee shall assume the master servicing obligations of
either Master Servicer in accordance with Section 8.02, the Trustee, to the
extent necessary to permit the Trustee to carry out the provisions of Section
8.02 with respect to the Mortgage Loans, shall succeed to all of the rights and
obligations of such Master Servicer under each of the Sub-Servicing Agreements.
In such event, the Trustee or its designee as the successor master servicer
shall be deemed to have assumed all of such Master Servicer's rights and
obligations therein and to have replaced such Master Servicer as a party to such
Sub-Servicing Agreements to the same extent as if such Sub-Servicing Agreements
had been assigned to the Trustee or its designee as a successor master servicer,
except that the Trustee or its designee as a successor master servicer shall not
be deemed to have assumed any obligations or liabilities of such Master Servicer
arising prior to such assumption and such Master Servicer shall not thereby be
relieved of any liability or obligations under such Sub-Servicing Agreements.
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(b) In the event that the Trustee or its designee as successor master
servicer for the Trustee assumes the servicing obligations of either Master
Servicer under Section 8.02, upon the reasonable request of the Trustee or such
designee as successor master servicer, such Master Servicer shall at its own
expense deliver to the Trustee, or at its written request to such designee,
photocopies of all documents and records, electronic or otherwise, relating to
the Sub-Servicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable best efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreements, or
responsibilities hereunder to the Trustee, or at its written request to such
designee as successor master servicer.
Section 3.06. COLLECTION OF MORTGAGE LOAN PAYMENTS. (a) Each Master
Servicer will make remittances itself or will coordinate and monitor remittances
by Sub-Servicers to the Trustee with respect to the related Mortgage Loans in
accordance with this Agreement.
(b) Each Master Servicer shall make its reasonable best efforts to
collect or cause to be collected all payments required under the terms and
provisions of the related Mortgage Loans and shall follow, and use its best
efforts to cause Sub-Servicers to follow, collection procedures comparable to
the collection procedures of prudent mortgage lenders servicing mortgage loans
for their own account to the extent such procedures shall be consistent with
this Agreement. Consistent with the foregoing, each Master Servicer may in its
discretion (i) waive or permit to be waived any late payment charge, prepayment
charge, assumption fee, or any penalty interest in connection with the
prepayment of a related Mortgage Loan and (ii) suspend or temporarily reduce or
permit to be suspended or temporarily reduced regular monthly payments for a
period of up to six months, or arrange or permit an arrangement with a Mortgagor
for a scheduled liquidation of delinquencies. In the event either Master
Servicer shall consent to the deferment of the due dates for payments due on a
related Mortgage Note, such Master Servicer shall nonetheless make a Monthly
Advance or shall cause the related Sub-Servicer to make an advance to the same
extent as if such installment were due, owing and delinquent and had not been
deferred through liquidation of the Mortgaged Property; PROVIDED, HOWEVER, that
the obligation of such Master Servicer to make a Monthly Advance shall apply
only to the extent that such Master Servicer believes, in good faith, that such
advances are not Nonrecoverable Advances.
(c) Notwithstanding anything in this Agreement to the contrary,
neither Master Servicer may make any advances of amounts due in the future with
respect to a related Mortgage Loan and such Master Servicer shall not permit (i)
any modification with respect to any related Mortgage Loan that would change the
Mortgage Interest Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan or (ii) any modification, waiver or
amendment of any term of any related Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
(B) cause any Series REMIC to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
startup date" under the REMIC Provisions.
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Section 3.07. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS;
SERVICING ACCOUNTS. (a) Each Master Servicer shall establish and maintain or
cause the Sub-Servicers to establish and maintain, in addition to the Protected
Accounts, one or more Servicing Accounts. Each Master Servicer or a Sub-Servicer
will deposit and retain therein all otherwise unapplied collections from the
Mortgagors, including amounts collected for the payment of taxes, assessments,
insurance premiums, or comparable items as agent of the Mortgagors.
(b) The deposits in the Servicing Accounts shall be held in a
Designated Depository Institution in an account held in trust by each Master
Servicer or a Sub-Servicer as Trustee of Taxes and Insurance Custodial Account
for borrowers and for CMC or IndyMac, as the case may be (and its successors and
assigns) acting on its own behalf and for CMC or IndyMac, as the case may be, as
agent for holders of various pass-through securities and other interests in
mortgage loans sold by it; and agent for various mortgagors, as their interests
may appear or under such other designation as may be permitted by a
Sub-Servicing Agreement. The amount at any time credited to a Servicing Account
must be fully insured by the FDIC, or, to the extent that such deposits exceed
the limits of such insurance, such excess must be (i) transferred to another
fully insured account in another Designated Depository Institution or (ii) if
permitted by applicable law, invested in Permitted Investments held in trust by
the relevant Master Servicer or a Sub-Servicer as described above and maturing,
or be subject to redemption or withdrawal, no later than the date on which such
funds are required to be withdrawn, and in no event later than 45 days after the
date of investment. Each Master Servicer may, or may permit a Sub-Servicer to,
establish Servicing Accounts not conforming to the foregoing requirements to the
extent that such Servicing Accounts are Rating Agency Eligible Accounts.
Withdrawals of amounts from the Servicing Accounts may be made only to effect
timely payment of taxes, assessments, insurance premiums, or comparable items,
to transfer previously unapplied collections to a Protected Account, to
reimburse the relevant Master Servicer or a Sub-Servicer for any advances made
with respect to such items, to refund to any Mortgagors any sums as may be
determined to be overages, to pay interest, if required, to Mortgagors on
balances in the Servicing Accounts, to remove any amounts deposited in error, or
to clear and terminate the Servicing Accounts at or any time after the
termination of this Agreement in accordance with Section 10.01.
Section 3.08. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS. Each Master Servicer shall provide, and shall
cause any Sub-Servicer to provide, to the Trustee and the Seller access to the
records and documentation regarding the related Mortgage Loans and REO Property
and the servicing thereof and to the FDIC, and the supervisory agents and
examiners of the FDIC (to which the Trustee shall also provide) access to the
documentation regarding the related Mortgage Loans required by applicable
regulations, such access being afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
related Master Servicer, the Sub-Servicers or the Trustee that are designated by
these entities; PROVIDED, HOWEVER, that, unless otherwise required by law, the
Trustee, the related Master Servicer or the Sub-Servicer shall not be required
to provide access to such records and documentation if the provision thereof
would violate the legal right to privacy of any Mortgagor
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PROVIDED, FURTHER, HOWEVER, that the Trustee and the Seller shall coordinate
their requests for such access so as not to impose an unreasonable burden on, or
cause an interruption of, the business of the related Master Servicer or any
Sub-Servicer. The related Master Servicer, the Sub-Servicers and the Trustee
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at a
charge that covers their own actual out-of-pocket costs.
Section 3.09. MAINTENANCE OF PRIMARY MORTGAGE INSURANCE POLICIES;
COLLECTION THEREUNDER. Each Master Servicer shall, or shall cause the related
Sub-Servicer to, in accordance with applicable law (including the Federal
Homeowner's Protection Act of 1998), exercise its best reasonable efforts to
maintain and keep in full force and effect each Primary Mortgage Insurance
Policy by a Qualified Insurer, or other insurer satisfactory to the Rating
Agencies, with respect to each related conventional Mortgage Loan as to which as
of the Cut-off Date such a Primary Mortgage Insurance Policy was in effect (or,
in the case of a Substitute Mortgage Loan, the date of substitution) and the
original principal amount of the related Mortgage Note exceeded 80% of the
Original Value in an amount at least equal to the excess of such original
principal amount over 75% of such Original Value until the principal amount of
any such Mortgage Loan is reduced below 80% of the Original Value or, based upon
a new appraisal, the principal amount of such Mortgage Loan represents less than
80% of the new appraised value. Each Master Servicer shall, or shall cause the
related Sub-Servicer to, effect the timely payment of the premium on each
Primary Mortgage Insurance Policy. Each Master Servicer and the related
Sub-Servicer shall have the power to substitute for any Primary Mortgage
Insurance Policy another substantially equivalent policy issued by another
Qualified Insurer; PROVIDED THAT such substitution is subject to the condition,
to be evidenced by a writing from each Rating Agency, that it would not cause
the ratings on the Certificates to be downgraded or withdrawn.
Section 3.10. MAINTENANCE OF HAZARD INSURANCE AND FIDELITY COVERAGE.
(a) Each Master Servicer shall maintain and keep, or cause each Sub-Servicer to
maintain and keep, with respect to each related Mortgage Loan and each REO
Property, in full force and effect hazard insurance (fire insurance with
extended coverage) equal to at least the lesser of the Outstanding Principal
Balance of the Mortgage Loan or the current replacement cost of the Mortgaged
Property, and containing a standard mortgagee clause; PROVIDED, HOWEVER, that
the amount of hazard insurance may not be less than the amount necessary to
prevent loss due to the application of any co-insurance provision of the related
policy. Unless applicable state law requires a higher deductible, the deductible
on such hazard insurance policy may be no more than $1000 or 1% of the
applicable amount of coverage, whichever is less. In the case of a condominium
unit or a unit in a planned unit development, the required hazard insurance
shall take the form of a multiperil policy covering the entire condominium
project or planned unit development, in an amount equal to at least 100% of the
insurable value based on replacement cost.
(b) Any amounts collected by a Master Servicer or a Sub-Servicer under
any such hazard insurance policy (other than amounts to be applied to the
restoration or repair of the Mortgaged Property or amounts released to the
Mortgagor in accordance with such Master Servicer's or
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Sub-Servicer's normal servicing procedures, the terms of the Mortgage Note, the
Security Instrument or applicable law) shall be deposited initially in a
Protected Account, for transmittal to the appropriate sub-account of the
Certificate Account, subject to withdrawal pursuant to Section 4.03.
(c) Any cost incurred by a Master Servicer or a Sub-Servicer in
maintaining any such hazard insurance policy shall not be added to the amount
owing under the related Mortgage Loan for the purpose of calculating monthly
distributions to Certificateholders, notwithstanding that the terms of such
Mortgage Loan so permit. Such costs shall be recoverable by such Master Servicer
or Sub-Servicer out of related late payments by the Mortgagor or out of
Insurance Proceeds or Liquidation Proceeds or by the Master Servicer from the
Repurchase Price, to the extent permitted by Section 4.03.
(d) No earthquake or other additional insurance is to be required of
any Mortgagor or maintained on property acquired with respect to a Security
Instrument other than pursuant to such applicable laws and regulations as shall
at any time be in force and shall require such additional insurance. Each Master
Servicer shall cause an ongoing review to be performed of the related Mortgage
Loans to determine which, if any, of the Mortgaged Properties are located in a
federally designated special flood hazard area, and for each Mortgaged Property
found to be located in a federally designated special flood hazard area, the
related Master Servicer shall use its best reasonable efforts to cause with
respect to the related Mortgage Loans and each REO Property, flood insurance (to
the extent available and in accordance with mortgage servicing industry
practice) to be maintained. Such flood insurance shall cover the related
Mortgaged Property, including all items taken into account in arriving at the
Appraised Value on which the Mortgage Loan was based, and shall be in an amount
meeting the current requirements of Fannie Mae or Freddie Mac, but not more than
the maximum amount of such insurance available for the related Mortgaged
Property under either the regular or emergency programs of the National Flood
Insurance Program (assuming that the area in which such Mortgaged Property is
located is participating in such program). Unless applicable state law requires
a higher deductible, the deductible on such flood insurance may not exceed
$1,000 or 1% of the applicable amount of coverage, whichever is less.
(e) If insurance has not been maintained complying with Subsections
3.10(a) and (d) and there shall have been a loss which would have been covered
by such insurance had it been maintained, the related Master Servicer shall pay,
or cause the related Sub-Servicer to pay, for any necessary repairs.
(f) The related Master Servicer shall present, or cause the related
Sub-Servicer to present, if it is a permitted claimant, claims under the related
hazard insurance or flood insurance policy.
(g) Each Master Servicer shall obtain and maintain at its own expense
and for the duration of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy and shall cause each Sub-Servicer to obtain and
maintain an errors and omissions insurance policy covering such Sub-Servicer's
officers, employees and other persons acting on its behalf in connection with
its activities under this Agreement. The amount of coverage shall be at least
equal
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to the coverage maintained by the related Master Servicer acceptable to Fannie
Mae or Freddie Mac to service loans for it or otherwise in an amount as is
commercially available at a cost that is generally not regarded as excessive by
industry standards. Each Master Servicer shall promptly notify the Trustee of
any material change in the terms of such bond or policy. Each Master Servicer
shall provide annually to the Trustee a certificate of insurance that such bond
and policy are in effect. If any such bond or policy ceases to be in effect,
each Master Servicer shall, to the extent possible, give the Trustee ten days'
notice prior to any such cessation and shall use its best efforts to obtain a
comparable replacement bond or policy, as the case may be. Any amounts relating
to the Mortgage Loans collected under such bond or policy shall be remitted to
the appropriate sub-account of the Certificate Account to the extent that such
amounts have not previously been paid to such account.
Section 3.11. DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. (a) In any
case in which the CMC Master Servicer is notified by any Mortgagor or
Sub-Servicer that a Mortgaged Property relating to a CMC Mortgage Loan has been
or is about to be conveyed by the Mortgagor, or the IndyMac Master Servicer is
notified by any Mortgagor or Sub-Servicer that a Mortgaged Property relating to
an IndyMac Mortgage Loan has been or is about to be conveyed to the Mortgagor,
the applicable Master Servicer shall enforce, or shall instruct such
Sub-Servicer to enforce, any due-on-sale clause contained in the related
Security Instrument to the extent permitted under the terms of the related
Mortgage Note and by applicable law unless such Master Servicer reasonably
believes such enforcement is likely to result in legal action by the Mortgagor.
If a Master Servicer reasonably believes that such due-on-sale clause cannot be
enforced under applicable law or if the related Mortgage Loan does not contain a
due-on-sale clause, such Master Servicer is authorized, and may authorize any
Sub-Servicer, to consent to a conveyance subject to the lien of the Mortgage,
and to take or enter into an assumption agreement from or with the Person to
whom such property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the related Mortgage Note and unless prohibited by
applicable state law, such Mortgagor remains liable thereon, on condition,
however, that the related Mortgage Loan shall continue to be covered (if so
covered before the Master Servicer or the related Sub-Servicer enters into such
agreement) by any Primary Mortgage Insurance Policy. Each Master Servicer shall
notify the Trustee, whenever possible, before the completion of such assumption
agreement, and shall forward to the Trustee the original copy of such assumption
agreement, which copy shall be added by the Trustee to the related Mortgage File
and which shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof. In connection with any such assumption agreement, the interest rate on
the related Mortgage Loan shall not be changed and no other material alterations
in the Mortgage Loan shall be made. Any fee or additional interest collected by
a Master Servicer or Sub-Servicer for consenting to any such conveyance or
entering into any such assumption agreement may be retained by the Master
Servicer or the related Sub-Servicer as additional servicing compensation.
(b) Notwithstanding the foregoing paragraph or any other provision of
this Agreement, neither of the Master Servicers shall be deemed to be in
default, breach or any other violation of its obligations hereunder by reason of
any assumption of a related Mortgage Loan by operation of law or any conveyance
by the Mortgagor of the related Mortgaged Property or assumption of a Mortgage
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Loan which such Master Servicer reasonably believes, based on prudent servicing
standards, it may be restricted by law from preventing, for any reason
whatsoever or if the exercise of such right would impair or threaten to impair
any recovery under any applicable Insurance Policy, or, in such Master
Servicer's judgment, be reasonably, likely to result in legal action by the
Mortgagor or would otherwise adversely affect the Certificateholders.
Section 3.12. REALIZATION UPON DEFAULTED MORTGAGE LOANS. (a) Each
Master Servicer shall, or shall direct the related Sub-Servicer to, foreclose
upon or otherwise comparably convert the ownership of properties securing any
related Mortgage Loans that come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.06 except that such Master Servicer shall not, and shall
not direct the related Sub-Servicer, if any, to, foreclose upon or otherwise
comparably convert a Mortgaged Property if there is evidence of environmental
hazards or toxic waste thereon and such Master Servicer determines it would be
imprudent to do so or not in accordance with appropriate servicing standards.
Each Master Servicer can conclusively rely on results of third party inspections
from parties it reasonably believes are qualified to conduct such inspections.
In connection with such foreclosure or other conversion, each Master Servicer in
conjunction with the related Sub-Servicer, if any, shall use its best reasonable
efforts to preserve REO Property and to realize upon related defaulted Mortgage
Loans in such manner as to maximize the receipt of principal and interest by the
Certificateholders, taking into account, among other things, the timing of
foreclosure and the considerations set forth in Subsection 3.12(b). The
foregoing is subject to the proviso that a Master Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines in good faith (i) that such
restoration or foreclosure will increase the proceeds of liquidation of the
related Mortgage Loan to Certificateholders after reimbursement to itself for
such expenses and (ii) that such expenses will be recoverable to it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of reimbursements from the Certificate Account pursuant to Section
4.03) or through Insurance Proceeds (respecting which it shall have similar
priority). Each Master Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; PROVIDED, HOWEVER, that it
shall be entitled to reimbursement thereof (as well as its normal servicing
compensation), and in respect of such Master Servicer only, to receive Excess
Liquidation Proceeds as additional servicing compensation to the extent that
transfers or withdrawals from the Certificate Account with respect thereto are
permitted under Section 4.03. Any income from or other funds (net of any income
taxes) generated by REO Property shall be deemed for purposes of this Agreement
to be Insurance Proceeds.
(b) The Trust Fund shall not acquire any real property (or any
personal property incident to such real property) except in connection with a
default or reasonably foreseeable default of a Mortgage Loan. In the event that
the Trust Fund acquires any real property (or personal property incident to such
real property) in connection with a default or reasonably foreseeable default of
a Mortgage Loan, such property shall be disposed of by the Trust Fund before the
close of the third taxable year following the taxable year in which the Trust
Fund acquired such property (the "grace period") unless the Trustee shall have
received a REMIC Opinion with respect to such longer
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retention or a Master Servicer applies for and receives an extension of the
grace period under Section 856(e)(3) of the Code, in which case such grace
period described above will be extended by the period set forth in such REMIC
Opinion or approved application, as the case may be. The Trustee shall have no
obligation to pay for such REMIC Opinion.
Section 3.13. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES. (a)
Upon payment in full of any Mortgage Loan or the receipt by the related Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Master Servicer will immediately notify the
Trustee by delivering two copies (one of which will be returned to the Master
Servicer with the Mortgage File) of a certification signed by a Servicing
Officer in the Form of Exhibit D, or in a mutually agreeable electronic format
which will, in lieu of a signature on its face, originate from a Servicing
Officer (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account have been or will be so
deposited in the appropriate sub-account thereof), and shall request delivery to
the related Master Servicer or a Sub-Servicer, as the case may be, of the
Mortgage File. Upon receipt of such certification and request, the Trustee shall
promptly, but in no event later than five Business Days, release the related
Mortgage File to the related Master Servicer or a Sub-Servicer and execute and
deliver to the related Master Servicer, without recourse, the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Security Instrument (furnished by the
related Master Servicer), together with the Mortgage Note with written evidence
of cancellation thereon. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan or collection under a Required Insurance
Policy, the related Master Servicer shall deliver to the Trustee two copies (one
of which will be returned to the Master Servicer with the Mortgage File) of a
Request for Release signed by a Servicing Officer on behalf of the related
Master Servicer in substantially the form attached as Exhibit D hereto, or in a
mutually agreeable electronic format which will, in lieu of a signature on its
face, originate from a Servicing Officer. Upon receipt of the Request for
Release, the Trustee shall deliver the Mortgage File or any document therein to
the related Master Servicer or Sub-Servicer, as the case may be.
(c) Each Master Servicer shall cause each Mortgage File or any
document therein released pursuant to Subsection 3.13(b) to be returned to the
Trustee when the need therefor no longer exists, unless the related Mortgage
Loan has become a Liquidated Mortgage Loan and the Liquidation Proceeds relating
to the Mortgage Loan have been deposited in the appropriate sub-account of the
Certificate Account or such Mortgage File is being used to pursue foreclosure or
other legal proceedings. Prior to return of a Mortgage File or any document to
the Trustee, the related Master Servicer, the related Insurer or Sub-Servicer to
whom such file or document was delivered shall retain such file or document in
its respective control unless the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, to initiate or pursue legal action or other proceedings for the
foreclosure of the Mortgaged Property
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either judicially or non-judicially, and the related Master Servicer has
delivered to the Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. If a related
Mortgage Loan becomes a Liquidated Mortgage Loan, the related Master Servicer
shall deliver the Request for Release with respect thereto to the Trustee upon
deposit of the related Liquidation Proceeds in the appropriate sub-account of
the Certificate Account.
(d) The Trustee shall execute and deliver to the related Master
Servicer any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Security Instrument; (iii) obtain a
deficiency judgment against the Mortgagor; or (iv) enforce any other rights or
remedies provided by the Mortgage Note or Security Instrument or otherwise
available at law or equity. Together with such documents or pleadings the
related Master Servicer shall deliver to the Trustee a certificate of a
Servicing Officer in which it requests the Trustee to execute the pleadings or
documents. The certificate shall certify and explain the reasons for which the
pleadings or documents are required. It shall further certify that the Trustee's
execution and delivery of the pleadings or documents will not invalidate any
insurance coverage under the Required Insurance Policies or invalidate or
otherwise affect the lien of the Security Instrument, except for the termination
of such a lien upon completion of the foreclosure or trustee's sale.
Section 3.14. SERVICING AND MASTER SERVICING COMPENSATION. (a) As
compensation for its activities hereunder, the CMC Master Servicer shall be
entitled to receive the CMC Master Servicing Fee from full payments of accrued
interest on each CMC Mortgage Loan and the IndyMac Master Servicer shall be
entitled to receive the IndyMac Master Servicing Fee from full payments of
accrued interest on each IndyMac Mortgage Loan, in each case subject to each
Master Servicer's obligation to pay Compensating Interest Payments pursuant to
Section 6.07.
(b) Each Master Servicer may retain additional servicing compensation
in the form of prepayment charges, if any, assumption fees, tax service fees,
fees for statement of account or payoff, late payment charges, interest on
amounts deposited in any Accounts or Permitted Investments of such amounts, or
otherwise. Each Master Servicer is also entitled to receive Excess Liquidation
Proceeds as additional servicing compensation. Each Master Servicer shall be
required to pay all expenses it incurs in connection with servicing activities
under this Agreement, including fees and expenses to Sub-Servicers, and shall
not be entitled to reimbursement except as provided in this Agreement. Expenses
to be paid by a Master Servicer under this Subsection 3.14(b) shall include
payment of the expenses of the accountants retained pursuant to Section 3.16.
Section 3.15. ANNUAL STATEMENT OF COMPLIANCE. Within 120 days after
December 31st of each year, commencing December 1999, each Master Servicer at
its own expense, shall deliver to the Trustee, with a copy to the Rating
Agencies, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Master Servicer during the preceding fiscal
year or applicable portion thereof and of performance under this Agreement has
been made under such
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officer's supervision, (ii) to the best of such officer's knowledge, based on
such review, such Master Servicer has fulfilled all its obligations under this
Agreement for such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof including the steps being taken by such Master
Servicer to remedy such default; (iii) a review of the activities of each
Sub-Servicer, if any, during the Sub-Servicer's most recently ended fiscal year
on or prior to such December 31st and its performance under its Sub-Servicing
Agreement has been made under such Officer's supervision; and (iv) to the best
of the Servicing Officer's knowledge, based on his review and the certification
of an officer of the Sub-Servicer (unless the Servicing Officer has reason to
believe that reliance on such certification is not justified), either each
Sub-Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement and its Sub-Servicing Agreement in all material
respects throughout the year, or, if there has been a default in performance or
fulfillment of any such duties, responsibilities or obligations, specifying the
nature and status of each such default known to the Servicing Officer. Copies of
such statements shall be provided by each Master Servicer to the
Certificateholders upon request or by the Trustee at the expense of such Master
Servicer should such Master Servicer fail to provide such copies.
Section 3.16. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
(a) Within 120 days after December 31st of each year, commencing December 1999,
each Master Servicer, at its expense, shall cause a firm of Independent public
accountants who are members of the American Institute of Certified Public
Accountants to furnish a statement to such Master Servicer, which will be
provided to the Trustee and the Rating Agencies to the effect that, in
connection with the firm's examination of such Master Servicer's overall
servicing activities for such fiscal year conducted in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers,
nothing came to their attention that indicated that such Master Servicer was not
in compliance with Sections 3.07, 3.15, 4.01, 4.02 and 4.03 except for (i) such
exceptions as such firm believes to be immaterial and (ii) such other exceptions
as are set forth in such statement. In connection with the engagement to deliver
any such report (or other accountants' report or certificate hereunder) the
Trustee is authorized and directed to enter into such agreed-upon-procedures or
engagement letter as such accountants may request and shall be indemnified by
the Trust hereunder in so doing.
(b) Within 120 days after the last day of the fiscal year of each
Sub-Servicer or a Master Servicer other than CMC, IndyMac or the Trustee,
commencing in 1999, each Master Servicer, at its expense, shall furnish to the
Trustee the most recently available letter or letters from one or more firms of
Independent certified public accountants who are members of the American
Institute of Certified Public Accountants reporting the results of such firm's
examination of the servicing procedures of any Sub-Servicer and any Master
Servicer (other than CMC, IndyMac or the Trustee) in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers, or
such other program as may be certified as being comparable by such accountant.
Section 3.17. REMIC-RELATED COVENANTS. For as long as any of the
Series REMICs shall exist, each Master Servicer and the Trustee shall act in
accordance herewith to assure continuing treatment of each of the Series REMICs
as REMICs, and the Trustee shall comply with any
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directions of such Master Servicer to assure such continuing treatment. In
particular, the Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans or of any Permitted Investment unless such sale is
as a result of a repurchase of the Mortgage Loans pursuant to this Agreement or
the Trustee has received a REMIC Opinion prepared at the expense of the Trust
Fund; and (b) other than with respect to a substitution pursuant to Section
2.05, accept any contribution to any of the Series REMICs after the Startup Day
without receipt of a REMIC Opinion.
Section 3.18. ADDITIONAL INFORMATION. Each Master Servicer agrees to
furnish the Seller, at no expense to such Master Servicer, from time to time
upon reasonable request, such further information, reports and financial
statements as the Seller deems appropriate to prepare and file all necessary
reports with the Securities and Exchange Commission.
Section 3.19. PERIODIC FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION; ADDITIONAL INFORMATION. The Trustee agrees to cooperate with the
Seller in connection with the preparation and filing by the Seller with the
Securities and Exchange Commission of any and all reports, statements and
information respecting the Trust Fund and/or the Certificates required to be
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended. Fees and expenses incurred by the Trustee in
connection with this Section shall not be reimbursable from the Trust Fund.
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ARTICLE IV
Accounts
Section 4.01. PROTECTED ACCOUNTS. (a) Each Master Servicer shall
establish and maintain if it is servicing the related Mortgage Loans and shall
require each Sub-Servicer to establish and maintain a Protected Account
complying with the requirements set forth in this Section 4.01, with records to
be kept with respect thereto on a Mortgage Loan by Mortgage Loan basis, into
which accounts shall be deposited within 48 hours of receipt all collections of
principal and interest on any Mortgage Loan and with respect to any REO Property
received by such Master Servicer, or a Sub-Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, and advances made from
the Sub-Servicer's own funds (less servicing compensation as permitted by
Subsection 3.14(a)) and all other amounts to be deposited in the Protected
Accounts. Each Master Servicer is hereby authorized to make withdrawals from and
deposits to the related Protected Accounts for purposes required or permitted by
this Agreement. All Protected Accounts shall be held in a Designated Depository
Institution and segregated on the books of such institution. The amount at any
time credited to a Protected Account shall be fully insured by the FDIC or, to
the extent that such balance exceeds the lesser of $100,000 or the limits of
such insurance, such excess must be transferred to the appropriate sub-account
of the Certificate Account or invested in Permitted Investments or may be
deposited in a Rating Agency Eligible Account in the name of the Trustee for the
benefit of Certificateholders and not commingled with any other funds. Each
Master Servicer may, and such Master Servicer may permit a Sub-Servicer to,
transfer funds to other accounts (which shall for purposes hereof be deemed to
be Protected Accounts), commingle accounts, or to establish Protected Accounts
not conforming to the foregoing requirements, to the extent that such other
accounts or Protected Accounts are Rating Agency Eligible Accounts.
Amounts on deposit in a Protected Account may be invested in Permitted
Investments in the name of the Trustee for the benefit of Certificateholders
and, except as provided in the preceding paragraph, not commingled with any
other funds, such Permitted Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Certificate Account, and shall be
held until required for such deposit. The income earned from Permitted
Investments made pursuant to this Section 4.01 shall be paid to the relevant
Master Servicer or the related Sub-Servicer as additional compensation for its
obligations under this Agreement, and the risk of loss of moneys required to be
distributed to the Certificateholders resulting from such investments shall be
borne by and be the risk of the relevant Master Servicer or the related
Sub-Servicer. The relevant Master Servicer shall itself, or shall cause the
related Sub-Servicer to, deposit the amount of any such loss in the related
Protected Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Distribution Date
on which the moneys so invested are required to be distributed to the
Certificateholders.
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(b) On or before each Funds Transfer Date, each Master Servicer shall
withdraw or shall cause to be withdrawn from the Protected Accounts and shall
immediately deposit or cause to be deposited in the appropriate sub-account of
the Certificate Account amounts representing the following collections and
payments (other than with respect to principal of or interest on the Mortgage
Loans due on or before the Cut-off Date):
(i) Scheduled Payments on the related Mortgage Loans received or
any related portion thereof advanced by such Master Servicer or
Sub-Servicers which were due on or before the related Due Date, net of
the amount thereof comprising the applicable Master Servicing Fee due
such Master Servicer;
(ii) Full Principal Prepayments and any Liquidation Proceeds
received by such Master Servicer or related Sub-Servicers with respect
to such Mortgage Loans in the related Prepayment Period, with interest
to the date of prepayment or liquidation, net of the amount thereof
comprising the applicable Master Servicing Fee due such Master
Servicer;
(iii) Partial prepayments of principal received by such Master
Servicer or related Sub-Servicers for such Mortgage Loans in the
related Prepayment Period; and
(iv) Any amount to be used as a Certificate Account Advance.
(c) Withdrawals may be made from a Protected Account only to make
remittances as provided in Subsections 4.01(b) or 4.03(c); to reimburse a Master
Servicer or a Sub-Servicer for advances of principal and interest which have
been recovered by subsequent collection from the related Mortgagor; to remove
amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at the
termination of this Agreement in accordance with Section 10.01. As provided in
Section 4.02(b) certain amounts otherwise due to a Master Servicer may be
retained by it and need not be deposited in the Certificate Account.
(d) Each Master Servicer shall promptly deliver to the Trustee, upon
request, a statement from the institution at which each Protected Account is
maintained showing deposits and withdrawals during the prior month.
Section 4.02. CERTIFICATE ACCOUNT. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the Certificateholders,
the Certificate Account as a segregated non-interest bearing trust account or
accounts. The Certificate Account shall have three separate sub-accounts, one
each for all funds with respect to each Mortgage Loan Group. The Trustee will
deposit in the appropriate sub-account as identified by each Master Servicer, of
the Certificate Account as received the following amounts:
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(i) Any amounts withdrawn from a Protected Account pursuant to
Subsection 4.01(b);
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds or Liquidation Proceeds received by
each Master Servicer which were not deposited in a Protected Account;
(iv) The Repurchase Price with respect to any Mortgage Loans
purchased by BSMCC pursuant to Sections 2.02 or 2.03, any amounts
which are to be treated pursuant to Section 2.05 as the payment of
such a Repurchase Price, and all proceeds of any Mortgage Loans or
property acquired with respect thereto repurchased by the Seller or
its designee pursuant to Section 10.01; and
(v) Any other amounts received by each Master Servicer or the
Trustee and required to be deposited in such sub-account of the
Certificate Account pursuant to this Agreement.
(b) All amounts deposited to the Certificate Account shall be held by
the Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement, subject to the right of the Master Servicer to require the Trustee to
make withdrawals therefrom as provided herein. The foregoing requirements for
crediting the Certificate Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.03(a)(i), (ii),
(iii), (iv), (vi), (vii), (ix) and (xi) need not be credited by a Master
Servicer or the related Sub-Servicer to the Certificate Account and may be
retained by such Master Servicer or the related Sub-Servicer as servicing
compensation. In the event that a Master Servicer shall deposit or cause to be
deposited to the Certificate Account any amount not required to be credited
thereto, or shall deposit or cause to be deposited to a sub-account of the
Certificate Account any amount which should appropriately be credited to another
sub-account of the Certificate Account, the Trustee, upon receipt of a written
request therefor signed by a Servicing Officer of such Master Servicer, shall
promptly transfer such amount to such Master Servicer or to the appropriate
other sub-account of the Certificate Account, as applicable, any provision
herein to the contrary notwithstanding.
(c) The Certificate Account shall constitute a trust account of the
Trust Fund segregated on the books of the Trustee and held by the Trustee in
trust in its Corporate Trust Office and the Certificate Account and the funds
deposited therein shall not be subject to, and shall be protected from, all
claims, liens, and encumbrances of any creditors or depositors of the Trustee or
a Master Servicer (whether made directly, or indirectly through a liquidator or
receiver of the Trustee or such Master Servicer). The amount at any time
credited to the Certificate Account shall be (i) fully insured by the FDIC to
the maximum coverage provided thereby, (ii) invested, in the name of the
Trustee, or its nominee, for the benefit of the Certificateholders, in Permitted
Investments described
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in clause (viii) of the definition of Permitted Investments to be held by the
Trustee as the Trustee may select, or (iii) from the maturity of any Permitted
Investment on the Business Day prior to a Distribution Date through the
distribution of such funds on such Distribution Date or at such other time and
in such amount as, in the judgment of the Trustee, cannot reasonably be invested
in accordance with items (i) or (ii) of this sentence, held by the Trustee
uninvested in such Certificate Account. All Permitted Investments shall mature
or be subject to redemption or withdrawal on or before, and shall be held until,
the next succeeding Distribution Date if the obligor for such Permitted
Investment is the Trustee or, if such obligor is any other Person, the Business
Day preceding such Distribution Date. The Trustee shall be entitled to all
investment earnings on amounts in the Certificate Account. With respect to the
Certificate Account and the funds deposited therein, the Trustee shall take such
action as may be necessary to ensure that the Certificateholders shall be
entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e), if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations.
Section 4.03. PERMITTED WITHDRAWALS AND TRANSFERS FROM THE CERTIFICATE
ACCOUNT. (a) The Trustee will, from time to time on demand of a Master Servicer,
make or cause to be made such withdrawals or transfers from the appropriate
sub-account of the Certificate Account as such Master Servicer has designated
for such transfer or withdrawal as specified in a certificate signed by a
Servicing Officer (upon which the Trustee may conclusively rely) for the
following purposes (limited in the case of amounts due the related Master
Servicer to those not withdrawn from the Protected Account in accordance with
the terms of this Agreement):
(i) to reimburse a Master Servicer or any Sub-Servicer for any
Monthly Advance of its own funds or any advance of such Sub-Servicer's
own funds, the right of a Master Servicer or a Sub-Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular related Mortgage Loan (including, for this
purpose, the Repurchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late payments or recoveries of
the principal of or interest on such Mortgage Loan respecting which
such Monthly Advance or advance was made;
(ii) to reimburse a Master Servicer or any Sub-Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
related Mortgage Loan for amounts expended by such Master Servicer or
such Sub-Servicer pursuant to Section 3.12 in good faith in connection
with the restoration of the related Mortgaged Property which was
damaged by an Uninsured Cause or in connection with the liquidation of
such Mortgage Loan;
(iii) to reimburse a Master Servicer or any Sub-Servicer from
Insurance Proceeds relating to a particular related Mortgage Loan for
Insured Expenses incurred with respect to such Mortgage Loan and to
reimburse such Master Servicer or such Sub-Servicer from Liquidation
Proceeds from a particular related Mortgage Loan for Liquidation
Expenses incurred with respect to such Mortgage Loan; PROVIDED THAT a
Master Servicer shall not be entitled to reimbursement for Liquidation
Expenses with respect to a Mortgage Loan to the
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extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (xi) of this
Subsection 4.03(a) to such Master Servicer; and (ii) such Liquidation
Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to pay a Master Servicer or any Sub-Servicer (payment to any
Sub-Servicer to be subject to prior payment to such Master Servicer of
an amount equal to the applicable Master Servicing Fee), as
appropriate, from Liquidation Proceeds or Insurance Proceeds received
in connection with the liquidation of any Mortgage Loan, the amount
which it or such Sub-Servicer would have been entitled to receive
under subclause (ix) of this Subsection 4.03(a) as servicing
compensation on account of each defaulted scheduled payment on such
Mortgage Loan if paid in a timely manner by the related Mortgagor, but
only to the extent that the aggregate of Liquidation Proceeds and
Insurance Proceeds with respect to such Mortgage Loan, after any
reimbursement to such Master Servicer or any Sub-Servicer, pursuant to
subclauses (i), (ii), (iii) and (vi) of this Subsection 4.03(a),
exceeds the Outstanding Principal Balance of such Mortgage Loan plus
accrued and unpaid interest thereon at the related Mortgage Interest
Rate less the applicable Master Servicing Fee Rate to but not
including the date of payment;
(v) to pay a Master Servicer or any Sub-Servicer (payment to any
Sub-Servicer to be subject to prior payment to such Master Servicer of
the portion of the applicable Master Servicing Fee which such Master
Servicer is entitled to retain as evidenced in writing to the Trustee
by such Master Servicer), as appropriate, from the Repurchase Price
for any related Mortgage Loan, the amount which it or such
Sub-Servicer would have been entitled to receive under subclause (ix)
of this Subsection 4.03(a) as servicing compensation, but only to the
extent that the Repurchase Price with respect to such Mortgage Loan
after any reimbursement to the related Master Servicer and
Sub-Servicer pursuant to subclauses (i) and (vi) of this Subsection
4.03(a) exceeds the Outstanding Principal Balance of such Mortgage
Loan plus accrued and unpaid interest thereon at the related Mortgage
Interest Rate less the applicable Master Servicing Fee Rate through
the last day of the month of repurchase;
(vi) to reimburse a Master Servicer or any Sub-Servicer for
advances of funds pursuant to Sections 3.07, 3.09 and 3.10, the right
to reimbursement pursuant to this subclause being limited to amounts
received on the related Mortgage Loan (including, for this purpose,
the Repurchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of the payments for which
such advances were made;
(vii) to pay a Master Servicer or any Sub-Servicer, as the case
may be, with respect to each related Mortgage Loan that has been
purchased pursuant to Section 2.02, 2.04, 2.05 or 10.01, all amounts
received thereon, representing recoveries of principal that reduce the
Outstanding Principal Balance of such Mortgage Loan below the
Outstanding Principal Balance used in calculating the Repurchase Price
or representing interest included in the
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calculation of the Repurchase Price or accrued after the end of the
month during which such repurchase occurs;
(viii) to reimburse a Master Servicer or any Sub-Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated
with respect to the related Mortgage Loan if the Monthly Advance or
advance has not been reimbursed pursuant to clauses (i) and (vi), such
reimbursement to come from the sub-account relating to the Mortgage
Loan Group of which the related Mortgage Loan is a part;
(ix) to pay a Master Servicer and any Sub-Servicer servicing
compensation as set forth in Section 3.14;
(x) to reimburse a Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Subsection
7.04(d), which, if not specifically allocable to a Mortgage Loan
Group, shall be allocated among the sub-accounts, PRO RATA, based on
the Scheduled Principal Balances of the Group 1 Mortgage Loans, the
Group 2 Mortgage Loans and the Group 3 Mortgage Loans, respectively;
(xi) to pay to a Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds;
(xii) to clear and terminate the Certificate Account pursuant to
Section 10.01; and
(xiii) to remove amounts deposited in error.
Each Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Certificate Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by such Master
Servicer without being deposited in the Certificate Account under Section
4.02(b).
(b) On each Distribution Date, the Trustee shall make the following
payments in the priority set forth from the funds in the Certificate Account:
(i) First, the Trustee's Fees shall be paid to the Trustee; and
(ii) Second, the amount distributable to the Holders of the
Certificates shall be payable in accordance with Section 6.01.
(c) Notwithstanding the provisions of this Section 4.03, each Master
Servicer may, but is not required to, allow the Sub-Servicers to deduct from
amounts received by them or from the related Protected Account, prior to deposit
in the Certificate Account, any portion to which such
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Sub-Servicers are entitled as servicing compensation (including income on
Permitted Investments) or reimbursement of any reimbursable advances made by
such Sub-Servicers.
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ARTICLE V
Certificates
Section 5.01. CERTIFICATES. (a) The Depository, the Seller and the
Trustee have entered into a Depository Agreement dated as of April 29, 1999 (the
"Depository Agreement"). Except for the Residual Certificates and the Individual
Certificates and as provided in Subsection 5.01(b), the Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of such Certificates may not be transferred by the
Trustee except to a successor to the Depository; (ii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iii) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (iv) the Trustee shall deal with the Depository as
representative of such Certificate Owners of the respective Class of
Certificates for purposes of exercising the rights of Certificateholders under
this Agreement, and requests and directions for and votes of such representative
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (v) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants.
The Residual Certificates and the Private Certificates are initially
Physical Certificates. If at any time the Holders of all of the Certificates of
one or more such Classes request that the Trustee cause such Class to become
Global Certificates, the Trustee and the Seller will take such action as may be
reasonably required to cause the Depository to accept such Class or Classes for
trading if it may legally be so traded.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and any Global Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) If (i)(A) the Seller advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Trustee or the Seller is unable to
locate a qualified successor within 30 days or (ii) the Seller at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall request that the Depository notify all
Certificate Owners of the occurrence of any such event and of the availability
of definitive, fully registered Certificates to Certificate Owners requesting
the same. Upon surrender to the Trustee of the Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall issue the definitive Certificates. Neither the Seller, the
Master Servicers 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.
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(c) (i) REMIC I will be evidenced by (x) the REMIC I Regular
Interests, described below, which will be uncertificated and non-transferable
and are hereby designated as the "regular interests" in REMIC I and (y) the
Class R-1 Certificate, which is hereby designated as the single "residual
interest" in REMIC I. Except as discussed below, principal and interest shall be
payable to, and shortfalls, losses and prepayments are allocable to, the REMIC I
Regular Interests in the same order and priority as payments are to be made on,
and shortfalls, losses and prepayments are allocable to, the Corresponding
Classes of Certificates. The REMIC I Regular Interests and the Class R-1
Certificate will have the following designations and pass-through rates, and
distributions of principal and interest thereon shall be allocated to the
Corresponding Class of Certificates in the following manner:
REMIC I Corresponding Classes or Pass-Through
Certificates Components of Certificates Initial Balance Rate
- ------------ -------------------------- --------------- ----
Q 1-A-1 (1) $6,199,000.00 6.750%
R 1-A-2 (1) $11,539,000.00 6.750%
S 1-A-3 and 1-A-4 (1) $84,519,000.00 6.750%
T Class 1-A-5-II Component $32,735,504.00 6.750%
U Class 1-A-5-III Component $1,161,397.00 0.000%
V 1-A-6 and 1-A-7 $2,827,993.00 6.750%
W 1-A-8 $1,900,000.00 6.750%
X Class 1-A-5-IV Component $ 0.00 (2)
Y Group 1 Subordinate Certificate $15,323,968.00 6.750%
Z R-IV $50.00 6.750%
R-I - $50.00 6.750%
_____________
(1) Of the interest accrued on the Class Q REMIC I Certificate, the Class R
REMIC I Certificate and the Class S REMIC I Certificate, an amount equal to
the Class 1-A-5-I Component Strip will be paid to the Class 1-A-5-I
Component.
(2) The Class X REMIC I Certificates will bear interest in an amount equal to
Accrued Certificate Interest on the Class 1-A-5-IV Component.
(ii) REMIC II will be evidenced by (x) the REMIC II Regular Interests,
described below, which will be uncertificated and non-transferable and are
hereby designated as the "regular interests" in REMIC II and (y) the Class R-2
Certificate, which is hereby designated as the single "residual interest" in
REMIC II. Except as discussed below, principal and interest shall be payable to,
and shortfalls, losses and prepayments are allocable to, the REMIC II Regular
Interests in the same order and priority as payments are to be made on, and
shortfalls, losses and prepayments are allocable to, the Corresponding Classes
of Certificates. For the REMIC II Regular Interests II-2-A and II-B, the
Corresponding Certificates are, respectively, the Class 2-A Certificates and the
Group 2 Subordinate Certificates. The REMIC II Regular Interests and the Class
R-2 Certificate will have the following designations and pass-through rates, and
distributions of principal and interest thereon shall be allocated to the
Corresponding Class of Certificates in the following manner:
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REMIC II Certificates Initial Balance Pass-Through Rate
- --------------------- --------------- -----------------
II-2-A $ 48,057,400.00 (1)
II-B $ 1,794,717.00(2) (1)
R-2 $ 50.00 (1)
____________________
* means Notional Amount
(1) The REMIC II Regular Interests designated as II-2-A and II-B and the Class
R-2 Certificates will bear interest at a rate equal to the weighted average
of the Net Rates of the Group 2 Mortgage Loans.
(2) Of the interest accrued on the REMIC II Regular Interest II-B, an amount
equal to the Accrued Certificate Interest on the Class B-6-X Certificate
will be paid to the Class B-6-X Certificate.
(ii) REMIC III will be evidenced by (x) the REMIC III Regular Interests,
described below, which will be uncertificated and non-transferable and are
hereby designated as the "regular interests" in REMIC III and (y) the Class R-3
Certificate, which is hereby designated as the single "residual interest" in
REMIC III. Except as discussed below, principal and interest shall be payable
to, and shortfalls, losses and prepayments are allocable to, the REMIC III
Regular Interests in the same order and priority as payments are to be made on,
and shortfalls, losses and prepayments are allocable to, the Corresponding
Classes of Certificates. For the REMIC III Regular Interests, the Corresponding
Certificates are: for the III-3-A, the 3-A, for the III-3-X, the 3-X and for the
III-3-B, the Group 3 Subordinate Certificates. The REMIC III Regular Interests
and the Class R-3 Certificate will have the following designations and
pass-through rates, and distributions of principal and interest thereon shall be
allocated to the Corresponding Class of Certificates in the following manner:
REMIC III Certificates Initial Balance Pass-Through Rate
- ---------------------- --------------- -----------------
III-3-A $87,544,000.00 6.750%
III-3-X $ * (1)
III-3-B $10,820,197.54 6.750%
R-3 $ 50.00 6.750%
______________________
* means Notional Amount
(1) The REMIC III Regular Interest designated as III-3-X will bear interest in
an amount equal to Accrued Certificate Interest on the Class 3-X
Certificates.
(iii) REMIC IV will be evidenced by the Certificates other than the Class
R-1, Class R-2 and Class R-3 Certificates.
(d) The Classes of the Certificates (other than the Class R-1, Class R-2
and Class R-3 Certificates) and the Components of the Component Certificates
shall have the following designations, initial principal amounts and
Pass-Through Rates:
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<TABLE>
<CAPTION>
Designation Initial Principal or Notional Amount Pass-Through Rate
----------- ------------------------------------ -----------------
<S> <C> <C>
Class 1-A-1 Certificates $ 6,199,000.00 6.050%
Class 1-A-2 Certificates $ 11,539,000.00 6.100%
Class 1-A-3 Certificates $ 28,519,000.00 6.300%
Class 1-A-4 Certificates $ 56,000,000.00 6.300%
Class 1-A-5-I Component $ * (1)
Class 1-A-5-II Component $ 32,735,504.00 6.750%
Class 1-A-5-III Component $ 1,161,397.00 (5)
Class 1-A-5-IV Component $ * (2)
Class 1-A-6 Certificates $ 3,579,403.00 (2)
Class 1-A-7 Certificates $ 927,993.00 (2)
Class 1-A-8 Certificates $ 1,900,000.00 6.750%
Class 2-A Certificates $ 48,057,400.00 (3)
Class 3-A Certificates $ 87,544,000.00 6.750%
Class 3-X Certificates $ * (6)
Class B-1 Certificates $ 3,163,800.00 (4)
Class B-2 Certificates $ 1,680,800.00 (4)
Class B-3 Certificates $ 791,000.00 (4)
Class B-4 Certificates $ 692,100.00 (4)
Class B-5 Certificates $ 296,500.00 (4)
Class B-6-X Certificates $ * (4)
Class B-6-P Certificates $ 494,485.75 0.000%
Class 3-B-1 Certificates $ 5,410,100.00 6.750%
Class 3-B-2 Certificates $ 2,213,200.00 6.750%
Class 3-B-3 Certificates $ 1,327,900.00 6.750%
Class 3-B-4 Certificates $ 885,300.00 6.750%
Class 3-B-5 Certificates $ 393,500.00 6.750%
Class 3-B-6 Certificates $ 590,197.54 6.750%
Class R-4 Certificates $ 50.00 6.750%
_________________
* Notional Amount.
</TABLE>
(1) See the definition of Accrued Certificate Interest.
(2) See the definition of Pass-Through Rate.
(3) With respect to the Class 2-A Certificates, the Pass-Through Rate on the
REMIC II Regular Interest designated as II-2-A.
(4) With respect to the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6-X Certificates, the Pass-Through Rate is equal to the
weighted average of the Pass-Through Rates on the Corresponding Classes in
REMIC I and REMIC II, weighted on the basis of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Mortgage Loan Group,
minus the amounts paid to the related Senior Certificates in reduction of
the related Current Principal Amounts thereof.
(5) The Class 1-A-5-III Component is a principal only Component and will not
bear interest. The Current Principal Amount of the Class 1-A-5-III
Component initially will be the amount shown above and is composed of a
strip of principal from the Discount Group 1 Mortgage Loans.
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(6) The Class 3-X Certificates will have a Notional Amount equal to the
aggregate Scheduled Principal Balances of the Group 3 Mortgage Loans and
will bear interest on their Notional Amount at a variable Pass-Through Rate
equal to the weighted average of the excess of (a) the Net Rate on each
Group 3 Mortgage Loan over (b) 6.750% per annum. For the Class 3-X
Certificates, the Pass-Through Rate for the initial Interest Accrual Period
is 1.0681% per annum.
(e) With respect to each Distribution Date, each Class or Component of
Certificates (other than the PO Component of the Component Certificates and the
Class B-6-P Certificates) shall accrue interest during the related Interest
Accrual Period. With respect to each Distribution Date and each such Class or
Component of Certificates, interest shall be calculated, on the basis of a
360-day year comprised of twelve 30-day months, based upon the respective
Pass-Through Rate set forth, or determined as provided, above and the Current
Principal Amount or Notional Amount of such Class or Component applicable to
such Distribution Date. Interest will accrue on the Accrual Certificates but
will not be paid as interest to such Class or Component so long as it is
outstanding prior to the related Cross-Over Date. The Accrual Distribution
Amount will be distributed as principal as provided in Section 6.01(a)(i)(A).
(f) The Certificates shall be substantially in the forms set forth in
Exhibit A-1, A-2, A-3 and A-4. On original issuance, the Trustee shall sign,
countersign and shall deliver them at the direction of the Seller. Pending the
preparation of definitive Certificates of any Class, the Trustee may sign and
countersign temporary Certificates that are printed, lithographed or
typewritten, in authorized denominations for Certificates of such Class,
substantially of the tenor of the definitive Certificates in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers or authorized signatories executing such
Certificates may determine, as evidenced by their execution of such
Certificates. If temporary Certificates are issued, the Seller will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office of the Trustee, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall sign and countersign and deliver in exchange therefor a like
aggregate principal amount, in authorized denominations for such Class, of
definitive Certificates of the same Class. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits as
definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a single
Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of (i) in the
case of the Senior Certificates which are Book-Entry Certificates, $1,000 and in
each case increments of $1.00 in excess thereof, and (ii) in the case of the
Offered Subordinate Certificates, $25,000 and increments of $1.00 in excess
thereof, except that one Certificate of each such Class may be issued in a
different amount so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Current Principal Amount or Notional
Amount of such Class on the Closing Date. On the Closing Date, the Trustee shall
execute and countersign
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Physical Certificates all in an aggregate principal amount that shall equal the
Current Principal Amount of such Class on the Closing Date. The Class 3-X will
be issued in certificated fully-registered form in minimum denominations of
$1,000 and in each case increments of $1.00 in excess thereof, except that one
Certificate of each such Class may be issued in a different amount so that the
sum of the denominations of each such Class shall equal the Current Principal
Amount or Notional Amount of such Class on the Closing Date. The Private
Certificates will be issued in certificated fully-registered form in minimum
denominations of $50,000 and increments of $1.00 in excess thereof, except that
one Certificate of each such Class may be issued in a different amount so that
the sum of the denominations of all outstanding Certificates of such Class shall
equal the Current Principal Amount of such Class on the Closing Date. Each Class
of Residual Certificates shall be issued in certificated fully-registered form
in the denomination of $50 each. Each Class of Global Certificates, if any,
shall be issued in fully registered form in minimum dollar denominations of
$50,000 and integral multiples of $1.00 in excess thereof, except that one
Certificate of each Class may be in a different denomination so that the sum of
the denominations of all outstanding Certificates of such Class shall equal the
Current Principal Amount of such Class on the Closing Date. On the Closing Date,
the Trustee shall execute and countersign (i) in the case of each Class of
Offered Certificates, the Certificate in the entire Current Principal Amount or
Notional Amount of the respective Class and (ii) in the case of each Class of
Private Certificates, all in an aggregate principal amount that shall equal the
Current Principal Amount of each such respective Class on the Closing Date. The
Certificates referred to in clause (i) and if at any time there are to be Global
Certificates, the Global Certificates shall be delivered by the Seller to the
Depository or pursuant to the Depository's instructions, shall be delivered by
the Seller on behalf of the Depository to and deposited with the DTC Custodian.
The Trustee shall sign the Certificates by facsimile or manual signature and
countersign them by manual signature on behalf of the Trustee by one or more
authorized signatories, each of whom shall be a Responsible Officer of the
Trustee or its agent. A Certificate bearing the manual and facsimile signatures
of individuals who were the authorized signatories of the Trustee or its agent
at the time of issuance shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to hold such positions prior to the
delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate the
manually executed countersignature of the Trustee or its agent, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates issued on the Closing Date shall be dated the Closing Date. All
Certificates issued thereafter shall be dated the date of their
countersignature.
(i) The Closing Date is hereby designated as the "startup" day of each
Series REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each Series REMIC shall have a tax
year that is a calendar year and shall report income on an accrual basis.
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(k) The Trustee on behalf of the Trust shall cause each Series REMIC to
elect to be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of any
Trust established hereby shall be resolved in a manner that preserves the
validity of such elections.
(l) The Assumed Final Distribution Dates for distributions on the Group 1,
Group 2 and Group 3 Certificates are May 25, 2029, April 25, 2029, and May 25,
2029, respectively; the latest possible maturity date of the REMIC I, REMIC II
and REMIC III Regular Interests is May 25, 2029, April 25, 2029, and May 25,
2029, respectively.
Section 5.02. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES. (a)
The Trustee shall maintain at its Corporate Trust Office a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided.
(b) Subject to Subsection 5.01(a) and, in the case of any Global
Certificate or Physical Certificate upon the satisfaction of the conditions set
forth below, upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose, the Trustee
shall sign, countersign and shall deliver, in the name of the designated
transferee or transferees, a new Certificate of a like Class and aggregate
Fractional Undivided Interest, but bearing a different number.
(c) By acceptance of an Individual Certificate, whether upon original
issuance or subsequent transfer, each holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h), the following
restrictions shall apply with respect to the transfer and registration of
transfer of an Individual Certificate to a transferee that takes delivery in the
form of an Individual Certificate:
(i) The Trustee shall register the transfer of an Individual
Certificate if the requested transfer is being made to a transferee who has
provided the Trustee with a Rule 144A Certificate or comparable evidence as
to its QIB status.
(ii) The Trustee shall register the transfer of any Individual
Certificate if (x) the transferor has advised the Trustee in writing that
the Certificate is being transferred to an Institutional Accredited
Investor; and (y) prior to the transfer the transferee furnishes to the
Trustee an Investment Letter (and the Trustee shall be fully protected in
so doing), provided that, if based upon an Opinion of Counsel to the effect
that the delivery of (x) and (y) above are not sufficient to confirm that
the proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act and other applicable laws, the Trustee shall as a condition of the
registration of any such transfer require the transferor to furnish such
other certifications, legal opinions
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or other information prior to registering the transfer of an Individual
Certificate as shall be set forth in such Opinion of Counsel.
(d) Subject to Subsection 5.02(h), so long as a Global Certificate of such
Class is outstanding and is held by or on behalf of the Depository, transfers of
beneficial interests in such Global Certificate, or transfers by holders of
Individual Certificates of such Class to transferees that take delivery in the
form of beneficial interests in the Global Certificate, may be made only in
accordance with this Subsection 5.02(d) and in accordance with the rules of the
Depository:
(i) In the case of a beneficial interest in the Global Certificate
being transferred to an Institutional Accredited Investor, such transferee
shall be required to take delivery in the form of an Individual Certificate
or Certificates and the Trustee shall register such transfer only upon
compliance with the provisions of Subsection 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global
Certificates being transferred to a transferee that takes delivery in the
form of an Individual Certificate or Certificates of such Class, except as
set forth in clause (i) above, the Trustee shall register such transfer
only upon compliance with the provisions of Subsection 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class being
transferred to a transferee that takes delivery in the form of a beneficial
interest in a Global Certificate of such Class, the Trustee shall register
such transfer if the transferee has provided the Trustee with a Rule 144A
Certificate or comparable evidence as to its QIB status.
(iv) No restrictions shall apply with respect to the transfer or
registration of transfer of a beneficial interest in the Global Certificate
of a Class to a transferee that takes delivery in the form of a beneficial
interest in the Global Certificate of such Class; provided that each such
transferee shall be deemed to have made such representations and warranties
contained in the Rule 144A Certificate as are sufficient to establish that
it is a QIB.
(e) Subject to Subsection 5.02(h), an exchange of a beneficial interest in
a Global Certificate of a Class for an Individual Certificate or Certificates of
such Class, an exchange of an Individual Certificate or Certificates of a Class
for a beneficial interest in the Global Certificate of such Class and an
exchange of an Individual Certificate or Certificates of a Class for another
Individual Certificate or Certificates of such Class (in each case, whether or
not such exchange is made in anticipation of subsequent transfer, and, in the
case of the Global Certificate of such Class, so long as such Certificate is
outstanding and is held by or on behalf of the Depository) may be made only in
accordance with this Subsection 5.02(e) and in accordance with the rules of the
Depository:
(i) A holder of a beneficial interest in a Global Certificate of a
Class may at any time exchange such beneficial interest for an Individual
Certificate or Certificates of such Class.
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(ii) A holder of an Individual Certificate or Certificates of a Class
may exchange such Certificate or Certificates for a beneficial interest in
the Global Certificate of such Class if such holder furnishes to the
Trustee a Rule 144A Certificate or comparable evidence as to its QIB
status.
(iii) A holder of an Individual Certificate of a Class may exchange
such Certificate for an equal aggregate principal amount of Individual
Certificates of such Class in different authorized denominations without
any certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global Certificate of such
Class as provided herein, the Trustee shall cancel such Individual Certificate
and shall (or shall request the Depository to) endorse on the schedule affixed
to the applicable Global Certificate (or on a continuation of such schedule
affixed to the Global Certificate and made a part thereof) or otherwise make in
its books and records an appropriate notation evidencing the date of such
exchange or transfer and an increase in the certificate balance of the Global
Certificate equal to the certificate balance of such Individual Certificate
exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial interest
in a Global Certificate of a Class for an Individual Certificate of
such Class as provided herein, the Trustee shall (or shall request the
Depository to) endorse on the schedule affixed to such Global
Certificate (or on a continuation of such schedule affixed to such
Global Certificate and made a part thereof) or otherwise make in its
books and records an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the certificate balance of such
Global Certificate equal to the certificate balance of such Individual
Certificate issued in exchange therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual Certificate
issued in exchange for or upon transfer of another Individual Certificate or of
a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the holder of any Individual Certificate may transfer or exchange
the same in whole or in part (in an initial certificate balance equal to the
minimum authorized denomination set forth in Section 5.01(g) above or any
integral multiple of $1.00 in excess thereof) by surrendering such Certificate
at the Corporate Trust Office, or at the office of any transfer agent, together
with an executed instrument of assignment and transfer satisfactory in form and
substance to the Trustee in the case of transfer and a written request for
exchange in the case of exchange. The holder of a beneficial interest in a
Global Certificate may, subject to the rules and procedures of the Depository,
cause the Depository (or its nominee) to notify the Trustee in writing of a
request for transfer or exchange of such beneficial interest for an Individual
Certificate or Certificates. Following a proper request for transfer or
exchange, the Trustee shall, within five Business Days of such request made at
such
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Corporate Trust Office, sign, countersign and deliver at such Corporate Trust
Office, to the transferee (in the case of transfer) or holder (in the case of
exchange) or send by first class mail at the risk of the transferee (in the case
of transfer) or holder (in the case of exchange) to such address as the
transferee or holder, as applicable, may request, an Individual Certificate or
Certificates, as the case may require, for a like aggregate Fractional Undivided
Interest and in such authorized denomination or denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office by the
registered holder in person, or by a duly authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at any such office or agency; PROVIDED, HOWEVER, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least equal to the
minimum authorized denomination or (ii) is acceptable to the Seller as indicated
to the Trustee in writing. Whenever any Certificates are so surrendered for
exchange, the Trustee shall sign and countersign and the Trustee shall deliver
the Certificates which the Certificateholder making the exchange is entitled to
receive.
(j) If the Trustee so requires, every Certificate presented or surrendered
for transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer, with a signature guarantee, in form satisfactory
to the Trustee, duly executed by the holder thereof or his or her attorney duly
authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(l) The Trustee shall cancel all Certificates surrendered for transfer or
exchange but shall retain such Certificates in accordance with its standard
retention policy or for such further time as is required by the record retention
requirements of the Securities Exchange Act of 1934, as amended, and thereafter
may destroy such Certificates.
(m) The following legend shall be placed on each Class of Subordinate
Certificates, whether upon original issuance or upon issuance of any other
Certificate of any such Class in exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY
BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT
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AND/OR OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT
RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED
UNDER AN INDIVIDUAL OR CLASS PROHIBITED TRANSACTION
EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED
TRANSACTION EXEMPTION ("PTE") 84-14, PTE 91-38, PTE 90-1,
PTE 95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE MASTER
SERVICERS OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED
BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO
SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE
CERTIFICATE.
Section 5.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. (a) If (i)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as it may require to save it harmless, and (iii) the Trustee has not
received notice that such Certificate has been acquired by a third Person, the
Trustee shall sign, countersign and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Fractional Undivided Interest but in each case bearing a different
number. The mutilated, destroyed, lost or stolen Certificate shall thereupon be
canceled of record by the Trustee and shall be of no further effect and evidence
no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any duplicate Certificate issued pursuant to this Section 5.03 shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04. PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Seller, the Master Servicers, the
Trustee and any agent of the Seller, the Master Servicers or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
6.01 and for all other purposes whatsoever. Neither the Seller, the Master
Servicers, the Trustee nor any agent of the Seller, the Master Servicers or the
Trustee shall be affected by notice to the contrary. No Certificate shall be
deemed duly presented for a transfer effective on any Record Date unless the
Certificate to be transferred is presented no later than the close of business
on the third Business Day preceding such Record Date.
Section 5.05. TRANSFER RESTRICTIONS ON RESIDUAL CERTIFICATES. (a) Residual
Certificates, or interests therein, may not be transferred without the prior
express written consent of the Tax Matters Person and the Seller. As a
prerequisite to such consent, the proposed transferee must provide the Tax
Matters Person, the Seller and the Trustee with an affidavit that the proposed
transferee is not
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a Disqualified Organization (as defined in Subsection 5.05(b)) (and, unless the
Tax Matters Person and the Seller consent to the transfer to a person who is not
a U.S. Person, an affidavit that it is a U.S. Person) as provided in Subsection
5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of a Residual Certificate, the proposed
transferee (including the initial purchasers thereof) delivers to the Tax
Matters Person, the Trustee and the Seller an affidavit in the form attached
hereto as Exhibit E stating, among other things, that as of the date of such
transfer (i) such transferee is a Permitted Transferee and that (ii) such
transferee is not acquiring such Residual Certificate for the account of any
person who is not a Permitted Transferee. The Tax Matters Person shall not
consent to a transfer of a Residual Certificate if it has actual knowledge that
any statement made in the affidavit issued pursuant to the preceding sentence is
not true. Notwithstanding any transfer, sale or other disposition of a Residual
Certificate to any Person who is not a Permitted Transferee, such transfer, sale
or other disposition shall be deemed to be of no legal force or effect
whatsoever and such Person shall not be deemed to be a Holder of a Residual
Certificate for any purpose hereunder, including, but not limited to, the
receipt of distributions thereon. If any purported transfer shall be in
violation of the provisions of this Subsection 5.05(b), then the prior Holder
thereof shall, upon discovery that the transfer of such Residual Certificate was
not in fact permitted by this Subsection 5.05(b), be restored to all rights as a
Holder thereof retroactive to the date of the purported transfer. None of the
Trustee, the Tax Matters Person or the Seller shall be under any liability to
any Person for any registration or transfer of a Residual Certificate that is
not permitted by this Subsection 5.05(b) or for making payments due on such
Residual Certificate to the purported Holder thereof or taking any other action
with respect to such purported Holder under the provisions of this Agreement so
long as the written affidavit referred to above was received with respect to
such transfer, and the Tax Matters Person, the Trustee and the Seller, as
applicable, had no knowledge that it was untrue. The prior Holder shall be
entitled to recover from any purported Holder of a Residual Certificate that was
in fact not a permitted transferee under this Subsection 5.05(b) at the time it
became a Holder all payments made on such Residual Certificate. Each Holder of a
Residual Certificate, by acceptance thereof, shall be deemed for all purposes to
have consented to the provisions of this Subsection 5.05(b) and to any amendment
of this Agreement deemed necessary (whether as a result of new legislation or
otherwise) by counsel of the Tax Matters Person or the Seller to ensure that the
Residual Certificates are not transferred to any Person who is not a Permitted
Transferee and that any transfer of such Residual Certificates will not cause
the imposition of a tax upon the Trust or cause any Series REMIC to fail to
qualify as a REMIC.
(c) Unless the Tax Matters Person shall have consented in writing (which
consent may be withheld in the Tax Matters Person's sole discretion), the
Residual Certificates (including a beneficial interest therein) may not be
purchased by or transferred to any person who is not a United States Person.
(d) By accepting a Residual Certificate, the purchaser thereof agrees to be
a Tax Matters Person, and appoints the Trustee to act as its agent with respect
to all matters concerning the tax
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obligations of the Trust, other than those matters regarding transfer
restrictions contained in this Section 5.05.
Section 5.06. RESTRICTIONS ON TRANSFERABILITY OF PRIVATE CERTIFICATES. (a)
No offer, sale, transfer or other disposition (including pledge) of a Private
Certificate shall be made by any Holder thereof unless registered under the
Securities Act, or an exemption from the registration requirements of the
Securities Act and any applicable state securities or "Blue Sky" laws is
available and the prospective transferee (other than the Seller) of such
Certificate signs and delivers to the Trustee an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit F-1 hereto, or a Rule 144A Certificate, if the transferee is a QIB, in
the form set forth as Exhibit F-2 hereto. Notwithstanding the provisions of the
immediately preceding sentence, no restrictions shall apply with respect to the
transfer or registration of transfer of a beneficial interest in a Physical
Certificate that is a Global Certificate of a Class to a transferee that takes
delivery in the form of a beneficial interest in the Global Certificate of such
Class provided that each such transferee shall be deemed to have made such
representations and warranties contained in the Rule 144A Certificate as are
sufficient to establish that it is a QIB. In the case of a proposed transfer of
a Private Certificate to a transferee other than a QIB, the Trustee may require
an Opinion of Counsel that such transaction is exempt from the registration
requirements of the Securities Act. The cost of such opinion shall not be an
expense of the Trustee or the Trust Fund.
(b) Each Class of Private Certificates shall bear a Securities Legend.
Section 5.07. ERISA RESTRICTIONS. (a) Subject to the provisions of
subsection (b), no Class of Subordinate or Residual Certificates may be acquired
directly or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA and/or Section 4975
of the Code, unless the proposed transferee provides either (i) the Trustee and
the Master Servicers with an Opinion of Counsel satisfactory to the Trustee and
the Master Servicers, which opinion will be at the expense of the Trustee or the
Master Servicers, that the purchase of such Certificates by or on behalf of such
Plan is permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Trustee or the Master Servicers to any obligation in
addition to those undertaken in the Pooling and Servicing Agreeement or (ii) a
representation or certification to the Trustee (upon which the Trustee is
authorized to rely) to the effect that the proposed transfer and/or holding of
such a Certificate and the servicing, management and operation of the Trust: (I)
will not result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code which is not covered under an individual or class
prohibited transaction exemption including but not limited to Department of
Labor Prohibited Transaction Exemption ("PTE") 84-14 (Class Exemption for Plan
Asset Transactions Determined by Independent Qualified Professional Asset
Managers); PTE 91-38 (Class Exemption for Certain Transactions Involving Bank
Collective Investment Funds); PTE 90-1 (Class Exemption for Certain Transactions
Involving Insurance Company Pooled Separate Accounts), PTE 95-60 (Class
Exemption for Certain Transactions Involving Insurance Company General
Accounts), and PTCE 96-23 (Class Exemption for Plan Asset Transactions
Determined by
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In-House Asset Managers and (II) will not give rise to any additional fiduciary
duties under ERISA on the part of either Master Servicer or the Trustee.
(b) Any Person acquiring an interest in a Book-Entry Certificate or a
Global Certificate which is a Subordinate Certificate, by acquisition of such
Certificate, shall be deemed to have represented to the Trustee that it is
either: (i) not acquiring an interest in such Certificate directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement
which is subject to Title I of ERISA and/or Section 4975 of the Code, or (ii)
such Person provides a representation or certification to the Trustee to the
effect that the transfer and/or holding of an interest in such Certificate and
the servicing, management and/or operation of the Trust and its assets: (I) will
not result in any prohibited transaction which is not covered under an
individual or class prohibited transaction exemption, including, but not limited
to, PTE 84-14, PTE 91-38, PTE 90-1, PTE 95-60 or PTE 96-23 and (II) will not
give rise to any additional fiduciary duties on the part of either Master
Servicer or the Trustee.
(c) Any attempted or purported transfer of any Certificate in violation of
the provisions of Subsections (a) or (b) above shall be void AB INITIO and such
Certificate shall be considered to have been held continuously by the prior
permitted Certificateholder. Any transferor of any Certificate in violation of
such provisions, shall indemnify and hold harmless the Trustee from and against
any and all liabilities, claims, costs or expenses incurred by the Trustee as a
result of such attempted or purported transfer.
Section 5.08. RULE 144A INFORMATION. For so long as any Private
Certificates are outstanding and are "restricted securities" within the meaning
of Rule 144(a)(3) of the Securities Act, (1) the Seller will provide or cause to
be provided to any holder of such Certificates and any prospective purchaser
thereof designated by such a holder, upon the request of such holder or
prospective purchaser, the information required to be provided to such holder or
prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (2) the
Seller shall update such information from time to time in order to prevent such
information from becoming false and misleading and will take such other actions
as are necessary to ensure that the safe harbor exemption from the registration
requirements of the Securities Act under Rule 144A is and will be available for
resales of such Certificates conducted in accordance with Rule 144A. The Master
Servicers shall cooperate with the Seller and furnish the Seller such
information in such Master Servicer's possession as the Seller may reasonably
request.
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ARTICLE VI
Payments to Certificateholders
Section 6.01. DISTRIBUTIONS ON THE CERTIFICATES. (a) Interest and principal
on the Certificates will be distributed monthly on each Distribution Date,
commencing in May 1999, in an aggregate amount equal to the Available Funds for
such Distribution Date.
(i) GROUP 1 CERTIFICATES AND GROUP 2 CERTIFICATES. (A) On each Distribution
Date on or prior to the Group 1/Group 2 Cross-Over Date, the Group 1 Available
Funds will be distributed in the following order of priority:
FIRST, to the Group 1 Senior Certificates (other than the PO
Component of the Component Certificates), the Accrued
Certificate Interest on each such Class or Component for
such Distribution Date; provided that Accrued Certificate
Interest shall be paid to the Accrual Certificates only
after the Group 1/Group 2 Cross-Over Date. As described
below, Accrued Certificate Interest on each such Class or
Component is subject to reduction in the event of certain
Net Interest Shortfalls allocable thereto. Any Net Interest
Shortfalls shall be allocated among such Group 1 Senior
Certificates as provided in Section 6.01(d);
SECOND, to the Group 1 Senior Certificates (other than the
PO Component of the Component Certificates), any Accrued
Certificate Interest thereon remaining undistributed from
previous Distribution Dates, to the extent of remaining
Group 1 Available Funds, any shortfall in available amounts
being allocated among such Classes and Components in
proportion to the amount of such Accrued Certificate
Interest remaining undistributed for each such Class and
Component for such Distribution Date;
THIRD, to the Group 1 Senior Certificates (other than the IO
Components of the Component Certificates) in reduction of
the Current Principal Amounts thereof:
(A) an amount equal to the sum of the Group 1 Senior P&I
Optimal Principal Amount and the Accrual Distribution
Amount shall be distributed, in the following order of
priority:
FIRST, concurrently to the Class R-1 and Class R-4
Certificates, pro rata, based upon their Current
Principal Amounts, until their respective Current
Principal Amounts have been reduced to zero;
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SECOND, to the Class 1-A-1, Class 1-A-2 and Class 1-A-3
Certificates, in that order, until the Current
Principal Amounts thereof have been reduced to their
respective Planned Principal Amounts;
THIRD, to the Class 1-A-4 Certificates, until the
Current Principal Amount thereof has been reduced to
its Targeted Principal Amount;
FOURTH, to the Class 1-A-5-II Component of the Class
1-A-5 Certificates, until the Current Principal Amount
thereof has been reduced to its Targeted Principal
Amount;
FIFTH, to the Class 1-A-6 and Class 1-A-7 Certificates,
pro rata, until the Current Principal Amounts thereof
have been reduced to their respective Targeted
Principal Amounts;
SIXTH, to the Class 1-A-8 Certificates, until the
Current Principal Amount thereof has been reduced to
zero;
SEVENTH, to the Class 1-A-6 and Class 1-A-7
Certificates, pro rata, without regard to their
respective Targeted Principal Amounts, until the
Current Principal Amounts thereof have been reduced to
zero;
EIGHTH, 61.25% of the amount remaining after clause
SEVENTH above, to the Class 1-A-4 Certificates, and
38.75% of the amount remaining after clause SEVENTH
above, to the 1-A-5-II Component of the Class 1- A-5
Certificates, without regard to their respective
Targeted Principal Amounts, until the Current Principal
Amount of the Class 1-A-4 Certificates has been reduced
to zero;
NINTH, to the Class A-5-II Component of the Class A-5
Certificates, without regard to its Targeted Principal
Amount, until the Current Principal Amount thereof has
been reduced to zero; and
TENTH, to the Class 1-A-1, Class 1-A-2 and Class 1-A-3
Certificates, in that order, with regard to their
respective Planned Principal Amounts, until the Current
Principal Amounts thereof have been reduced to zero;
and
(B) the PO Component Principal Distribution Amount for the
PO Component for such Distribution Date, to the PO
Component, until the Current Principal Amounts thereof
have been reduced to zero; and
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(B) On each Distribution Date on or prior to the Group
1/Group 2 Cross-Over Date, the Group 2 Available Funds will be
distributed in the following order of priority among the Group 2
Senior Certificates:
FIRST, to the Group 2 Senior Certificates, the Accrued
Certificate Interest on each such Class for such Distribution Date. As
described below, Accrued Certificate Interest on each such Class of
Group 2 Senior P&I Certificates is subject to reduction in the event
of certain Net Interest Shortfalls allocable thereto. Any Net Interest
Shortfalls shall be allocated among the Group 2 Senior P&I
Certificates as provided in Section 6.01(d);
SECOND, to the Group 2 Senior Certificates, any Accrued
Certificate Interest thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Group 2 Available
Funds, any shortfall in available amounts being allocated among such
Classes in proportion to the amount of such Accrued Certificate
Interest remaining undistributed for each such Class for such
Distribution Date;
THIRD, to the Group 2 Senior Certificates in reduction of the
Current Principal Amounts thereof, the Group 2 Senior P&I Optimal
Principal Amount, in the following order of priority:
(i) first, to the Class R-2 Certificate, until its
Current Principal Amount has been reduced to zero;
(ii) second, to the Class 2-A Certificate, until its
Current Principal Amount has been reduced to zero;
(C) On each Distribution Date on or prior to the Group 1/Group 2 Cross-Over
Date, an amount equal to any remaining Group 1 and Group 2 Available Funds
following the distributions in clauses (A) and (B) above will be distributed
sequentially, in the following order, in each case to the extent of remaining
Group 1 and Group 2 Available Funds:
(1) the PO Component Deferred Amount for such Distribution
Date, to the PO Component; provided, that (i) on any
Distribution Date, distributions pursuant to this priority
(1) shall not exceed the excess, if any, of (x) the sum of
the Group 1 Available Funds remaining after giving effect to
distributions pursuant to clauses FIRST through THIRD under
Section 6.01(a)(i)(A) above and the Group 2 Available Funds
remaining after giving effect to distributions pursuant to
clauses FIRST through THIRD under Section 6.01(a)(i)(B)
above over (y) the sum of the amount of Accrued Certificate
Interest for such Distribution Date and Accrued Certificate
Interest remaining undistributed from previous Distribution
Dates on all Classes of Group 1 Subordinate
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Certificates then outstanding, (ii) such distributions shall
not reduce the Current Principal Amount of the PO Component
and (iii) no distribution will be made in respect of the PO
Component Deferred Amount after the Group 1/Group 2
Cross-Over Date;
(1) to the Class B-1 Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero;
(2) to the Class B-2 Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero;
(3) to the Class B-3 Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero;
(4) to the Class B-4 Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero;
(5) to the Class B-5 Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero;
(6) to the Class B-6-X Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, in the following order: (a) the
Accrued Certificate Interest
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thereon for such Distribution Date and (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution
Dates.
(7) to the Class B-6-P Certificates to the extent of remaining
Group 1 and Group 2 Available Funds, such Class's Allocable Share for
such Distribution Date, until the Current Principal Amount of such
Class has been reduced to zero.
(D) On or after the occurrence of the Credit Support Depletion Date,
all priorities relating to distributions as described above in respect of
principal among the Group 1 and Group 2 Senior Certificates (other than the
PO Component) will be disregarded and an amount equal to the Discount
Fraction of the principal portion of scheduled or unscheduled payments
received or advanced in respect of Discount Group 1 Mortgage Loans will be
distributed to the PO Component, and following distributions of interest
pursuant to priorities FIRST and SECOND of Section 6.01(a)(i)(A) and (B)
above, the Group 1 and Group 2 Senior P&I Optimal Principal Amount will be
distributed to the Group 1 and Group 2 Senior P&I Certificates remaining
pro rata, regardless of the allocation, or sequential nature, of principal
payments described in priority THIRD of Section 6.01(a)(i)(A) and (B)
above, based upon the then Current Principal Amounts of such Certificates.
(E) If, after distributions have been made pursuant to priorities
FIRST and SECOND under Section 6.01(a)(i)(A) above on any Distribution
Date, the remaining Group 1 Available Funds are less than the sum of the
Group 1 Senior P&I Optimal Principal Amount and the PO Component Principal
Distribution Amount for such Distribution Date, such amounts shall be
proportionately reduced, and such remaining Group 1 Available Funds will be
distributed on the Group 1 Senior Certificates (other than IO Components)
on the basis of such reduced amounts. Notwithstanding any reduction in
principal distributable to the PO Component pursuant to this paragraph, the
principal balance of the PO Component shall be reduced not only by
principal so distributed but also by the difference between (i) principal
distributable to the PO Component in accordance with clause (b) of priority
THIRD under Section 6.01(a)(i)(A) above and (ii) principal actually
distributed to the PO Component after giving effect to this paragraph (such
difference, the "PO Component Cash Shortfall"). The PO Component Cash
Shortfall with respect to any Distribution Date will be added to the PO
Component Deferred Amount.
(F) If, after distributions have been made pursuant to priorities
FIRST and SECOND under Section 6.01(a)(i)(B) above on any Distribution
Date, the remaining Group 2 Available Funds are less than the sum of the
Group 2 Senior P&I Optimal Principal Amount for such Distribution Date,
such amounts shall be proportionately reduced, and such remaining Group 2
Available Funds will be distributed on the Group 2 Senior Certificates on
the basis of such reduced amounts.
(G) The "Class 1-A-8 Accrual Distribution Amount" with respect to a
Distribution Date prior to the Group 1/Group 2 Cross-Over Date is equal to
the Accrued Certificate
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Interest that would otherwise be payable in respect of the Class 1-A-8
Certificates on such Distribution Date. On each Distribution Date prior to
the Group 1/Group 2 Cross-Over Date, the Class 1-A-8 Accrual Distribution
Amount will be added to the Current Principal Amount of the Class 1-A-8
Certificates (such amount thereafter to accrue interest at the Pass-Through
Rate for the Class 1-A-8 Certificates).
(H) The "Class 1-A-5-II Component Accrual Distribution Amount" with
respect to a Distribution Date prior to the Group 1/Group 2 Cross-Over Date
is equal to the Accrued Certificate Interest that would otherwise be
payable in respect of the Class 1-A-5-II Component Certificates on such
Distribution Date. On each Distribution Date prior to the Group 1/Group 2
Cross-Over Date, the Class 1-A-5-II Component Accrual Distribution Amount
will be added to the Current Principal Amount of the Class 1-A-5-II
Component (such amount thereafter to accrue interest at the Pass-Through
Rate for the Class 1-A-5-II Component).
(ii) GROUP 3 CERTIFICATES. (A) On each Distribution Date, the Group 3
Available Funds will be distributed in the following order of priority among the
Group 3 Senior Certificates:
FIRST, to the Group 3 Senior Certificates, the Accrued
Certificate Interest on each such Class for such Distribution
Date. As described below, Accrued Certificate Interest on each
such Class of Group 3 Senior Certificates is subject to reduction
in the event of certain Net Interest Shortfalls allocable
thereto. Any Net Interest Shortfalls shall be allocated among the
Group 3 Senior Certificates as provided in Section 6.01(d);
SECOND, to the Group 3 Senior Certificates, any Accrued
Certificate Interest thereon remaining undistributed from
previous Distribution Dates, to the extent of remaining Group 3
Available Funds, any shortfall in available amounts being
allocated among such Classes in proportion to the amount of such
Accrued Certificate Interest remaining undistributed for each
such Class for such Distribution Date;
THIRD, to the Group 3 Senior P&I Certificates in reduction
of the Current Principal Amounts thereof, the Group 3 Senior P&I
Optimal Principal Amount, in the following order of priority:
(i) first, to the Class R-3 Certificate, until its Current
Principal Amount has been reduced to zero;
(ii) second, to the Class 3-A Certificates, until its
Current Principal Amount has been reduced to zero;
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FOURTH, sequentially, in the following order, to the Class 3-B-1,
Class 3-B-2, Class 3-B-3, Class 3-B-4, Class 3-B-5 and Class
3-B-6 Certificates, in each case up to an amount equal to and in
the following order: (a) the Accrued Certificate Interest thereon
for such Distribution Date, (b) any Accrued Certificate Interest
thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
(B) On each Distribution Date after the Group 3 Cross-Over Date,
distributions of principal on the outstanding Group 3 Senior Certificates
will be made pro rata among all such Group 3 Certificates, regardless of
the allocation, or sequential nature, of principal payments described in
priority THIRD above, based upon the then Current Principal Amounts of such
Group 3 Senior Certificates;
(C) If, after distributions have been made pursuant to priorities
FIRST and SECOND under Section 6.01(a)(ii)(A) above on any Distribution
Date, the remaining Group 3 Available Funds are less than the sum of the
Group 3 Senior P&I Optimal Principal Amount for such Distribution Date,
such amounts shall be proportionately reduced, and such remaining Group 3
Available Funds will be distributed to the Group 3 Senior Certificates on
the basis of such reduced amount.
(b) "Pro rata" distributions among Classes of Certificates will be made in
proportion to the then Current Principal Amount of such Classes.
(c) No Accrued Certificate Interest will be payable with respect to any
Class of Certificates after the Distribution Date on which the Current Principal
Amount or Notional Amount of such Certificate has been reduced to zero.
(d) If on any Distribution Date the applicable Group Available Funds for
the Senior Certificates or Components of a Certificate Group is less than the
Accrued Certificate Interest on such Senior Certificates or Components for such
Distribution Date prior to reduction for Net Interest Shortfall and the interest
portion of Realized Losses, the shortfall will be allocated among the holders of
each Class of interest-bearing Senior Certificates or Components in such
Certificate Group in proportion to the respective amounts of Accrued Certificate
Interest that would have been allocated thereto in the absence of such Net
Interest Shortfall and/or Realized Losses for such Distribution Date. In
addition, the amount of any interest shortfalls with respect to the related
Mortgage Loan Group that are covered by subordination will constitute unpaid
Accrued Certificate Interest and will be distributable to holders of the
Certificates of the related Classes or Components entitled to such amounts on
subsequent Distribution Dates, to the extent of the applicable Group Available
Funds after current interest distributions as required herein. Any such amounts
so carried forward will not bear interest. Shortfalls in interest payments will
not be offset by a reduction in the servicing compensation of the Master
Servicers or otherwise, except to the extent of applicable Compensating Interest
Payments.
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(e) On each Distribution Date, the funds available for distribution shall
be allocated to distributions on each of the Series REMIC Regular Interests in
an amount sufficient to make the distributions on the corresponding Certificates
on such Distribution Date in accordance with the provisions of subsection (a) of
this Section 6.01 and Section 5.01, unless specifically provided otherwise in
this Agreement.
(f) The expenses and fees of the Trust shall be paid by each of the Series
REMICs, to the extent that such expenses relate to the assets of each of such
respective Series REMICs, and all other expenses and fees of the Trust shall be
paid pro rata by each of the Series REMICs.
Section 6.02. ALLOCATION OF LOSSES. (a) On or prior to each Determination
Date, the CMC Master Servicer and the IndyMac Master Servicer shall determine
the amount of any Realized Loss in respect of each CMC Mortgage Loan and IndyMac
Mortgage Loan, respectively, in each Mortgage Loan Group that occurred during
the immediately preceding calendar month. The Trustee shall then with respect to
each such Group 1 Mortgage Loan allocate Realized Losses on a pro rata basis
between the PO Percentage of the Scheduled Principal Balance of a Mortgage Loan
which suffered a Realized Loss and the Non-PO Percentage of the Scheduled
Principal Balance of such Mortgage Loan.
(b) With respect to any Determination Date, with respect to Group 1
Certificates and Group 2 Certificates, the principal portion of each Realized
Loss on a Group 1 Mortgage Loan or Group 2 Mortgage Loan (other than any Excess
Bankruptcy Loss, Excess Special Hazard Loss and Excess Fraud Loss) shall be
allocated as follows:
(i) The applicable PO Percentage of any such Realized Loss
on a Group 1 Mortgage Loan shall be allocated to the PO Component; and
(ii) The applicable Non-PO Percentage of any such Realized
Loss on a Group 1 Mortgage Loan and any such Realized Loss on a Group 2
Mortgage Loan shall be allocated as follows:
first, to the Class B-6-P Certificates until the
current Principal Amount thereof has been reduced to zero;
second, to the Class B-5 Certificates until the Current
Principal Amount thereof has been reduced to zero;
third, to the Class B-4 Certificates until the Current
Principal Amount thereof has been reduced to zero;
fourth, to the Class B-3 Certificates until the Current
Principal Amount thereof has been reduced to zero;
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fifth, to the Class B-2 Certificates until the Current
Principal Amount thereof has been reduced to zero;
sixth, to the Class B-1 Certificates until the Current
Principal amount thereof has been reduced to zero; and
seventh, to the Group 1 and Group 2 Senior Certificates
(other than the PO Component), pro rata, in accordance with their Current
Principal Amounts.
(B) With respect to any Determination Date, with respect to Group 3
Certificates, the principal portion of each Realized Loss on a Group 3 Mortgage
Loan (other than any Excess Bankruptcy Loss, Excess Special Hazard Loss and
Excess Fraud Loss) shall be allocated as follows:
first, to the Class 3-B-6 Certificates until the current
Principal Amount thereof has been reduced to zero;
second, to the Class 3-B-5 Certificates until the Current
Principal Amount thereof has been reduced to zero;
third, to the Class 3-B-4 Certificates until the Current
Principal Amount thereof has been reduced to zero;
fourth, to the Class 3-B-3 Certificates until the Current
Principal Amount thereof has been reduced to zero;
fifth, to the Class 3-B-2 Certificates until the Current
Principal Amount thereof has been reduced to zero;
sixth, to the Class 3-B-1 Certificates until the Current
Principal amount thereof has been reduced to zero;
seventh, to the Classes of Group 3 Senior Certificates, pro
rata, in accordance with their Current Principal Amounts; and
(D) With respect to any Distribution Date, the principal
portion of any Excess Loss related to a Group 1 Mortgage Loan and Group 2
Mortgage shall be allocated as follows:
(i) with respect to Group 1 Mortgage Loans, the
applicable PO Percentage of any such Excess Loss shall be allocated to the
PO Component; and
(ii) with respect to Group 1 Mortgage Loans, the
applicable Non-PO Percentage of any such Excess Loss and with respect to a
Group 2 Mortgage Loan, the
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amount of such Excess Loss, shall be allocated among all Classes of Group 1
and Group 2 Certificates (other than the PO Component), pro rata, based on
the respective Current Principal Amounts thereof.
(E) With respect to any Distribution Date, the principal portion
of any Excess Loss related to a Group 3 Mortgage Loan shall be allocated among
all Classes of Group 3 Certificates, pro rata, based on the respective Current
Principal Amounts thereof.
(F) Notwithstanding the foregoing, any Special Hazard Loss
allocable to the Class 2-A Certificates pursuant to clause (B) or (D) above
shall be allocated to the Class 2-A Certificates and Group 3 Certificates on a
pro rata basis, based on the Current Principal Amount of the Class 2-A
Certificates and the aggregate Current Principal Amount of the Group 3
Certificates, in reduction of the Current Principal Amounts thereof until
reduced to zero, with any such loss allocable to the Group 3 Certificates
allocated in the order described in clause (B) above.
(G) Notwithstanding the foregoing, no such allocation of any
Realized Loss shall be made on a Distribution Date to (i) a Class of Group 1
Certificates or Group 2 Certificates to the extent that such allocation would
result in the reduction of the aggregate Current Principal Amounts of all the
Group 1 Certificates and Group 2 Certificates as of such Distribution Date,
after giving effect to all distributions and prior allocations of Realized
Losses on such date, to an amount less than the aggregate Scheduled Principal
Balance of the Group 1 Mortgage Loans and Group 2 Mortgage loans as of the first
day of the month of such Distribution Date (such limitation, the "Group 1/Group
2 Loss Allocation Limitation"), (ii) a Class of Group 3 Certificates to the
extent that such allocation would result in the reduction of the aggregate
Current Principal Amounts of all the Group 3 Certificates as of such
Distribution Date, after giving effect to all distributions and prior
allocations of Realized Losses on such date, to an amount less than the
aggregate Scheduled Principal Balance of the Group 3 Mortgage Loans as of the
first day of the month of such Distribution Date (such limitation, the "Group 3
Loss Allocation Limitation").
(c) Any Realized Losses allocated to a Class of Certificates pursuant to
Subsection 6.02(b) shall be allocated among the Certificates of such Class in
proportion to their respective Current Principal Amounts. Any allocation of
Realized Losses pursuant to this Subsection 6.02(c) shall be accomplished by
reducing the Current Principal Amount of the related Certificates on the related
Distribution Date in accordance with Subsection 6.02(d).
(d) Realized Losses allocated in accordance with this Section 6.02 shall be
allocated on the Distribution Date in the month following the month in which
such loss was incurred and, in the case of the principal portion thereof, after
giving effect to distributions made on such Distribution Date, except that the
aggregate amount of Realized Losses to be allocated to the PO Component on any
Distribution Date through the related Cross-Over Date will be taken into account
in determining distributions in respect of the PO Component Deferred Amount for
such Distribution Date.
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(e) On each Distribution Date, the Trustee shall determine the Group
1/Group 2 Subordinate Certificate Writedown Amount and the Group 3 Subordinate
Certificate Writedown Amount, if any. Any such Group 1/Group 2 Subordinate
Certificate Writedown Amount or Group 3 Subordinate Certificate Writedown Amount
shall effect a corresponding reduction in the Current Principal Amount of (i) if
prior to the Group 1/Group 2 Cross-Over Date or Group 3 Cross-Over Date, as
applicable, the Current Principal Amounts of the Group 1 and Group 2 Subordinate
Certificates and the Group 3 Subordinate Certificates, respectively, in the
reverse order of their numerical Class designations and (ii) from and after the
Group 1/Group 2 Cross-Over Date or Group 3 Cross-Over Date, as applicable, the
Group 1 and Group 2 Senior Certificates and the Group 3 Senior Certificates,
respectively, pro rata based on their respective Current Principal Amounts,
which reduction shall occur on such Distribution Date after giving effect to
distributions made on such Distribution Date.
(f) On each Distribution Date, on or prior to the Group 1/Group 2
Cross-Over Date the Trustee shall determine the PO Component Deferred Payment
Writedown Amount with respect to the PO Component, if any. Any such PO Component
Deferred Payment Writedown Amount with respect to the PO Component shall effect
a corresponding reduction in the Current Principal Amount of the Group 1
Subordinate Certificates in the reverse order of their numerical Class
designations.
(g) The interest portion of any Realized Losses on Group 1, Group 2 and
Group 3 Mortgage Loans occurring on or prior to the Group 1/Group 2 Cross-Over
Date (with respect to Group 1 and Group 2 Mortgage Loans) or the Group 3
Cross-Over Date (with respect to Group 3 Mortgage Loans), will not be allocated
among any Certificates, but will reduce the amount of Group 1 and Group 2
Available Funds and Group 3 Available Funds, respectively, on the related
Distribution Date. As a result of the subordination of each Group of Subordinate
Certificates in right of distribution, such Realized Losses will be borne first
by the Group 1 and Group 2 Subordinate Certificates (with respect to Group 1 and
Group 2 Mortgage Loans) and Group 3 Subordinate Certificates (with respect to
Group 3 Mortgage Loans), respectively, in inverse order of their numerical Class
designations.
Section 6.03. PAYMENTS. (a) On each Distribution Date, other than the final
Distribution Date, the Trustee shall distribute to each Certificateholder of
record on the directly preceding Record Date the Certificateholder's PRO RATA
share of its Class (based on the aggregate Fractional Undivided Interest
represented by such Holder's Certificates) of all amounts required to be
distributed on such Distribution Date to such Class. The Trustee shall calculate
the amount to be distributed to each Class and, based on such amounts, the
Trustee shall determine the amount to be distributed to each Certificateholder.
All of the Trustee's calculations of payments shall be based solely on
information provided to the Trustee by the Master Servicers. The Trustee shall
not be required to confirm or verify any such information provided to the
Trustee by a Master Servicer and shall be entitled conclusively to rely on such
information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register
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or (ii) upon receipt by the Trustee on or before the fifth Business Day
preceding the Record Date of written instructions from a Certificateholder
holding Certificates representing an initial aggregate Current Principal Amount
or Notional Amount of not less than $1,000,000 by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
PROVIDED, HOWEVER, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Trustee specified in the
notice to Certificateholders of such final payment.
Section 6.04. STATEMENTS TO CERTIFICATEHOLDERS. (a) Concurrently with each
distribution to Certificateholders, the Trustee shall prepare and forward by
first-class mail to each Certificateholder, with a copy to the Seller, each
Master Servicer and the Rating Agencies, a statement setting forth the following
information, expressed with respect to clauses (i) through (vi) in the aggregate
and as a Fractional Undivided Interest representing an initial Current Principal
Amount of $1,000, or in the case of each Class of Notional Amount Certificates,
a Notional Amount of $1,000, or in the case of each Class of Residual
Certificates, its initial Current Principal Amount:
(i) the Current Principal Amount (or Notional Amount in the case of
Notional Amount Certificates) of each Class of Certificates immediately
prior to such Distribution Date;
(ii) the amount of the distribution allocable to principal on each
applicable Class of Certificates;
(iii) the aggregate amount of interest accrued at the related
Pass-Through Rate with respect to each Class of interest-bearing
Certificates during the related Interest Accrual Period;
(iv) the Net Interest Shortfall and any other adjustments to interest
at the related Pass-Through Rate necessary to account for any difference
between interest accrued and aggregate interest distributed with respect to
each Class of interest-bearing Certificates (other than the Accrual
Certificates);
(v) the amount of the distribution allocable to interest on each Class
of interest-bearing Certificates and the Accrual Distribution Amount added
to the Current Principal Amount of the Accrual Certificates;
(vi) the Pass-Through Rates for each Class of interest-bearing
Certificates and each Component of the Component Certificates with respect
to such Distribution Date;
(vii) the Current Principal Amount (or Notional Amount in the case of
the Notional Amount Certificates) of each Class of Certificates after such
Distribution Date;
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(viii) the amount of any Monthly Advances, Compensating Interest
Payments and outstanding unreimbursed advances by a Master Servicer
included in such distribution separately stated for each Mortgage Loan
Group;
(ix) the amount of any Realized Losses (listed separately for each
Mortgage Loan Group) during the related Prepayment Period and cumulatively
since the Cut-off Date and the amount and source (separately identified) of
any distribution in respect thereof included in such distribution;
(x) the amount of Scheduled Principal and Principal Prepayments,
(including but separately identifying the principal amount of principal
prepayments, Insurance Proceeds, the purchase price in connection with the
purchase of Mortgage Loans, cash deposits in connection with substitutions
of Mortgage Loans and Net Liquidation Proceeds) with respect to each
Mortgage Loan Group and the number and principal balance of Mortgage Loans
purchased or substituted for during the relevant period and cumulatively
since the Cut-off Date with respect to each Mortgage Loan Group;
(xi) the number of Mortgage Loans (excluding REO Property) in each
Mortgage Loan Group remaining in the Trust Fund as of the end of the
related Due Period;
(xii) information for each Mortgage Loan Group regarding any Mortgage
Loan delinquencies as of the end of the related Due Period, including the
aggregate number, aggregate Outstanding Principal Balance and aggregate
Scheduled Principal Balance of Mortgage Loans delinquent one month, two
months and three months or more;
(xiii) for each Mortgage Loan Group, the number of Mortgage Loans in
the foreclosure process as of the end of the related Due Period and the
aggregate Outstanding Principal Balance of such Mortgage Loans;
(xiv) for each Mortgage Loan Group, the number and aggregate
Outstanding Principal Balance of all Mortgage Loans as to which the
Mortgaged Property was REO Property as of the end of the related Due
Period;
(xv) the book value (the sum of (A) the Outstanding Principal Balance
of the Mortgage Loan, (B) accrued interest through the date of foreclosure
and (C) foreclosure expenses) of any REO Property in each Mortgage Loan
Group; PROVIDED THAT, in the event that such information is not available
to the Master Servicer and the Trustee on the Distribution Date, such
information shall be furnished promptly after it becomes available;
(xvi) the amount of Realized Losses allocated to each Class of
Certificates since the prior Distribution Date and in the aggregate for all
prior Distribution Dates;
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(xvii) the amount of Special Hazard Losses, Fraud Losses and
Bankruptcy Losses with respect to each Mortgage Loan Group on such
Distribution Date and in the aggregate for all prior Distribution Dates;
and
(xviii) any Diverted Amount for such Distribution Date; and
(xix) the then applicable Senior Percentage, Senior Prepayment
Percentage, Subordinate Percentage and Subordinate Prepayment Percentage
for each Certificate Group.
The Trustee may make such information available each month to any
interested party via the Trustee's website, electronic bulletin board and its
fax-on-demand service. The Trustee's website will be located at
"www.ctslink.com". The Trustee's electronic bulletin board may be accessed by
calling (301) 815-6620, and its fax-on-demand service may be accessed by calling
(301) 815-6610. The Trustee will notify each Certificateholder, the Rating
Agencies, the Seller, BSMCC and each Master Servicer in the event of a change of
such website and telephone numbers. The information set forth above shall be
calculated, or reported, as the case may be, by the Trustee based on data
provided by each Master Servicer pursuant to Section 6.05 upon which the Trustee
may conclusively rely and which the Trustee shall not be required to confirm or
verify. The information furnished by the Master Servicers shall be sufficient
for the Trustee to calculate any payments or statements it is required to make.
(b) By April 30 of each year beginning in 1999, the Trustee will furnish a
report to each Holder of the Certificates of record at any time during the prior
calendar year as to the aggregate of amounts reported pursuant to subclauses
(a)(ii) and (a)(v) above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other customary
information as each Master Servicer determines and advises the Trustee to be
necessary and/or to be required by the Internal Revenue Service or by a federal
or state law or rules or regulations to enable such Holders to prepare their tax
returns for such calendar year. Such obligations shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to the requirements of the Code.
Each Master Servicer shall supply to the Trustee in a timely manner the
information required for the reports described above.
Section 6.05. REPORTS TO THE TRUSTEE AND EACH MASTER SERVICER. (a) Not
later than 15 days after each Distribution Date, at the request of each Master
Servicer, the Trustee shall forward to each Master Servicer a statement setting
forth the status of the Certificate Account and each subaccount thereof as of
the close of business on the last day of the month of the Distribution Date and
showing, for the month covered by such statement, deposits in or withdrawals
from the Certificate Account. On or before the seventh Business Day of each
month, the CMC Master Servicer shall provide to the Trustee, with respect to the
related Mortgage Loans and the related REO Property, an electronic data file
containing the information included in Exhibit K. On or before the 15th day of
each month, the IndyMac Master Servicer shall provide to the Trustee, with
respect to the related Mortgage Loans
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and the related REO Property, an electronic data file containing the information
included in Exhibit K.
(b) On or before 12:00pm on the Business Day following each Determination
Date, each Master Servicer shall provide to the Trustee (and with respect to the
information contained in subclause (xi) hereof, the Seller), with respect to the
related Mortgage Loans in each Mortgage Loan Group and the related REO Property,
respectively, a Loan Summary and Remittance Report in such electronic format as
the Trustee may reasonably request and in such hardcopy format as each Master
Servicer and the Trustee shall agree which, if there are Sub-Servicers, shall be
based upon reports from Sub-Servicers, if any, received by a Master Servicer on
or before the seventh Business Day of such month with respect to the related
Mortgage Loans and related REO Property in each Mortgage Loan Group and
containing the following information (in respect of the REO Property, only such
information which is applicable) (provided that the information marked with an
"*" below may be provided by CMC solely in a hardcopy format) and IndyMac shall
provide such information to the Trustee in a mutually acceptable format.
*(i) Aggregate deposits to and withdrawals from each subaccount of the
Certificate Account since the date of the prior statement, stated
separately for each category of deposit specified in Section 4.02 and each
category of withdrawal specified in Section 4.03, indicating separately the
aggregate of amounts withdrawn which are not applicable to a particular
Mortgage Loan in each Mortgage Loan Group;
(ii) Amount of each Group Available Funds expected for the related
Distribution Date and attributable to each of the following categories:
(A) regularly scheduled principal;
(B) Principal Prepayments (stated separately for (u) partial
prepayments, (v) full prepayments, (w) Net Liquidation Proceeds,
stating Liquidation Proceeds and Liquidation Expenses
separately), *(x) Insurance Proceeds, *(y) the purchase price in
connection with the purchase of a Mortgage Loan, and *(z) any
cash deposit in connection with the substitution of a related
Mortgage Loan;
(C) Regularly scheduled interest on the related Mortgage Loans;
*(D) Monthly Advances made by such Master Servicer;
*(E) Certificate Account Advances;
(F) Compensating Interest Payments; and
*(G) reimbursements in connection with losses on Permitted
Investments.
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(iii) Aggregate Outstanding Principal Balances of the related Mortgage
Loans in each Mortgage Loan Group as of the related Due Date, without
giving effect to payments due on such date;
(iv) Realized Losses with respect to each Mortgage Loan Group for the
prior month;
(v) Aggregate Scheduled Principal Balance of the related Mortgage
Loans in each Mortgage Loan Group as of the related Due Date;
*(vi) Book value of any collateral acquired by means of foreclosure,
grant of deed in lieu of foreclosure or otherwise in respect of any related
Mortgage Loan in each Mortgage Loan Group;
(vii) Number and aggregate principal balance of related Mortgage Loans
in each Mortgage Loan Group which are 30, 60, 90 and 120 days delinquent as
calculated by such Master Servicer, those which are in foreclosure, those
with respect to which the related Mortgagor is bankrupt, and those which
are REO Property;
(x) Interest Shortfall with respect to the related Distribution Date
and portion thereof resulting from Voluntary Principal Prepayments in full
or the provisions of the Relief Act;
(xi) The amount, if any, by which the aggregate of payments of
scheduled principal and interest on the related Mortgage Loans in each
Mortgage Loan Group that were due on the related Due Date and delinquent,
other than as a result of the Relief Act, as of the 18th day of such month
exceeds the sum of the Monthly Advances to be made by such Master Servicer
and Certificate Account Advances for such Distribution Date;
*(xii) Applicable aggregate Master Servicing Fee for the related Due
Period; and
(xiii) Such other information regarding each related Mortgage Loan in
each Mortgage Loan Group, including, but not limited to, an updated
schedule of the Scheduled Principal Balances of such Mortgage Loans as of
the related Due Date, in such electronic format, as may be reasonably
requested by the Trustee and, if requested, in such hardcopy format as such
Master Servicer and the Trustee shall agree.
Section 6.06. MONTHLY ADVANCES. If the Scheduled Payment (together with any
advances from any Sub-Servicers) on a CMC Mortgage Loan or an IndyMac Mortgage
Loan that was due on a related Due Date and is delinquent other than as a result
of application of the Relief Act exceeds the amount deposited in the Certificate
Account which will be used for a Certificate Account Advance with respect to
such Mortgage Loan, CMC (with respect to a CMC Mortgage Loan) or IndyMac (with
respect to an IndyMac Mortgage Loan) will deposit in the appropriate subaccount
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of the Certificate Account not later than the Advancing Date immediately
preceding the related Distribution Date an amount equal to such deficiency, net
of the related Master Servicing Fee for such Mortgage Loan except to the extent
such Master Servicer determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage Loan
for which such Monthly Advance was made. Subject to the foregoing, such Master
Servicer shall continue to make such advances through the date that the related
Mortgaged Property has, in the judgment of such Master Servicer, been completely
liquidated. Any amount used as a Certificate Account Advance shall be replaced
by the applicable Master Servicer by deposit in the appropriate subaccount of
the Certificate Account on or before any future date on which and to the extent
that funds in the appropriate subaccount of the Certificate Account on such date
are less than the amount required to be transferred by such Master Servicer to
such subaccount of the Certificate Account. If applicable, on the fifth Business
Day preceding each Distribution Date, each Master Servicer shall present an
Officer's Certificate to the Trustee (i) stating that such Master Servicer
elects not to make a Monthly Advance in a stated amount and (ii) detailing the
reason it deems the advance to be nonrecoverable.
Section 6.07. COMPENSATING INTEREST PAYMENTS. Each Master Servicer shall
deposit in the Certificate Account not later than the Advancing Date immediately
preceding the related Distribution Date an amount equal to the lesser of (i) the
aggregate amounts determined pursuant to subclauses (a) and (b) of the
definition of Interest Shortfall as calculated with respect to Mortgage Loans
serviced by such Master Servicer for the related Distribution Date and (ii) the
applicable Master Servicing Fee for such Distribution Date (except that any
Master Servicing Fee of CMC that is based on a CMC Master Servicing Fee Rate in
excess of 0.20% shall not be considered in calculating the amount of any
Compensating Interest Payment due from CMC and any Master Servicing Fee of
IndyMac that is based on an IndyMac Master Servicing Fee Rate in excess of the
IndyMac Base Servicing Fee shall not be considered in calculating the amount of
any Compensating Interest Payment due from IndyMac) (such amount, the
"Compensating Interest Payment"). A Master Servicer shall not be entitled to any
reimbursement of any Compensating Interest Payment.
Section 6.08. REPORTS OF FORECLOSURES AND ABANDONMENT OF MORTGAGED
PROPERTY. Each year each Master Servicer shall report or cause to be reported to
the Internal Revenue Service foreclosures and abandonments of any Mortgaged
Property as required by Section 6050J of the Code and shall provide a copy of
such report to the Trustee.
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ARTICLE VII
The Master Servicers
Section 7.01. LIABILITIES OF THE MASTER SERVICERS. Each Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by it herein. Only the CMC Master
Servicer or the IndyMac Master Servicer, as the case may be, shall be liable
with respect to the servicing of the CMC Mortgage Loans or the IndyMac Mortgage
Loans, respectively, and any related REO Property for actions taken by any such
person in contravention of such Master Servicer's duties hereunder.
Section 7.02. MERGER OR CONSOLIDATION OF THE MASTER SERVICERS. (a) Each
Master Servicer will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any Person into which either Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which either Master Servicer shall be a party, or any Person succeeding to the
business of either Master Servicer, shall be the successor of such Master
Servicer hereunder, without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 7.03. INDEMNIFICATION OF THE TRUSTEE. (a) Each Master Servicer
agrees to the extent described in Section 7.03(b) to indemnify the Indemnified
Persons for, and to hold them harmless against, any loss, liability or expense
(including costs of defense and reasonable legal fees) incurred on their part,
arising out of, or in connection with, this Agreement, including the costs and
expenses (including reasonable legal fees and expenses) of defending themselves
against any such claim other than (i) any loss, liability or expense related to
its failure to perform its duties in compliance with this Agreement (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement and (ii) any loss, liability or expense incurred by reason of
such Person's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided that with respect to any such claim,
the Trustee shall have given each Master Servicer and the Seller written notice
thereof promptly after the Trustee shall have with respect to such claim
knowledge thereof.
(b) Only the CMC Master Servicer will indemnify any Indemnified Person for
any loss, liability or expense which primarily relates to the servicing or
administration of the CMC Mortgage Loans. Only the IndyMac Master Servicer will
indemnify any Indemnified Person for any loss, liability for expense which
primarily relates to the servicing or administration of the IndyMac Mortgage
Loans. The Seller will indemnify any Indemnified Person for any other loss,
liability or expense of any Indemnified Person not otherwise referred to in this
paragraph.
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Section 7.04. LIMITATION ON LIABILITY OF THE MASTER SERVICERS AND OTHERS.
Subject to the obligation of each Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03, neither the Master Servicers nor any of the
directors, officers, employees or agents of either Master Servicer shall be
under any liability to the Indemnified Persons, the Seller, the Trust Fund or
the Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
PROVIDED, HOWEVER, that this provision shall not protect either Master Servicer
or any such Person against any breach of warranties or representations made
herein or any liability which would otherwise be imposed by reason of such
Person's willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder.
(a) Each Master Servicer and any director, officer, employee or agent of
either 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.
(b) Each Master Servicer and any director, officer, employee or agent of
either Master Servicer shall be indemnified by the Trust and held harmless
thereby against any loss, liability or expense incurred in connection with any
legal proceedings relating to this Agreement or the Certificates (including
reasonable legal fees and disbursements of counsel), other than (i) any loss,
liability or expense related to its failure to perform its duties in compliance
with this Agreement (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and (ii) any loss, liability
or expense incurred by reason of such Person's willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder.
(c) Neither Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; PROVIDED, HOWEVER, each Master Servicer may in its discretion, with
the consent of the Trustee, undertake any such action which it may deem
necessary or desirable with respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund,
and each Master Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account as provided by Subsection 4.03(a). Any such indemnification
or reimbursement to the Master Servicers which is not specifically related to a
Mortgage Loan Group shall be charged against the sub-accounts of the Certificate
Account PRO RATA based upon the respective outstanding principal amounts of the
Mortgage Loans in each of the Mortgage Loan Groups. Nothing in this Subsection
7.04(d) shall affect either Master Servicer's obligation to supervise, or to
take such actions as are necessary to ensure the servicing and administration of
the Mortgage Loans pursuant to Subsection 3.01(a).
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(d) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicers shall not be required to investigate or make recommendations
concerning potential liabilities which the Trust might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential liabilities.
Section 7.05. MASTER SERVICERS NOT TO RESIGN. Except as provided in Section
7.07, neither Master Servicer shall resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of either Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee. No such resignation by either Master Servicer shall
become effective until the Trustee or a successor to such Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of such Master Servicer in accordance with Section 8.02 hereof.
The Trustee shall notify the Rating Agencies of the resignation of a Master
Servicer.
Section 7.06. SUCCESSOR MASTER SERVICERS. In connection with the
appointment of any successor Master Servicer or the assumption of the duties of
a Master Servicer, the Trustee may make such arrangements for the compensation
of such successor master servicer out of payments on related Mortgage Loans as
the Trustee and such successor master servicer shall agree. If the successor
master servicer does not agree that such market value is a fair price, such
successor master servicer shall obtain two quotations of market value from third
parties actively engaged in the servicing of single-family mortgage loans.
Section 7.07. SALE AND ASSIGNMENT OF MASTER SERVICING. Each Master Servicer
may sell and assign its rights and delegate its duties and obligations in their
entirety as Master Servicer under this Agreement; PROVIDED, HOWEVER, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for Fannie Mae or
Freddie Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of the proposed successor to either Master
Servicer and each Rating Agency's rating of the Certificates in effect
immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to each Master
Servicer and the Trustee; and (iii) such Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer's Certificate and
an Opinion of Independent Counsel, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
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permitted by and complies with the terms of this Agreement. No such assignment
or delegation shall affect any liability of either Master Servicer arising prior
to the effective date thereof.
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ARTICLE VIII
Default
Section 8.01. EVENTS OF DEFAULT. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) A Master Servicer fails to cause to be deposited in the
Certificate Account any amount so required to be deposited pursuant to this
Agreement, and such failure continues unremedied for a period of two
Business Days after the date on which notice was given requiring such
deposit to be made; or
(ii) A Master Servicer fails to observe or perform in any material
respect any other covenants and agreements set forth in the Certificates or
this Agreement to be performed by it, which covenants and agreements
materially affect the rights of Certificateholders, and such failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure, properly requiring the same to be remedied,
shall have been given to such Master Servicer by the Trustee or to such
Master Servicer and the Trustee by the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the Trust
Fund; or
(iii) There is entered against a Master Servicer a decree or order by
a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against either Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) A Master Servicer consents to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to such
Master Servicer or substantially all of its property; or a Master Servicer
admits in writing its inability to pay its debts generally as they become
due, files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations; or
(v) A Master Servicer assigns or delegates its duties or rights under
this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07.
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In each and every such case, so long as such Event of Default with respect to a
Master Servicer shall not have been remedied, either the Trustee or the Holders
of Certificates evidencing Fractional Undivided Interests aggregating not less
than 51% of the principal of the Trust Fund, by notice in writing to such Master
Servicer (and to the Trustee if given by such Certificateholders), with a copy
to the Rating Agencies, may terminate all of the rights and obligations (but not
the liabilities) of such Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by such Master Servicer and the
proceeds thereof. Upon the receipt by such Master Servicer of the written
notice, all authority and power of such Master Servicer under this Agreement,
whether with respect to the Certificates, the Mortgage Loans, REO Property or
under any other related agreements, including the Sub-Servicing Agreements (but
only to the extent that such other agreements relate to the Mortgage Loans or
REO Property) shall, subject to Section 8.02, automatically and without further
action pass to and be vested in the Trustee pursuant to this Section 8.01; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of such 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. Each Master Servicer
agrees to cooperate with the Trustee in effecting the termination of such Master
Servicer's rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the property and amounts which are then or should
be part of the Trust or which thereafter become part of the Trust; (ii)
originals or copies of all documents of such Master Servicer reasonably
requested by the Trustee to enable it to assume such Master Servicer's duties
thereunder; and (iii) the rights and obligations of the CMC Master Servicer
under any Sub-Servicing Agreements with respect to the CMC Mortgage Loans and
the rights and obligations of the IndyMac Master Servicer under any
Sub-Servicing Agreements with respect to the IndyMac Mortgage Loans. In addition
to any other amounts which are then, or, notwithstanding the termination of its
activities under this Agreement, may become payable to such Master Servicer
under this Agreement, such Master Servicer shall be entitled to receive, out of
any amount received on account of a Mortgage Loan or REO Property, that portion
of such payments which it would have received as reimbursement pursuant to
Section 3.14 if notice of termination had not been given. The termination of the
rights and obligations of a Master Servicer shall not affect any obligations
incurred by such Master Servicer prior to such termination.
Section 8.02. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a) Upon the
receipt by either Master Servicer of a notice of termination pursuant to Section
8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to the effect
that such Master Servicer is legally unable to act or to delegate its duties to
a Person which is legally able to act, the Trustee shall automatically become
the successor in all respects to such Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on such Master Servicer by
the terms and provisions hereof; PROVIDED, HOWEVER, that the Trustee (i) shall
be under no obligation to purchase any Mortgage Loan pursuant to Section 10.01;
and (ii) shall have no obligation whatsoever with respect to any liability
(other than advances deemed recoverable and not previously made)
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incurred by such Master Servicer at or prior to the time of receipt by such
Master Servicer of such notice or by the Trustee of such Opinion of Independent
Counsel, including any liabilities associated with either Master Servicer's
failure to modify its computer and any other systems in a manner such that such
Master Servicer can service the related Mortgage Loans in accordance with the
terms of this Agreement on and after January 1, 2000. As compensation therefor,
but subject to Section 7.06, the Trustee shall be entitled to all funds relating
to the Mortgage Loans which such Master Servicer would have been entitled to
retain if such Master Servicer had continued to act hereunder, except for those
amounts due such Master Servicer as reimbursement for advances previously made
or expenses previously incurred. Notwithstanding the above, the Trustee may, if
it shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Fannie Mae- or
Freddie Mac- approved servicer, and with respect to a successor to such Master
Servicer only, having a net worth of not less than $10,000,000, as the successor
to such Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such Master Servicer hereunder.
Pending appointment of a successor to either Master Servicer hereunder, the
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree; PROVIDED, HOWEVER, that the provisions of Section
7.06 shall apply, no such compensation shall be in excess of that permitted the
Trustee under this Subsection 8.02(a), and that such successor shall undertake
and assume the obligations of the Trustee to pay compensation to any third
Person acting as an agent or independent contractor in the performance of master
servicing responsibilities hereunder. The Trustee and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
(b) If the Trustee shall succeed to any duties of either Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX shall be inapplicable to the Trustee in its duties as the successor
to such Master Servicer in the servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VII, however, shall apply to it in its capacity as
successor master servicer.
Section 8.03. NOTIFICATION TO CERTIFICATEHOLDERS. Upon any termination or
appointment of a successor to a Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
Section 8.04. WAIVER OF DEFAULTS. The Trustee shall transmit by mail to all
Certificateholders, within 60 days after the occurrence of any Event of Default
known to the Trustee, unless such Event of Default shall have been cured, notice
of each such Event of Default hereunder known to the Trustee. The Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
51% of the Trust Fund may, on behalf of all Certificateholders, waive any
default by either Master Servicer in the performance of its obligations
hereunder and the
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consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Certificates. Upon any such waiver of a
past default, such default shall be deemed to cease to exist, and any Event of
Default arising therefrom shall be deemed to have been timely remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived. The related Master Servicer shall give notice of any such
waiver to the Rating Agencies.
Section 8.05. LIST OF CERTIFICATEHOLDERS. Upon written request of three or
more Certificateholders of record, for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Trustee will afford such Certificateholders access during business hours to the
most recent list of Certificateholders held by the Trustee.
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ARTICLE IX
Concerning the Trustee
Section 9.01. DUTIES OF TRUSTEE. (a) The Trustee, prior to the occurrence
of an Event of Default and after the curing or waiver of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement as duties of the Trustee. If an
Event of Default has occurred and has not been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
subject to Section 8.02(b) use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs, but only with respect to the defaulting Master
Servicer.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee pursuant to any provision of this Agreement, the
Trustee shall examine them to determine whether they are in the form required by
this Agreement; PROVIDED, HOWEVER, that the Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by a Master Servicer
hereunder.
(c) The Trustee shall make monthly distributions and the final distribution
to the Certificateholders as provided in Sections 6.01 and 10.01 herein.
(d) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the directions of the Holders of
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Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the Trust Fund, if such action or non-action relates to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or other power conferred
upon the Trustee, under this Agreement; and
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of a 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, a Master Servicer in accordance with
the terms of this Agreement.
(e) All funds received by the Trustee and required to be deposited in the
Certificate Account pursuant to this Agreement will be promptly so deposited by
the Trustee. The Trustee shall not be liable for interest or other compensation
on uninvested funds held under this Agreement.
(f) Except for those actions that the Trustee is required to take
hereunder, the Trustee shall have no obligation or liability to take any action
or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02. CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as otherwise
provided in Section 9.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting in reliance on any resolution, Officer's
Certificate, certificate of a Servicing Officer, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee may consult with counsel and any advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement, other than its obligation
to give notices pursuant to this
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Agreement, or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby. Nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default of which a Responsible Officer of the Trustee's Corporate Trust
Office has actual knowledge (which has not been cured or waived), subject
to Section 8.02(b), to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs;
(iv) The Trustee shall not be liable in its individual capacity for
any action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the Trust Fund and provided that the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement. The Trustee may require reasonable
indemnity against such expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid
by the Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through Affiliates, agents
or attorneys; PROVIDED, HOWEVER, that the Trustee may not appoint any agent
to perform its custodial functions with respect to the Mortgage Files or
paying agent functions under this Agreement without the express written
consent of each Master Servicer, which consent will not be unreasonably
withheld. The Trustee shall not be liable or responsible for the misconduct
or negligence of any of the Trustee's agents or attorneys or a custodian or
paying agent appointed hereunder by the Trustee with due care and, when
required, with the consent of each Master Servicer;
(vii) Should the Trustee deem the nature of any action required on its
part, other than a payment or transfer under Subsection 4.02(b) or Section
4.03, to be unclear, the Trustee may require prior to such action that it
be provided by the related Master Servicer with reasonable further
instructions;
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(viii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) The Trustee shall not be required to give any bond or surety with
respect to the execution of the trust created hereby or the powers granted
hereunder; and
(x) The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Mortgage Loan by BSMCC pursuant to this Agreement and/or
the Mortgage Loan Purchase Agreement or the eligibility of any Mortgage
Loan for purposes of this Agreement.
Section 9.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS. The
recitals contained herein and in the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Seller, and the Trustee shall have no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of the Certificates (other than the signature and countersignature
of the Trustee on the Certificates) or of any Mortgage Loan except as expressly
provided in Sections 2.02 and 2.06 hereof. The Trustee's signature and
countersignature (or countersignature of its agent) on the Certificates shall be
solely in its capacity as Trustee and shall not constitute the Certificates an
obligation of the Trustee in any other capacity. The Trustee shall not be
accountable for the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Seller with respect to the Mortgage Loans. Subject to the
provisions of Section 2.06, the Trustee shall not be responsible for the
legality or validity of this Agreement or any document or instrument relating to
this Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity, priority,
perfection or sufficiency of the security for the Certificates issued hereunder
or intended to be issued hereunder. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders, under this
Agreement. The Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04. TRUSTEE MAY OWN CERTIFICATES. The Trustee in its individual
capacity or in any capacity other than as Trustee hereunder may become the owner
or pledgee of any Certificates with the same rights it would have if it were not
Trustee, and may otherwise deal with the parties hereto.
Section 9.05. FEES AND EXPENSES. (a) The Trustee will be paid the Trustee's
Fees each calendar month from the Certificate Account, pursuant to Subsection
4.03(b). The Trust Fund will be liable for the Trustee's expenses, including all
reasonable out-of-pocket expenses, disbursements
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and advances incurred or made by the Trustee in the administration of the trusts
hereunder as set forth in a fee letter sent by the Trustee to the Seller
(including the reasonable compensation, expenses and disbursements of its
counsel) except any such expense, disbursement or advance as may arise from its
negligence or intentional misconduct or which is the responsibility of the
Certificateholders or the Master Servicers hereunder, and to the extent that the
funds in the Certificate Account are not sufficient to pay the Trustee's Fees.
Such compensation and reimbursement obligation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust.
(b) To the extent not otherwise indemnified against by the Master Servicer
hereunder, the Trust shall indemnify the Indemnified Persons for, and will hold
them harmless against, any loss, liability or expense incurred on their part,
arising out of, or in connection with, this Agreement and the Certificates,
including the costs and expenses (including reasonable legal fees and expenses)
of defending themselves against any such claim other than (i) any loss,
liability or expense related to such Indemnified Person's failure to perform
such Indemnified Person's duties in strict compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and (ii) any loss, liability or expense incurred by
reason of such Indemnified Person's willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. This indemnity shall survive the resignation
or removal of the Trustee and the termination of this Agreement.
Section 9.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee and any
successor Trustee shall during the entire duration of this Agreement be a state
bank or trust company or a national banking association organized and doing
business under the laws of such state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus and undivided profits of at least $40,000,000 or, in the
case of a successor Trustee, $50,000,000, subject to supervision or examination
by federal or state authority and, in the case of a successor Trustee other than
pursuant to Section 9.10, rated in one of the two highest long-term debt
categories of, or otherwise acceptable to, each of the Rating Agencies. The
Trustee shall not be an Affiliate of either Master Servicer, unless the Trustee
acts as successor Master Servicer hereunder. If the Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 9.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 9.08.
Section 9.07. INSURANCE. The Trustee, at its own expense, shall at all
times maintain and keep in full force and effect: (i) fidelity insurance, (ii)
theft of documents insurance and (iii) forgery insurance (which may be
collectively satisfied by a "Financial Institution Bond" and/or a "Bankers'
Blanket Bond"). All such insurance shall be in amounts, with standard coverage
and subject to deductibles, as are customary for insurance typically maintained
by banks which act as custodians
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for investor-owned mortgage pools. A certificate of an officer of the Trustee as
to the Trustee's compliance with this Section 9.07 shall be furnished to each
Master Servicer or any Certificateholder upon reasonable written request.
Section 9.08. RESIGNATION AND REMOVAL OF THE TRUSTEE. (a) The Trustee may
at any time resign and be discharged from the Trust hereby created by giving
written notice thereof to each Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Master Servicers shall
promptly appoint a successor Trustee by written instrument, in triplicate, one
copy of which instrument shall be delivered to each of the resigning Trustee and
the successor Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 and shall fail to resign after written
request therefor by the Master Servicers or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Master Servicers shall be entitled to remove the Trustee and appoint a successor
Trustee by written instrument, in triplicate, one copy of which instrument shall
be delivered to each of the Trustee so removed and the successor Trustee.
(c) The Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee and appoint a successor Trustee by written instrument or instruments, in
quadruplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to each of
the Master Servicers, the Trustee so removed and the successor so appointed.
(d) No resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 9.08 shall become
effective except upon appointment of and acceptance of such appointment by the
successor Trustee as provided in Section 9.09.
Section 9.09. SUCCESSOR TRUSTEE. (a) Any successor Trustee appointed as
provided in Section 9.08 shall execute, acknowledge and deliver to each Master
Servicer and to its predecessor Trustee an instrument accepting such appointment
hereunder. The resignation or removal of the predecessor Trustee shall then
become effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall after payment of its
outstanding fees and expenses promptly deliver to the successor Trustee all
assets and records of the Trust held by it hereunder, and the Master Servicers
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may
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reasonably be required for more fully and certainly vesting and confirming in
the successor Trustee all such rights, powers, duties and obligations.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.09 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.09, the successor Trustee shall mail notice of the succession of
such Trustee hereunder to all Certificateholders at their addresses as shown in
the Certificate Register and to the Rating Agencies. Each Master Servicer shall
pay its Applicable Percentage of the cost of any mailing by the successor
Trustee.
Section 9.10. MERGER OR CONSOLIDATION OF TRUSTEE. Any state bank or trust
company or national banking association into which the Trustee may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any state bank or trust
company or national banking association succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such state bank or trust company or national banking
association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9.11. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust or property constituting the same may at the time be located, the Master
Servicers and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Master Servicers to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section 9.11, such powers, duties, obligations, rights and trusts as the
Master Servicers and the Trustee may consider necessary or desirable.
(b) If a Master Servicer shall not have joined in such appointment within
15 days after the receipt by it of a written request so to do, or in case an
Event of Default with respect to a Master Servicer shall have occurred and be
continuing, the Trustee shall have the power to make such appointment without
such Master Servicer.
(c) No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Trustee under Section 9.06 hereunder and
no notice to Certificateholders of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 9.08 hereof.
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(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to a Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
(g) No trustee under this Agreement shall be personally liable by reason of
any act or omission of another trustee under this Agreement. The Master
Servicers and the Trustee acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee, except that following the
occurrence of any Event of Default which has not been cured, the Trustee acting
alone may accept the resignation of or remove any separate trustee or
co-trustee.
Section 9.12. MASTER SERVICERS SHALL PROVIDE INFORMATION AS REASONABLY
REQUIRED. The Master Servicers shall furnish to the Trustee, during the term of
this Agreement, such periodic, special, or other reports or information (and in
such electronic format or other means acceptable to the Trustee) as may
reasonably be requested by the Trustee in order to fulfill its duties and
obligations under this Agreement.
Section 9.13. FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS. (a) For Federal income tax purposes, the taxable year of
each of the Series REMICs shall be a calendar year
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and the Trustee shall maintain or cause the maintenance of the books of each of
the Series REMICs on the accrual method of accounting.
(b) The Trustee shall prepare and file or cause to be filed with the
Internal Revenue Service Federal tax information returns or elections required
to be made by the Trustee hereunder with respect to each of the Series REMICs
and the Certificates containing such information and at the times and in the
manner as may be required by the Code or applicable Treasury regulations, and
shall furnish to each Holder of Certificates at any time during the calendar
year for which such returns or reports are made such statements or information
at the times and in the manner as may be required thereby. In connection with
the foregoing, the Trustee shall provide the name and address of the person who
can be contacted to obtain information required to be reported to the holders of
regular interests in each of the Series REMICs (the "REMIC Reporting Agent") as
required by IRS Form 8811. The Trustee shall make the elections to treat each of
the Series REMICs as a REMIC (which election shall apply to the taxable period
ending December 31, 1999 and each calendar year thereafter) in such manner as
the Code or applicable Treasury regulations may prescribe. The Trustee shall
sign all tax information returns filed pursuant to this Section and any other
returns as may be required by the Code, and in doing so shall rely entirely
upon, and shall have no liability for information provided by, or calculations
provided by, the Seller or either Master Servicer. The Holder of the Class R-1
Certificate is hereby designated as the "Tax Matters Person" (within the meaning
of Treas. Reg. ss.ss. 1.860F-4(d)) for REMIC I, the Holder of the Class R-2
Certificate is hereby designated as "Tax Matters Person" for REMIC II, the
Holder of the Class R-3 Certificate is hereby designated as "Tax Matters Person"
for REMIC III, and the Holder of the Class R-4 Certificate is hereby designated
as "Tax Matters Person" for REMIC IV. The Trustee is hereby designated and
appointed as the agent of each such Tax Matters Person. Any Holder of a Residual
Certificate will by acceptance thereof appoint the Trustee as agent and
attorney-in-fact for the purpose of acting as Tax Matters Person for each of the
Series REMICs during such time as the Trustee does not own any such Residual
Certificate. In the event that the Code or applicable Treasury regulations
prohibit the Trustee from signing tax or information returns or other
statements, or the Trustee from acting as Tax Matters Person (as an agent or
otherwise), the Trustee shall take whatever action that in its sole good faith
judgment is necessary for the proper filing of such information returns or for
the provision of a tax matters person, including designation of the Holder of a
Residual Certificate to sign such returns or act as tax matters person. Each
Holder of a Residual Certificate shall be bound by this Section.
(c) The Trustee shall provide upon request such information (which shall be
provided by the Master Servicers) as required in Section 860D(a)(6)(B) of the
Code to the Internal Revenue Service, to any Person purporting to transfer a
Residual Certificate to a Person other than a transferee permitted by Section
5.05(b), and to any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate, organization described in Section
1381 of the Code, or nominee holding an interest in a pass-through entity
described in Section 860E(e)(6) of the Code, any record holder of which is not a
transferee permitted by Section 5.05(b) (or which is deemed by statute to be an
entity with a disqualified member).
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(d) The Trustee shall prepare and file or cause to be filed any state
income tax returns required under Applicable State Law with respect to each of
the Series REMICs or the Trust Fund.
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ARTICLE X
Termination
Section 10.01. TERMINATION UPON REPURCHASE BY THE SELLER OR ITS DESIGNEE OR
LIQUIDATION OF THE MORTGAGE LOANS. (a) Subject to Section 10.02, the respective
obligations and responsibilities of the Seller, the Master Servicers and the
Trustee created hereby, other than the obligation of the Trustee or the Master
Servicers to make payments to Certificateholders as hereinafter set forth and to
the Trustee, shall terminate:
(i) with respect to a Mortgage Loan Group, upon the repurchase by or
at the direction of the Seller or its designee of all Mortgage Loans in
such Mortgage Loan Group and all REO Property remaining in the Trust
relating to such Mortgage Loan Group at a price equal to (a) 100% of the
Outstanding Principal Balance of each Mortgage Loan in such Mortgage Loan
Group (other than a Mortgage Loan related to REO Property) as of the date
of repurchase, net of the principal portion of any unreimbursed Monthly
Advances made by the purchaser, together with interest at the applicable
Mortgage Interest Rate accrued but unpaid through and including the last
day of the month of repurchase, plus (b) the appraised value of any REO
Property, less the good faith estimate of the Seller of liquidation
expenses to be incurred in connection with its disposal thereof (but not
more than the Outstanding Principal Balance of the related Mortgage Loan,
together with interest at the applicable Mortgage Interest Rate accrued on
that balance but unpaid through and including the last day of the month of
repurchase), such appraisal to be calculated by an appraiser mutually
agreed upon by the Seller and the Trustee at the expense of the Seller; or
(ii) upon the later of the making of the final payment or other
liquidation, or any advance with respect thereto, of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property acquired
with respect to any such Mortgage Loan; PROVIDED, HOWEVER, that in the
event that an advance has been made, but not yet recovered, at the time of
such termination, the Person having made such advance shall be entitled to
receive, notwithstanding such termination, any payments received subsequent
thereto with respect to which such advance was made.
(b) In no event, however, shall the Trust created hereby continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date of this Agreement.
(c) The right of the Seller or its designee to repurchase all Mortgage
Loans in a Mortgage Loan Group pursuant to Subsection 10.01(a)(i) above shall be
exercisable only if (i) the aggregate Scheduled Principal Balance of the
Mortgage Loans in such Mortgage Loan Group at the time of any such repurchase is
less than 10%, 10% or 5% of the portion of the Group 1, Group 2 or Group 3
Cut-off Date Balance, respectively, allocable to such Mortgage Loan Group, or
(ii) the Seller, based upon an Opinion of Counsel, has determined that the REMIC
status of any Series REMIC has been
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lost or that a substantial risk exists that such REMIC status will be lost for
the then-current taxable year. At any time thereafter, the Seller may elect to
terminate the related REMIC at any time, and upon such election, the Seller or
its designee shall repurchase all the Mortgage Loans of the related Mortgage
Loan Group.
(d) The Trustee shall give notice of any termination to the applicable
Certificateholders, with a copy to the Rating Agencies, upon which such
Certificateholders shall surrender their Certificates to the Trustee for payment
of the final distribution and cancellation. Such notice shall be given by
letter, mailed not earlier than the 15th day and not later than the 25th day of
the month next preceding the month of such final distribution, and shall specify
(i) the Distribution Date upon which final payment of such Certificates will be
made upon presentation and surrender of such Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of such
Certificates at the office of the Trustee therein specified.
(e) If the option of the Seller to repurchase or cause the repurchase of
all Mortgage Loans in a Mortgage Loan Group under Subsection 10.01(a)(i) above
is exercised, the Seller and/or its designee shall deliver to the Trustee for
deposit in the Certificate Account, by the Business Day prior to the applicable
Distribution Date, an amount equal to the repurchase price for the Mortgage
Loans being purchased by it and all property acquired with respect to such
Mortgage Loans remaining in the applicable REMIC. Upon the presentation and
surrender of the Certificates, the Trustee shall distribute an amount equal to
(i) the amount otherwise distributable to the Certificateholders (other than the
holder of the Class or Classes of Residual Certificate corresponding to such
Mortgage Loan Group) on such Distribution Date but for such repurchase, (ii) the
Current Principal Amount and any accrued but unpaid interest at the Pass-Through
Rate to the Certificateholders of each Class, and (iii) the remainder to the
applicable Residual Certificateholder. If the relevant Group Available Funds are
not sufficient to pay all of the related Certificates in full, any such
deficiency will be allocated to the outstanding Class or Classes of Subordinate
Certificates in the related Certificate Group having the highest numerical
designation or, if after the applicable Cross-Over Date, to the Senior
Certificates of the related Certificate Group pro rata. Upon deposit of the
required repurchase price and following such final Distribution Date, the
Trustee shall release promptly to the Seller and/or its designee, as the case
may be, the Mortgage Files for the remaining applicable Mortgage Loans, and the
Accounts with respect thereto shall terminate, subject to the Trustee's
obligation to hold any amounts payable to Certificateholders in trust without
interest pending final distributions pursuant to Subsection 10.01(i).
(f) In the event that this Agreement is terminated by reason of the payment
or liquidation of all Mortgage Loans or the disposition of all property acquired
with respect to all Mortgage Loans under Subsection 10.01(a)(ii) above, each
Master Servicer shall deliver to the Trustee for deposit in the appropriate
sub-account of the Certificate Account all distributable amounts remaining in
the Protected Account, and shall cause any Sub-Servicers to, deliver to the
Trustee for deposit in the appropriate sub-account of the Certificate Account
all distributable amounts remaining in their
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Protected Accounts. Upon the presentation and surrender of the Certificates, the
Trustee shall distribute to the Certificateholders, in accordance with their
respective interests, all distributable amounts remaining in the Certificate
Account. Upon deposit by any Sub-Servicers of such distributable amounts and
delivery to the Trustee of an Officer's Certificate from each Master Servicer
certifying that such deposit has been made, and following such final
Distribution Date, the Trustee shall release promptly to the Seller or its
designee the Mortgage Files for the remaining Mortgage Loans, and the Accounts
shall terminate, subject to the Trustee's obligation to hold any amounts payable
to the Certificateholders in trust without interest pending final distributions
pursuant to Subsection 10.01(ii).
(g) If not all of the Certificateholders shall surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice, not all the Certificates shall have been
surrendered for cancellation, the Trustee may take appropriate steps, or appoint
any agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain subject to this Agreement.
Section 10.02. ADDITIONAL TERMINATION REQUIREMENTS. (a) If the option of
the Seller to repurchase all the Mortgage Loans in a Mortgage Loan Group under
Subsection 10.01(a)(i) above is exercised, the corresponding Series REMIC shall
be terminated in accordance with the following additional requirements, unless
the Trustee has been furnished with an Opinion of Counsel to the effect that the
failure of the Trust to comply with the requirements of this Section 10.02 will
not (i) result in the imposition of taxes on "prohibited transactions" as
defined in Section 860F of the Code on any Series REMIC or (ii) cause any Series
REMIC to fail to qualify as a REMIC at any time that any Regular Certificates
are outstanding:
(i) within 90 days prior to the final Distribution Date, at the
written direction of the Seller, the Trustee, as agent for the respective
Tax Matters Persons, shall adopt a plan of complete liquidation of any
Series REMIC provided to it by the Seller meeting the requirements of a
"Qualified Liquidation" under Section 860F of the Code and any regulations
thereunder.
(ii) at or after the time of adoption of such a plan of complete
liquidation of any of the Series REMICs and at or prior to the final
Distribution Date, the Trustee shall sell for cash all of the assets of the
Trust to or at the direction of the Seller; and
(iii) at the time of the making of the final payment on any such Group
of Certificates, the Trustee shall distribute or credit from the
Certificate Account (or cause to be distributed or credited) (i) to the
Certificateholders, other than the Holder of the corresponding Residual
Certificates, the Current Principal Amount of the Certificates plus 30
days' interest thereon at the applicable Pass-Through Rate, and (ii) to the
corresponding Residual Certificateholder,
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all cash on hand from the Certificate Account relating to the Mortgage Loan
Group (other than cash retained to meet claims); and the corresponding
REMIC shall terminate at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby (i) agree to adopt such a plan of complete liquidation of the relevant
REMIC upon the written request of the Seller and to take such action in
connection therewith as may be reasonably requested by the Seller and (ii)
appoint the Seller as their attorney-in-fact, with full power of substitution,
for purposes of adopting such a plan of complete liquidation. The Trustee shall
adopt such plan of liquidation by filing the appropriate statement on the final
tax return of such REMIC.
(c) At such time as each of REMIC I, REMIC II and REMIC III are terminated
either by a complete liquidation or upon final distribution of all of the assets
of REMIC I, REMIC II and REMIC III, respectively, is made, REMIC IV shall also
terminate.
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ARTICLE XI
Miscellaneous Provisions
Section 11.01. INTENT OF PARTIES. The parties intend that each of the
Series REMICs shall be treated as a REMIC for federal income tax purposes and
that the provisions of this Agreement should be construed in furtherance of this
intent.
Section 11.02. AMENDMENT. (a) This Agreement may be amended from time to
time by the Seller, the Trustee and the Master Servicers, without notice to or
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein that may be defective or inconsistent with
any other provisions herein, to comply with any changes in the Code or to make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Independent Counsel, adversely affect in any material respect the interests of
any Certificateholder.
(b) This Agreement may also be amended from time to time by the Seller, the
Trustee and the Master Servicers, with the consent of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
51% of the Trust Fund or of the applicable Class or Classes if such amendment
affects only such Class or Classes for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Certificateholders; PROVIDED,
HOWEVER, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, or (iii) cause any of the Series
REMICs to fail to qualify as a REMIC for federal income tax purposes, as
evidenced by an Opinion of Independent Counsel which shall be provided to the
Trustee other than at the Trustee's expense. Notwithstanding any other provision
of this Agreement, for purposes of the giving or withholding of consents
pursuant to Section 11.02(b), Certificates registered in the name of or held for
the benefit of the Seller, a Master Servicer, a Sub-Servicer or the Trustee or
any Affiliate thereof shall be entitled to vote their Undivided Fractional
Interests with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of such amendment or written notification of the substance of
such amendment to each Certificateholder, with a copy to the Rating Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner
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of obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary, this
Agreement may not be amended, modified or waived in any manner than would be
adverse to any interest of a Master Servicer, without such Master Servicer's
prior written consent.
Section 11.03. RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Master
Servicers shall effect such recordation, at their expense upon the request in
writing of a Certificateholder, but only if such direction is accompanied by an
Opinion of Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required by
law.
Section 11.04. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. (a) The death or
incapacity of any Certificateholder shall not terminate this Agreement or the
Trust, nor entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to establish the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholders be under
any liability to any third Person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon, under or with respect to this Agreement against the Seller, the Master
Servicers or any successor to any such parties unless (i) such Certificateholder
previously shall have given to the Trustee a written notice of a continuing
default, as herein provided, (ii) the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 51% of the Trust Fund
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs and
expenses
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and liabilities to be incurred therein or thereby, and (iii) the Trustee, for 60
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05. ACTS OF CERTIFICATEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is expressly required, to the Seller. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee and the Seller,
if made in the manner provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Certificate presented in accordance with
Section 5.04) shall be proved by the Certificate Register, and neither the
Trustee, the Seller, the Master Servicers nor any successor to any such parties
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Certificate shall bind every future holder
of the same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Trustee,
the Seller, a Master Servicer or any successor to any such party in reliance
thereon, whether or not notation of such action is made upon such Certificates.
130
<PAGE>
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Trustee, the Seller, the Master Servicers or any
Sub-Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(b) and except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which the Trustee knows
to be so owned shall be so disregarded. Certificates which have been pledged in
good faith to the Trustee, the Seller, the Master Servicer or any Sub-Servicer
or any Affiliate thereof may be regarded as outstanding if the pledgor
establishes to the satisfaction of the Trustee the pledgor's right to act with
respect to such Certificates and that the pledgor is not an Affiliate of the
Trustee, the Seller, the Master Servicer or any Sub-Servicer, as the case may
be.
Section 11.06. GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07. NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at or mailed by registered
mail, return receipt requested, postage prepaid, or by recognized overnight
courier, to (i) in the case of the Seller, Structured Assets Mortgage
Investments Inc, 245 Park Avenue, New York, New York 10167, Attention: Vice
President-Servicing (but with respect to monthly reports sent pursuant to
Section 6.05(c), Attention: Lynn Lin), or to such other address as may hereafter
be furnished to the other parties hereto in writing; (ii) in the case of CMC,
Cendant Mortgage Corporation, 6000 Atrium Way, Mt. Laurel, New Jersey 08054,
Attention: Jeff Frezza, or such other address as may hereafter be furnished to
the other parties in writing; (iii) in the case of IndyMac, 155 North Lake
Avenue, Pasadena, California 91101, Attention: Mr. Jim Banks, telecopy number
(626) 535-5899, with a copy to the attention of the General Counsel, or such
other address as may hereafter furnished to the other parties in writing, (iv)
in the case of the Trustee, Norwest Bank Minnesota, National Association, 11000
Broken Land Parkway, Columbia, Maryland 21044, ref: SAMI 1999-2 with a copy to
its Corporate Trust Office, or such other address as may hereafter be furnished
to the other parties hereto in writing; or (v) in the case of the Rating
Agencies, (vi) Standard & Poor's, a Division of The McGraw-Hill Companies, Inc.,
26 Broadway, New York, New York, 10004, Attention: Residential Mortgage
Surveillance (vii) Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Mortgage-Backed Surveillance and (viii) Duff & Phelps Credit
Rating Co., 17 State Street, New York, New York 10007, Attention: RMBS
Monitoring Group. Any notice delivered to the Seller, a Master Servicer or the
Trustee under this Agreement shall be effective only upon receipt. Any notice
required or permitted to be mailed to a Certificateholder, unless otherwise
provided herein, shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time
131
<PAGE>
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder 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 severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.09. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10. ARTICLE AND SECTION HEADINGS. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12. NOTICE TO RATING AGENCIES. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of either Master Servicer or the
Trustee;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Certificate Account.
In addition, in accordance with Section 6.04 and Section 3.16, the Trustee
and the Master Servicers, respectively, shall promptly furnish to each Rating
Agency copies of the following:
1. Each report to Certificateholders described in Section 6.04; and
132
<PAGE>
2. Each annual independent public accountants' servicing report received
as described in Section 3.16.
133
<PAGE>
IN WITNESS WHEREOF, the Seller, CMC, IndyMac and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS INC., as Seller
By: __________________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: __________________________________
Name:
Title:
CENDANT MORTGAGE CORPORATION, as a
Master Servicer
By: __________________________________
Name:
Title:
INDYMAC, INC., as a Master Servicer
By: __________________________________
Name:
Title:
Accepted and Agreed as to
Sections 2.02, 2.04 and 2.05
BEAR STEARNS MORTGAGE CAPITAL
CORPORATION
By: __________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of April 1999 before me, a notary public in and for said
State, personally appeared Mary Haggerty, known to me to be a Vice President of
Structured Asset Mortgage Investments Inc., the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________________________
Notary Public
No.
Commission Expires:
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of April 1999 before me, a notary public in and for said
State, personally appeared Baron Silverstein, known to me to be a Vice President
of Bear Stearns Mortgage Capital Corporation, the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________________________
Notary Public
No.
Commission Expires:
[Notarial Seal]
<PAGE>
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On the 30th day of April 1999 before me, a notary public in and for said
State, personally appeared Peter J, Masterman, known to me to be an Vice
President of Norwest Bank Minnesota, National Association, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________________________
Notary Public
No.
Commission Expires:
[Notarial Seal]
<PAGE>
STATE OF NEW JERSEY )
) ss.:
COUNTY OF BURLINGTON )
On the 30th day of April 1999 before me, a notary public in and for said
State, personally appeared _______________, known to me to be a ______________
of Cendant Mortgage Corporation, the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________________________
Notary Public
Commission Expires:
[Notarial Seal]
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURY )
On the 30th day of April 1999 before me, a notary public in and for said
State, personally appeared Barbara Perez, known to me to be a First Vice
President of IndyMac, Inc., the corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________________________
Notary Public
Commission Expires:
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF SENIOR CERTIFICATE
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").]
[THIS CERTIFICATE REPRESENTS FOUR SEPARATE COMPONENTS, AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT. SOLELY FOR U.S. FEDERAL INCOME TAX
PURPOSES, EACH COMPONENT OF THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL
ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").]
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT
OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS APRIL 30, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT [250%] [100%] OF THE [STANDARD] PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE, THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $[_______] OF OID PER $1,000 OF INITIAL CURRENT
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS [______]% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $[_____] PER $1,000
OF INITIAL CURRENT PRINCIPAL
A-1-1
<PAGE>
AMOUNT, COMPUTED USING THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH
RATE.]
A-1-2
<PAGE>
Certificate No. __ _______% Pass-Through Rate
Class ____ Senior
Date of Pooling and Servicing Aggregate Initial Current Principal
Agreement and Cut-off Date: Amount of this Certificate as of the
April 1, 1999 Cut-off Date: $____________
First Distribution Date: Initial Current Principal Amount of
May 25, 1999 this Certificate as of the Cut-off
Date: $_____________
Master Servicers: CUSIP______ __ __
Cendant Mortgage Corporation and
IndyMac, Inc.
Assumed Final Distribution Date:
[May] [April] 25, 2029
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1999-2
evidencing a percentage interest in the distributions allocable
to the Class ___ Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate mortgage loans sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments Inc., the Master Servicers or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments Inc., the Master Servicers or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments Inc., the Master Servicers or any of their affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of twenty to thirty year, first lien, fixed rate mortgages
secured by one- to four- family residences, units in planned unit developments
and individual condominium units and cooperative units (collectively, the
"Mortgage Loans") sold by Structured Asset Mortgage Investments Inc. ("SAMI").
The Mortgage Loans were sold by Bear Stearns Mortgage Capital Corporation
("BSMCC") to SAMI. Cendant Mortgage Corporation ("Cendant") and IndyMac, Inc.
("IndyMac") will act as master servicers of the Mortgage Loans (the "Master
Servicers," which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among SAMI, as seller (the "Seller"), Norwest
A-1-3
<PAGE>
Bank Minnesota, National Association, as trustee (the "Trustee") and Cendant and
IndyMac, as master servicers (the "Master Servicers"), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above. The Trustee will distribute on the 25th day of each month,
or, if such 25th day is not a Business Day, the immediately following Business
Day (each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day (or if such last day is not a
Business Day, the Business Day immediately preceding such last day) of the
calendar month preceding the month of such Distribution Date, an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount (of interest and principal, if any) required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the first anniversary of the Distribution Date immediately
following the latest scheduled maturity date of any Mortgage Loan and is not
likely to be the date on which the Current Principal Amount of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose and designated in such notice. The Initial
Current Principal Amount of this Certificate is set forth above. The Current
Principal Amount hereof will be reduced to the extent of distributions allocable
to principal hereon and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
twenty-eight Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
A-1-4
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement from time to
time by the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66- 2/3%
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Percentage Interests thereof). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable with the
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee for such purposes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Percentage Interest will be issued
to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Seller, the Master Servicers, the Trustee and any agent of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of Seller, the Master Servicers, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
A-1-5
<PAGE>
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-1-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ___________________ NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Not in its individual capacity but solely as
Trustee
By:__________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class ____ Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Authorized signatory of Norwest Bank
Minnesota, National Association, not in its
individual capacity but solely as Trustee
By:________________________________________
Authorized Signatory
A-1-7
<PAGE>
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address: _____________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: _________________________________________________________
Signature by or on behalf of assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of _______________________________ account number __________, or, if mailed by
check, to _________________________________________. Applicable statements
should be mailed to ___________________________________________.
This information is provided by ______________________, the assignee
named above, or ____________________________, as its agent.
A-1-8
<PAGE>
EXHIBIT A-2
FORM OF CLASS 3-X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED TO THE
EXTENT OF PRINCIPAL DISTRIBUTIONS ON THE NON- DISCOUNT MORTGAGE LOANS AND
REALIZED LOSSES ALLOCATED HERETO. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM
THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS APRIL 30, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT 250% OF THE STANDARD PREPAYMENT ASSUMPTION (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT), AND ASSUMING A CONSTANT PASS-THROUGH
RATE EQUAL TO THE INITIAL PASS-THROUGH RATE, THIS CERTIFICATE HAS BEEN ISSUED
WITH NO MORE THAN $[_______] OF OID PER $1,000 OF INITIAL CURRENT PRINCIPAL
AMOUNT, THE YIELD TO MATURITY IS [______]% AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $[_____] PER $1,000 OF INITIAL
CURRENT PRINCIPAL AMOUNT, COMPUTED USING THE APPROXIMATE METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY
OF THE PASS-THROUGH RATE.
A-2-1
<PAGE>
Certificate No. ____ Variable Pass-Through Rate
Class 3-X Senior
Date of Pooling and Servicing Initial Notional Amount of this
Agreement and Cut-off Date: Certificate: $_______________
April 1, 1999
First Distribution Date:
May 25, 1999
Master Servicers: CUSIP _______
Cendant Mortgage Corporation and
IndyMac, Inc.
Assumed Final Distribution Date:
May 25, 2029
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1999-2
evidencing a percentage interest in the distributions allocable
to the Class 3-X Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate mortgage loans sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments Inc., the Master Servicers or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments Inc., the Master Servicers or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments Inc., the Master Servicers or any of their affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of twenty to thirty year, first lien, fixed rate mortgages
secured by one- to four- family residences, units in planned unit developments
and individual condominium units and cooperative units (collectively, the
"Mortgage Loans") sold by Structured Asset Mortgage Investments Inc. ("SAMI").
The Mortgage Loans were sold by Bear Stearns Mortgage Capital Corporation
("BSMCC") to SAMI. Cendant Mortgage Corporation ("Cendant") and IndyMac Inc.
("IndyMac") will act as master servicers of the Mortgage Loans (the "Master
Servicers," which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among SAMI, as seller (the "Seller"), Norwest Bank Minnesota,
National Association, as trustee (the "Trustee") and Cendant and IndyMac, as
A-2-2
<PAGE>
master servicers (the "Master Servicers"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Notional Amount (equal to the aggregate Stated Principal Balance of the
Non-Discount Mortgage Loans) at a variable Pass-Through Rate equal to the Pool
Strip Rates of the Non-Discount Mortgage Loans. The Trustee will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day (or
if such last day is not a Business Day, the Business Day immediately preceding
such last day) of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount (of interest, if any) required to be distributed
to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Notional Amount of this Class
of Certificates will be reduced to zero. The Initial Notional Amount of this
Certificate is set forth above. The Notional Amount hereof will be reduced to
the extent of distributions allocable to principal on the Non-Discount Mortgage
Loans and any Realized Losses allocable hereto.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose and designated in such notice.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
twenty-eight Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
A-2-3
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement from time to
time by the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66- 2/3%
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Percentage Interests thereof). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable with the
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee for such purposes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Percentage Interest will be issued
to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Seller, the Master Servicers, the Trustee and any agent of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of Seller, the Master Servicers, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
A-2-4
<PAGE>
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ________________ NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Not in its individual capacity but solely as
Trustee
By:__________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class 3-X Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Authorized signatory of Norwest Bank
Minnesota, National Association, not in its
individual capacity but solely as Trustee
By:________________________________________
Authorized Signatory
A-2-6
<PAGE>
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _________________________________(Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:_____________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated: _________________________________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________ for the account
of _______________________________ account number __________, or, if mailed by
check, to _________________________________________. Applicable statements
should be mailed to _____________________________________________.
This information is provided by ______________________, the assignee
named above, or ____________________________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON, A PUBLICLY TRADED PARTNERSHIP OR A DISQUALIFIED ORGANIZATION (AS
DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE AND THE SERVICING,
MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN
ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED
TRANSACTION EXEMPTION ("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60, PTE 96-23
OR SECTION 401(C) OF ERISA AND THE REGULATIONS TO BE PROMULGATED THEREUNDER AND
(II) WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE
MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF
A BOOK-ENTRY CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION OR AN OPINION
OF COUNSEL TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A DEFINITIVE
CERTIFICATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY 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, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE, (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE
A-3-1
<PAGE>
SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
A-3-2
<PAGE>
Certificate No. __ [_____%] [Variable] Pass-Through Rate
Class R-__ Senior
Date of Pooling and Servicing Aggregate Initial Current Principal
Agreement and Cut-off Date: Amount of this Certificate as of the
April 1, 1999 Cut-off Date: $____
First Distribution Date: Initial Current Principal Amount of
May 25, 1999 this Certificate as of the Cut-off
Date: $_____
Master Servicers:
Cendant Mortgage Corporation and
IndyMac, Inc.
Assumed Final Distribution Date: CUSIP ___________
[May] [April] 25, 2029
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1999-2
evidencing a percentage interest in the distributions allocable
to the Class R-__ Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate mortgage loans sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments Inc., the Master Servicers or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments Inc., the Master Servicers or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments Inc., the Master Servicers or any of their affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that ________________________ is the registered owner
of the Percentage Interest evidenced hereby in the beneficial ownership interest
of Certificates of the same Class as this Certificate in a trust (the "Trust
Fund") generally consisting of twenty to thirty year, first lien, fixed rate
mortgages secured by one- to four- family residences, units in planned unit
developments and individual condominium units and cooperative units
(collectively, the "Mortgage Loans") sold by Structured Asset Mortgage
Investments Inc. ("SAMI"). The Mortgage Loans were sold by Bear Stearns Mortgage
Capital Corporation ("BSMCC") to SAMI. Cendant Mortgage Corporation ("Cendant")
and IndyMac Inc. ("IndyMac") will act as master servicers of the Mortgage Loans
(the "Master Servicers," which term includes any successors thereto under the
Agreement
A-3-3
<PAGE>
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among SAMI, as seller (the "Seller"), Norwest Bank Minnesota,
National Association, as trustee (the "Trustee") and Cendant and IndyMac, as
master servicers (the "Master Servicers"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above. The Trustee will distribute on the 25th day of each month,
or, if such 25th day is not a Business Day, the immediately following Business
Day (each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day (or if such last day is not a
Business Day, the Business Day immediately preceding such last day) of the
calendar month preceding the month of such Distribution Date, an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount (interest and principal, if any) required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the first anniversary of the Distribution Date immediately
following the latest scheduled maturity date of any Mortgage Loan and is not
likely to be the date on which the Current Principal Amount of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose and designated in such notice. The Initial Current Principal Amount of
this Certificate is set forth above. The Current Principal Amount hereof will be
reduced to the extent of distributions allocable to principal hereon and any
Realized Losses allocable hereto.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Seller will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Seller, or any affiliate of the Seller, on such terms and conditions as the
Seller may choose.
A-3-4
<PAGE>
This Certificate may not be acquired directly or indirectly by, or on
behalf of, an employee benefit plan or other retirement arrangement which is
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended, and/or section 4975 of the Internal Revenue Code of 1986, as amended,
unless the proposed transfer and/or holding of a Certificate and the servicing,
management and/or operation of the trust and its assets: (i) will not result in
any prohibited transaction which is not covered under an individual or class
prohibited transaction exemption, including, but not limited to, Prohibited
Transaction Exemption ("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60, PTE 96-23
or Section 401(c) of ERISA and the regulations promulgated thereunder and (ii)
will not give rise to any additional fiduciary duties on the part of the Seller,
the Master Servicer or the Trustee, which will be deemed represented by an owner
of a Book-Entry Certificate and will be evidenced by a representation or an
Opinion of Counsel to such effect by or on behalf of a Holder of a Definitive
Certificate.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
twenty-eight Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement from time to
time by the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66- 2/3%
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Percentage Interests thereof). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable with the
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee for such purposes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Percentage Interest will be issued
to the designated transferee.
A-3-5
<PAGE>
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Seller, the Master Servicers, the Trustee and any agent of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Seller, the Master Servicers, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _________________ NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Not in its individual capacity but solely as
Trustee
By:__________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class R-__ Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Authorized signatory of Norwest Bank
Minnesota, National Association, not in its
individual capacity but solely as Trustee
By:________________________________________
Authorized Signatory
A-3-7
<PAGE>
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________(Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:______________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: _____________________________________________________
Signature by or on behalf of assignor
____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________ for the account of
_______________________________ account number __________, or, if mailed by
check, to _________________________________________. Applicable statements
should be mailed to __________________________________________________.
This information is provided by ______________________, the assignee
named above, or ____________________________, as its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON AND ANY REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFER AND/OR HOLDING OF A CERTIFICATE AND THE SERVICING,
MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN
ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED
TRANSACTION EXEMPTION ("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60, PTE 96-23
OR SECTION 401(C) OF ERISA AND THE REGULATIONS TO BE PROMULGATED THEREUNDER AND
(II) WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE
MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF
A BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A CLASS B-__
CERTIFICATE.
A-4-1
<PAGE>
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS APRIL 30, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT [250%][100%] OF THE [STANDARD] PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE, THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $[_______] OF OID PER $1,000 OF INITIAL CURRENT
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS [______]% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $[_____] PER $1,000
OF INITIAL CURRENT PRINCIPAL AMOUNT, COMPUTED USING THE APPROXIMATE METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY
OF THE PASS-THROUGH RATE.]
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.]
A-4-2
<PAGE>
Certificate No. __ [________%] [Variable] Pass-Through Rate
Class B-__
Date of Pooling and Servicing Aggregate Initial Current Principal
Agreement and Cut-off Date: Amount of this Certificate as of the
April 1, 1999 Cut-off Date: $____________
First Distribution Date: Initial Current Principal Amount of this
May 25, 1999 Certificate as of the Cut-off Date:
$___________
Master Servicers: CUSIP ______ __ __
Cendant Mortgage Corporation and
IndyMac, Inc.
Assumed Final Distribution Date:
May 25, 2029
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1999-2
evidencing a percentage interest in the distributions allocable
to the Class B-__ Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate mortgage loans sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Structured Asset Mortgage
Investments Inc., the Master Servicers or the Trustee referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity
or by Structured Asset Mortgage Investments Inc., the Master Servicers or the
Trustee or any of their affiliates or any other person. None of Structured Asset
Mortgage Investments Inc., the Master Servicers or any of their affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of twenty to thirty year, first lien, fixed rate mortgages
secured by one- to four- family residences, units in planned unit developments
and individual condominium units and cooperative units (collectively, the
"Mortgage Loans") sold by Structured Asset Mortgage Investments Inc. ("SAMI").
The Mortgage Loans were sold by Bear Stearns Mortgage Capital Corporation
("BSMCC") to SAMI. Cendant Mortgage Corporation ("Cendant") and IndyMac, Inc.
("IndyMac") will act as master servicers of the Mortgage Loans (the "Master
Servicers," which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among SAMI, as seller (the "Seller"), Norwest
A-4-3
<PAGE>
Bank Minnesota, National Association, as trustee (the "Trustee") and Cendant and
IndyMac, as master servicers (the "Master Servicers"), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate set forth above. The Trustee will distribute on the 25th day of each month,
or, if such 25th day is not a Business Day, the immediately following Business
Day (each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day (or if such last day is not a
Business Day, the Business Day immediately preceding such last day) of the
calendar month preceding the month of such Distribution Date, an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount (of interest and principal, if any) required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the first anniversary of the Distribution Date immediately
following the latest scheduled maturity date of any Mortgage Loan and is not
likely to be the date on which the Current Principal Amount of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose and designated in such notice. The Initial
Current Principal Amount of this Certificate is set forth above. The Current
Principal Amount hereof will be reduced to the extent of distributions allocable
to principal hereon and any Realized Losses allocable hereto.
[No transfer of this Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, (i) the
Trustee or the Seller may require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee and the Seller that such transfer
is exempt (describing the applicable exemption and the basis therefor) from or
is being made pursuant to the registration requirements of the Securities Act of
1933, as amended, and of any applicable statute of any state and (ii) the
transferee shall execute an investment letter in the form described by the
Agreement. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee, the Seller, the Master Servicer and the
Certificate Registrar acting on behalf of the Trustee against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such Federal and state laws.]
This Certificate may not be acquired directly or indirectly by, or on
behalf of, an employee benefit plan or other retirement arrangement which is
subject to Title I of the Employee
A-4-4
<PAGE>
Retirement Income Security Act of 1974, as amended, and/or section 4975 of the
Internal Revenue Code of 1986, as amended, unless the proposed transfer and/or
holding of a Certificate and the servicing, management and/or operation of the
trust and its assets: (i) will not result in any prohibited transaction which is
not covered under an individual or class prohibited transaction exemption,
including, but not limited to, Prohibited Transaction Exemption ("PTE") 84-14,
PTE 91-38, PTE 90-1, PTE 95-60, PTE 96-23 or Section 401(c) of ERISA and the
regulations promulgated thereunder and (ii) will not give rise to any additional
fiduciary duties on the part of the Seller, the Master Servicer or the Trustee,
which will be deemed represented by an owner of a Book-Entry Certificate and
will be evidenced by a representation or an Opinion of Counsel to such effect by
or on behalf of a Holder of a Definitive Certificate.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
twenty-eight Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Agreement from time to
time by the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66- 2/3%
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Percentage Interests thereof). Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable with the
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee for such purposes, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Trustee duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Percentage Interest will be issued
to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new
A-4-5
<PAGE>
Certificates evidencing the same Class and in the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Seller, the Master Servicers, the Trustee and any agent of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Seller, the Master Servicers, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the earlier of
(i) the later of the (A) final payment or other liquidation (or Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust Fund in accordance with
the terms of the Agreement. Such optional repurchase may be made only on or
after the Distribution Date on which the aggregate unpaid principal balance of
the Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-4-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ________________ NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Not in its individual capacity but solely as
Trustee
By:__________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class B-__ Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Authorized signatory of Norwest Bank
Minnesota, National Association, not in its
individual capacity but solely as Trustee
By:________________________________________
Authorized Signatory
A-4-7
<PAGE>
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _________________________________(Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address: _____________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: _____________________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ___________________________ for the account of
_______________________________ account number __________, or, if mailed by
check, to _________________________________________. Applicable statements
should be mailed to ________________________________________________________.
This information is provided by ______________________, the assignee
named above, or ____________________________, as its agent.
A-4-8
<PAGE>
EXHIBIT B-1
GROUP 1 MORTGAGE LOAN SCHEDULE
B-1-1
<PAGE>
EXHIBIT B-2
GROUP 2 MORTGAGE LOAN SCHEDULE
B-2-1
<PAGE>
EXHIBIT B-3
GROUP 3 MORTGAGE LOAN SCHEDULE
B-3-1
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF BSMCC
CONCERNING THE MORTGAGE LOANS
(a) The information set forth in the Mortgage Loan Schedule is true,
complete and correct in all material respects as of the Cut-Off Date;
(b) The Mortgage Loan has not been delinquent thirty (30) days or more
at any time during the 12 months preceding the Cut-Off Date. As of the Closing
Date, the Mortgage Loan is not delinquent in payment more than 30 days and has
not been dishonored; there are no defaults under the terms of the Mortgage Loan;
and the Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the Mortgaged
Property subject to the Mortgage, directly or indirectly, for the payment of any
amount required by the Mortgage Loan;
(c) There are no delinquent taxes, ground rents, assessments,
maintenance charges for Cooperative Loans or other outstanding charges affecting
the related Mortgaged Property;
(d) The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(e) The Mortgage has not been satisfied, canceled or subordinated, in
whole or in part, or rescinded, and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, except with respect to
certain releases in part that do not materially affect the value of the
Mortgaged Property, nor has any instrument been executed that would effect any
such satisfaction, release, cancellation, subordination or rescission;
(f) Immediately prior to the transfer and assignment to the Purchaser,
the Mortgage Note and the Mortgage were not subject to an assignment or pledge,
and the Seller had good and marketable title to and was the sole owner thereof
and had full right to transfer and sell the Mortgage Loan to the Purchaser free
and clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest;
(g) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the related Mortgage Note and no event, which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event permitting
acceleration; and neither the Seller nor any prior mortgagee has waived any
default, breach, violation or event permitting acceleration;
(h) There are no mechanics', or similar liens or claims which have
been filed for work, labor or material affecting the related Mortgaged Property
which are or may be liens prior to or equal to the lien of the related Mortgage;
C-1
<PAGE>
(i) All improvements subject to the Mortgage lie wholly within the
boundaries and building restriction lines of the Mortgaged Property (and wholly
within the project with respect to a condominium unit) except for DE MINIMUS
encroachments permitted by the Fannie Mae Guide (MBS Special Servicing Option)
and which has been noted on the appraisal, and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by a title insurance policy and all improvements on the property comply
with all applicable zoning and subdivision laws and ordinances;
(j) At origination, the Mortgaged Property or Cooperative Unit was
free of damage and waste, and currently is free of damage and waste, or any such
damage and waste is adequately covered by an insurance policy, and there was and
currently is no proceeding pending for the total or partial condemnation
thereof;
(k) The original Loan-to-Value Ratio of each Mortgage Loan either was
not more than 95.00% or the excess over 80.00% is insured as to payments
defaults by a Primary Mortgage Insurance Policy issued by a primary mortgage
insurer acceptable to Fannie Mae and Freddie Mac until the Loan-to-Value Ratio
of such Mortgage Loan is reduced to 80.00%;
(l) (i) With respect to each Mortgage Loan other than a Cooperative
Loan, the Mortgage creates a first lien or a first priority ownership interest
in an estate in fee simple in real property securing the related Mortgage Note,
free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording which are
acceptable to mortgage lending institutions generally and either (A) which are
referred to or otherwise considered in the appraisal made for the originator of
Mortgage Loan, or (B) which do not adversely affect the appraised value of the
Mortgaged Property as set forth in such appraisal, and (3) other matters to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related Mortgaged Property; and
(ii) with respect to each Cooperative Loan, the related loan documents create a
first priority interest on the property securing the related Mortgage Note, free
and clear of all adverse claims, liens and encumbrances having priority over the
first lien of the Mortgage, subject only to (a) the lien of the related
Cooperative housing corporation for unpaid assessments, (b) the related
Proprietary Lease being subordinated or otherwise subject to the mortgage on the
related Cooperative building, and (c) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property;
(m) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by applicable law, and copies of which written instruments are included
in the Mortgage File. No other instrument of waiver, alteration or modification
has been executed, and no Mortgage has been released, in whole or in part, from
the terms thereof except in connection with an assumption agreement, which
assumption agreement is part of the Mortgage File and the terms of which are
reflected in the Mortgage Loan Schedule;
C-2
<PAGE>
(n) Except in the case of Cooperative Loans, all buildings upon the
Mortgaged Property are insured by a generally acceptable insurer pursuant to
standard hazard policies conforming to the requirements of the Pooling and
Servicing Agreement. All such standard hazard policies are in effect and on the
date of origination contained a standard mortgagee clause naming the originator
and its successors in interest as loss payee and such clause is still in effect
and all premiums due thereon have been paid. If the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the Flood Disaster Protection Act of 1973, as
amended, such Mortgaged Property is covered by flood insurance in an amount not
less than that set forth in the Pooling and Servicing Agreement. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor;
(o) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan have been complied with in all material
respects;
(p) The Mortgage is a valid, subsisting and enforceable (subject to
the exceptions set forth in clause (l) above) first lien on the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any other security interest or other interest or
right thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject only to
permitted encumbrances set forth in clause (l)(1), (2) and (3) herein. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein;
(q) The Mortgage Note and the related Mortgage are original and
genuine (including in the case of a Cooperative Loan, the Cooperative Shares,
the Proprietary Lease and the Recognition Agreement) and each is the legal,
valid and binding obligation of the maker thereof, enforceable in all respects
in accordance with its terms subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors, and the Seller has taken
all action necessary to transfer such rights of enforceability to the Purchaser.
All parties to the Mortgage Note and the Mortgage had the legal capacity to
enter into the Mortgage Loan and to execute and deliver the Mortgage Note and
the Mortgage, and with respect to a Cooperative Loan, the related Proprietary
Lease and Recognition Agreement. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. The proceeds of the Mortgage Loan
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds therefor have
been complied with;
C-3
<PAGE>
(r) Except in the case of Cooperative Loans, the Mortgage Loan is
covered by an ALTA lender's title insurance policy or other generally acceptable
form of policy of insurance, issued by a title insurer qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring (subject
to the exceptions contained in (l)(1), (2) and (3) above) the originator, CMC or
IndyMac, as applicable, and their respective successors and assigns, as to the
first priority lien of the Mortgage in the original principal amount of the
Mortgage Loan. The originator, CMC or IndyMac, as applicable, is the sole
insured of such lender's title insurance policy, such lender's title insurance
policy is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by the Pooling and Servicing
Agreement and this Agreement and will inure to the benefit of the Purchaser and
its assigns without any further act. No claims have been made under such
lender's title insurance policy, and no prior holder of the related Mortgage has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy;
(s) Each Mortgage Loan was originated by or for CMC or IndyMac. Each
Mortgage Loan complies in all material respects with all the terms, conditions
and requirements of CMC's or IndyMac's underwriting standards in effect at the
time of originations of such Mortgage Loan; provided, that certain Mortgage
Loans may have characteristics outside of such underwriting guidelines where
compensating factors are present acceptable to the mortgage banking industry.
The Mortgage Notes and Mortgages are on uniform Fannie Mae/Freddie Mac
instruments or are on forms acceptable to Fannie Mae or Freddie Mac. The
Mortgage Loan bears interest at a fixed rate as set forth in the Mortgage Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable on
the first day of each month. The Mortgage Loan contains the usual and
enforceable provisions of the originator at the time of origination for the
acceleration of the payment of the unpaid principal amount if the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(t) The related Mortgage contains enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (1) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (2) otherwise by judicial foreclosure. There is
no homestead or other exemption available to the Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage;
(u) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustees sale or attempted sale after
default by the Mortgagor;
(v) The Mortgage File contains an appraisal of the related Mortgaged
Property made and signed prior to the final approval of the mortgage loan
application by a Qualified Appraiser, approved by CMC, IndyMac or the originator
thereof, as the case may be. The appraisal is in a form generally acceptable to
Fannie Mae or Freddie Mac;
C-4
<PAGE>
(w) The related Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above;
(x) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of such mortgage loans;
(y) Each Mortgage Loan has an original term to stated maturity of not
less than 15 years and not more than 30 years and, in each case, with interest
payable in arrears on the first day of each month. No Mortgage Loan contains
terms or provisions which would result in negative amortization;
(z) Each of the Mortgaged Properties consists of a single parcel of
real property with a detached single-family residence erected thereon, or a two-
to four-family dwelling, or a townhouse, or a Cooperative Unit, an individual
condominium unit in a condominium project or an individual unit in a planned
unit development. Any condominium unit or planned unit development either
conforms with applicable Fannie Mae or Freddie Mac requirements regarding such
dwellings or is covering by a waiver confirming that such condominium unit or
planned unit development is acceptable to Fannie Mae or Freddie Mac, or conforms
with IndyMac Guidelines. No such residence is a mobile home or manufactured
dwelling. Each Mortgaged Property is lawfully occupied under applicable law. For
Cooperative Loans, each of the Mortgaged Properties consists of shares of stock
in a cooperative housing corporation and a leasehold interest in a cooperative
apartment owned by such corporation located in the State identified in the
Mortgage Loan Schedule;
(aa) The Mortgage Loans were originated with full, alternative or
reduced documentation;
(bb) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) The originator is either, and each Mortgage Loan was originated
by, (i) a savings and loan association, savings bank, commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or State authority, (ii) a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 and 211 of the National
Housing Act or (iii) a mortgage banker or broker licensed or authorized to do
business in the jurisdiction in which the related Mortgaged Property is located,
applying the same standards and procedures used by the applicable seller in
originating Mortgage Loans directly;
(dd) With respect to each Cooperative Loan, as of the closing of such
Cooperative Loan, BSMCC, IndyMac or CMC obtained evidence that, if the
Cooperative Building is in a federally designated flood area, a flood insurance
policy has been obtained in an amount equal to at least that required by
applicable law, which insurance the Cooperative is obligated to maintain at the
Cooperative's cost and expense;
(ee) With respect to each Cooperative Loan, as of the Closing Date,
such Cooperative Loan is secured by shares held by a "tenant-stockholder" of a
corporation that qualifies as a "cooperative housing corporation" as such terms
are defined in Section 216 (b) (1) of the
C-5
<PAGE>
Internal Revenue Code of 1986, as amended, and to the best of BSMCC's, IndyMac's
or CMC's knowledge, no Cooperative is subject to proceedings which would, if
adversely determined, result in such Cooperative losing its status as a
"cooperative housing corporation" under Section 216 (b) (1) of the Internal
Revenue Code of 1986, as amended; and
(ff) With respect to each Cooperative Loan, the related loan documents
create a first-priority security interest in the stock in the Cooperative and
the Proprietary Lease of the related Cooperative Unit which were pledged to
secure such Cooperative Loan, and the Cooperative owns the Cooperative building
as an estate in fee simple in real property or pursuant to a leasehold
acceptable to IndyMac Guidelines.
C-6
<PAGE>
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: Norwest Bank Minnesota, National Association,
as Trustee
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-1026
RE: Pooling and Servicing Agreement dated as of April 1, 1999, among
Structured Asset Mortgage Investments Inc., Cendant Mortgage
Corporation and IndyMac, Inc., as Master Servicers and Norwest Bank
Minnesota, National Association, as Trustee, regarding Structured
Asset Mortgage Investments Trust 1999-2, Mortgage Pass-Through
Certificates, Series 1999-2
----------------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by
you, as Trustee, pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
- --------------------
Mortgagor Name, Address & Zip Code:
- ----------------------------------
Reason For Requesting Documents (check one):
- -------------------------------
______ 1. Mortgage Paid in Full and proceeds have been deposited into the
Custodial Account
______ 2. Foreclosure
______ 3. Substitution
______ 4. Other Liquidation
______ 5. Nonliquidation
______ 6. Other Reason: ______________________
By:_________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
Date:_______________________________
D-1
<PAGE>
Trustee
- -------
Norwest Bank Minnesota, National Association
Please acknowledge the execution of the above request by your signature and date
below:
____________________________ ________________
Signature Date
Documents returned to Trustee:
____________________________ ________________
Trustee Date
Date: ______________
__________________________
[NAME OF MASTER SERVICER]
By: ____________________________
Name:
Title:
D-2
<PAGE>
EXHIBIT E
FORM OF AFFIDAVIT PURSUANT TO SECTION 860E(E)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND FOR OTHER PURPOSES
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of__________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Structured Asset Mortgage
Investments Trust 1999-2, Mortgage Pass-Through Certificates, Series 1999-2,
[Class R-1] [Class R-2] [Class R-3] [Class R-4] Certificates (the "Residual
Certificates") for the account of a disqualified organization; (iii) it consents
to any amendment of the Pooling and Servicing Agreement that shall be deemed
necessary by Structured Asset Mortgage Investments Inc. (upon advice of counsel)
to constitute a reasonable arrangement to ensure that the Residual Certificates
will not be owned directly or indirectly by a disqualified organization; and
(iv) it will not transfer such Residual Certificates unless (a) it has received
from the transferee an affidavit in substantially the same form as this
affidavit containing these same four representations and (b) as of the time of
the transfer, it does not have actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
taxable as such created or organized in or under the laws of the United States
or any political subdivision thereof or (iii) an estate that is subject to U.S.
federal income tax regardless of the source of its income, or (iv) a trust other
than a "foreign trust," as defined in Section 7701(a)(31) of the Code.
4. That the Investor's taxpayer identification number is ___________.
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
E-1
<PAGE>
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _____________, 19__.
[NAME OF INVESTOR]
By:____________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of distributions]
Address of Investor for receipt of tax information:
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he
executed the same as his/her free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of _______, 19__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of __________ , 19 __ .
E-2
<PAGE>
EXHIBIT F-1
FORM OF INVESTMENT LETTER
[Date]
[SELLER]
Norwest Bank Minnesota, National Association, as Trustee
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-1026
Structured Asset Mortgage Investments Inc.
245 Park Avenue
New York, New York 10167
Re: Structured Asset Mortgage Investments Trust 1999-2, Mortgage
Pass-Through Certificates, Series 1999-2 (the "Certificates"),
including the Class B-4, Class B-5, Class B-6-P, Class B-6-X,
Class 3-B-4, Class 3-B-5 and Class 3-B-6 Certificates (the
"Privately Offered Certificates")
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered Certificates
are not being registered under the Securities Act of
1933, as amended (the "Act") or any applicable state
securities or "Blue Sky" laws, and are being sold to us
in a transaction that is exempt from the registration
requirements of such laws;
(ii) any information we desired concerning the Certificates,
including the Privately Offered Certificates, the trust
in which the Certificates represent the entire
beneficial ownership interest (the "Trust") or any
other matter we deemed relevant to our decision to
purchase Privately Offered Certificates has been made
available to us;
(iii) we are able to bear the economic risk of investment in
Privately Offered Certificates; we are an institutional
"accredited investor" as defined in Section 501(a) of
Regulation D promulgated under the Act and a
sophisticated institutional investor;
F-1-1
<PAGE>
(iv) we are acquiring Privately Offered Certificates for our
own account, not as nominee for any other person, and
not with a present view to any distribution or other
disposition of the Privately Offered Certificates;
(v) we agree the Privately Offered Certificates must be
held indefinitely by us (and may not be sold, pledged,
hypothecated or in any way disposed of) unless
subsequently registered under the Act and any
applicable state securities or "Blue Sky" laws or an
exemption from the registration requirements of the Act
and any applicable state securities or "Blue Sky" laws
is available;
(vi) we agree that in the event that at some future time we
wish to dispose of or exchange any of the Privately
Offered Certificates (such disposition or exchange not
being currently foreseen or contemplated), we will not
transfer or exchange any of the Privately Offered
Certificates unless:
(A) (1) the sale is to an Eligible Purchaser (as
defined below), (2) if required by the Pooling and
Servicing Agreement (as defined below) a letter to
substantially the same effect as either this letter or,
if the Eligible Purchaser is a Qualified Institutional
Buyer as defined under Rule 144A of the Act, the Rule
144A and Related Matters Certificate in the form
attached to the Pooling and Servicing Agreement (as
defined below) (or such other documentation as may be
acceptable to the Trustee) is executed promptly by the
purchaser and delivered to the addressees hereof and
(3) all offers or solicitations in connection with the
sale, whether directly or through any agent acting on
our behalf, are limited only to Eligible Purchasers and
are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if the Privately Offered Certificate is not
registered under the Act (as to which we acknowledge
you have no obligation), the Privately Offered
Certificate is sold in a transaction that does not
require registration under the Act and any applicable
state securities or "blue sky" laws and, if Norwest
Bank Minnesota, National Association (the "Trustee") so
requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel
shall be an expense of the transferor or the
transferee;
(vii) we agree to be bound by all of the terms (including
those relating to restrictions on transfer) of the
Pooling and Servicing, pursuant to which the Trust was
formed; we have reviewed carefully and understand the
terms of the Pooling and Servicing Agreement;
(viii) we either: (i) are not acquiring the Privately Offered
Certificate directly or indirectly by, or on behalf of,
an employee benefit plan or other retirement
arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended,
and/or section 4975 of the Internal Revenue Code of
1986, as amended, or (ii) are providing as such other
evidence acceptable to the Trustee to the effect that
the proposed transfer
F-1-2
<PAGE>
and/or holding of a Privately Offered Certificate and
the servicing, management and/or operation of the Trust
and its assets: (I) will not result in any prohibited
transaction which is not covered under an individual or
class prohibited transaction exemption, including, but
not limited to, Prohibited Transaction Exemption
("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60 or PTE
96-23 and (II) will not give rise to any additional
fiduciary duties on the part of either Master Servicer
or the Trustee.
(ix) We understand that each of the Privately Offered
Certificates bears, and will continue to bear, a legend
to substantiate the following effect: "THIS CERTIFICATE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT
OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED
FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN
THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7)
OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE
TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF
SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED
DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFER
F-1-3
<PAGE>
AND/OR HOLDING OF A CERTIFICATE AND THE SERVICING,
MANAGEMENT AND/OR OPERATION OF THE TRUST AND ITS
ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR
CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT
NOT LIMITED TO, PROHIBITED TRANSACTION EXEMPTION
("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60 OR PTE
96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL
FIDUCIARY DUTIES ON THE PART OF EITHER MASTER SERVICER
OR THE TRUSTEE," WHICH WILL BE DEEMED REPRESENTED BY AN
OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION
TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A PRIVATE
CERTIFICATE."
"ELIGIBLE PURCHASER" means a corporation, partnership or other entity
which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement dated as of April 1, 1999 among
Structured Asset Mortgage Investments Inc., Cendant Mortgage Corporation and
IndyMac, Inc., as Master Servicers and Norwest Bank Minnesota, National
Association, as Trustee (the "Pooling and Servicing Agreement").
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any):___________________
F-1-4
<PAGE>
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________________
(Authorized Officer)
[By:__________________________________
Attorney-in-fact]
F-1-5
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:__________________________________
(Authorized Officer)
[By:__________________________________
Attorney-in-fact]
F-1-6
<PAGE>
EXHIBIT F-2
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[SELLER]
Norwest Bank Minnesota, National Association, as Trustee
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479-1026
Structured Asset Mortgage Investments Inc.
245 Park Avenue
New York, New York 10167
Re: Structured Asset Mortgage Investments Trust 1999-2, Mortgage
Pass-Through Certificates, Series 1999-2, Class B-4, Class B-5,
Class B-6-P, Class B-6-X, Class 3-B-4, Class 3-B-5 and Class 3-B-6
Certificates (the "Privately Offered Certificates")
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, the
undersigned certifies to each of the parties to whom this letter is addressed
that it is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Act")) as follows:
1. It owned and/or invested on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to a
repurchase agreement and swaps), as described below:
Date: _____________, 19__ (must be on or after the close of its most recent
fiscal year)
Amount: $_________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the following
entities:
(1) / / an insurance company as defined in Section 2(13) of the
Act; or1
(2) / / an investment company registered under the Investment
Company Act or any business development company as defined
in Section 2(a)(48) of the Investment Company Act of 1940;
or
________________________
1 A purchase by an insurance company for one or more of its separate
accounts, as defined by Section 2(a)(37) of the Investment Company Act of
1940, which are neither registered nor required to be registered
thereunder, shall be deemed to be a purchase for the account of such
insurance company.
F-2-1
<PAGE>
(3) / / a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958; or
(4) / / a plan (i) established and maintained by a state, its
political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, the laws of
which permit the purchase of securities of this type, for
the benefit of its employees and (ii) the governing
investment guidelines of which permit the purchase of
securities of this type; or
(5) / / a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or
(6) / / a corporation (other than a U.S. bank, savings and loan
association or equivalent foreign institution),
partnership, Massachusetts or similar business trust, or
an organization described in Section 501(c)(3) of the
Internal Revenue Code; or
(7) / / a U.S. bank, savings and loan association or equivalent
foreign institution, which has an audited net worth of at
least $25 million as demonstrated in its latest annual
financial statements; or
(8) / / an investment adviser registered under the Investment
Advisers Act; or
b. / / greater than $10 million, and the undersigned is a
broker-dealer registered with the SEC; or
c. / / less than $10 million, and the undersigned is a
broker-dealer registered with the SEC and will only purchase Rule
144A securities in transactions in which it acts as a riskless
principal (as defined in Rule 144A); or
d. / / less than $100 million, and the undersigned is an
investment company registered under the Investment Company Act of
1940, which, together with one or more registered investment
companies having the same or an affiliated investment adviser,
owns at least $100 million of eligible securities; or
e. / / less than $100 million, and the undersigned is an entity,
all the equity owners of which are qualified institutional buyers.
The undersigned further certifies that it is purchasing a Privately
Offered Certificate for its own account or for the account of others that
independently qualify as "Qualified Institutional Buyers" as defined in Rule
144A. It is aware that the sale of the Privately Offered Certificates is being
made in reliance on its continued compliance with Rule 144A. It is aware that
the transferor may rely on the exemption from the provisions of Section 5 of the
Act provided by Rule 144A. The undersigned understands that the Privately
Offered Certificates may be resold, pledged or transferred only to (i) a person
reasonably believed to be a Qualified Institutional Buyer that purchases for its
own account or for the account of a Qualified Institutional Buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance in Rule
144A, or (ii) an institutional "accredited
F-2-2
<PAGE>
investor," as such term is defined under Rule 501 of the Act in a transaction
that otherwise does not constitute a public offering.
The undersigned agrees that if at some future time it wishes to
dispose of or exchange any of the Privately Offered Certificates, it will not
transfer or exchange any of the Privately Offered Certificates to a Qualified
Institutional Buyer without first obtaining a Rule 144A and Related Matters
Certificate in the form hereof from the transferee and delivering such
certificate to the addressees hereof. Prior to making any transfer of Privately
Offered Certificates, if the proposed Transferee is an institutional "accredited
investor," the transferor shall obtain from the transferee and deliver to the
addressees hereof an Investment Letter in the form attached to the Pooling and
Servicing Agreement dated as of April 1, 1999 among Structured Asset Mortgage
Investments Inc., Cendant Mortgage Corporation as Master Servicer and Norwest
Bank Minnesota, National Association as Trustee, pursuant to which the
Certificates were issued.
The undersigned certifies that it either: (i) is not acquiring the
Privately Offered Certificate directly or indirectly by, or on behalf of, an
employee benefit plan or other retirement arrangement which is subject to Title
I of the Employee Retirement Income Security Act of 1974, as amended, and/or
section 4975 of the Internal Revenue Code of 1986, as amended, or (ii) is
providing such other evidence acceptable to the Trustee to the effect that the
proposed transfer and/or holding of a Privately Offered Certificate and the
servicing, management and/or operation of the Trust and its assets: (I) will not
result in any prohibited transaction which is not covered under an individual or
class prohibited transaction exemption, including, but not limited to,
Prohibited Transaction Exemption ("PTE") 84-14, PTE 91-38, PTE 90-1, PTE 95-60
or PTE 96-23 and (II) will not give rise to any additional fiduciary duties on
the part of either Master Servicer or the Trustee.
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
F-2-3
<PAGE>
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:________________________________
(Authorized Officer)
[By:________________________________
Attorney-in-fact]
F-2-4
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By: _________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
F-2-5
<PAGE>
EXHIBIT G
FORM OF INITIAL CERTIFICATION
Date:_______________________
Cendant Mortgage Corporation, as Master Servicer
6000 Atrium Way
Mt. Laurel, New Jersey 08054
IndyMac, Inc., as Master Servicer
155 North Lake Avenue
Pasadena, California 91101
Structured Asset Mortgage Investments Inc.
245 Park Avenue
New York, New York 10167
Re: Pooling and Servicing Agreement dated as of April 1, 1999, among
Structured Asset Mortgage Investments Inc., as seller, Cendant
Mortgage Corporation and IndyMac, Inc., as master servicers and
Norwest Bank Minnesota, National Association, as trustee, regarding
Structured Asset Mortgage Investments Trust 1999-2, Mortgage
Pass-Through Certificates, Series 1999-2
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that it has
received a Mortgage File (which contains an original Mortgage Note or Lost Note
Affidavit) to the extent required in Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:__________________________________
Name:
Title:
G-1
<PAGE>
EXHIBIT H
FORM OF FINAL CERTIFICATION
Date:________________________
Cendant Mortgage Corporation, as Master Servicer
6000 Atrium Way
Mt. Laurel, New Jersey 08054
IndyMac, Inc., as Master Servicer
155 North Lake Avenue
Pasadena, California 91101
Structured Asset Mortgage Investments Inc.
245 Park Avenue
New York, New York 10167
Re: Pooling and Servicing Agreement dated as of April 1, 1999, among Structured
Asset Mortgage Investments Inc., as seller, Cendant Mortgage Corporation
and IndyMac, Inc., as master servicers and Norwest Bank Minnesota, National
Association, as trustee, regarding Structured Asset Mortgage Investments
Trust 1999-2, Mortgage Pass-Through Certificates, Series 1999-2
--------------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, hereby certifies that, except as noted on the
Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addenda, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
H-1
<PAGE>
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:__________________________________
Name:
Title:
H-2
<PAGE>
EXHIBIT I
Planned Principal Amounts and Targeted Principal Amounts
Class 1-A-1 Class 1-A- 2 Class 1-A-3
INITIAL BALANCE......... $6,199,000.00 $11,539,000.(0 $28,519,000.00
May, 1999 .............. 6,199,000.00 11,539,000.00 28,519,000.00
June, 1999.............. 6,199,000.00 11,539,000.00 28,519,000.00
July, 1999 ............. 6,199,000.00 11,539,000.00 28,519,000.00
August, 1999 ........... 6,199,000.00 11,539,000.00 28,519,000.00
September, 1999 ........ 6,199,000.00 11,539,000.00 28,519,000.00
October, 1999 .......... 6,199,000.00 11,539,000.00 28,519,000.00
November, 1999 ......... 6,199,000.00 11,539,000.00 28,519,000.00
December, 1999 ......... 6,199,000.00 11,539,000.00 28,519,000.00
January, 2000 .......... 6,199,000.00 11,539,000.00 28,519,000.00
February, 2000 ......... 6,199,000.00 11,539,000.00 28,519,000.00
March, 2000 ............ 6,199,000.00 11,539,000.00 28,519,000.00
April, 2000............. 6,199,000.00 11,539,000.00 28,519,000.00
May, 2000 .............. 6,199,000.00 11,539,000.00 28,519,000.00
June, 2000 ............. 6,199,000.00 11,539,000.00 28,519,000.00
July, 2000 ............. 6,199,000.00 11,539,000.00 28,519,000.00
August, 2000 ........... 6,199,000.00 11,539,000.00 28,519,000.00
September, 2000 ........ 6,199,000.00 11,539,000.00 28,519,000.00
October, 2000 .......... 6,199,000.00 11,539,000.00 28,519,000.00
November, 2000 ......... 6,199,000.00 11,539,000.00 29,519,000.00
December, 2000 ......... 6,199,000.00 11,539,000.00 28,519,000.00
January, 2001 .......... 6,199,000.00 11,539,000.00 28,519,000.00
February, 2001 ......... 6,199,000.00 11,539,000.00 28,519,000.00
March. 2001 ............ 6,199,000.00 11,539,000.00 28,519,000.00
April, 2001 ............ 6,199,000.00 11,539,000.00 28,519,000.00
May, 2001 .............. 5,310,541.49 11,539,000.00 28,519,000.00
June, 2001 ............. 4,394,141.84 11,539,000.00 28,519,000.00
July, 2001 ............. 3,453,975.21 11,539,000.00 28,519,000.00
August, 2001 ........... 2,490,562.18 11,539,000.00 28,519,000.00
September, 2001 ........ 1,526,151.41 11,539,000.00 28,519,000.00
October, 2001 .......... 568,126.03 11,539,000.00 28,519,000.00
November, 2001 ......... 0.00 11,155,445.02 28,519,000.00
December, 2001 ......... 0.00 10,210,067.64 28,519,000.00
January, 2002 .......... 0.00 9,270,953.40 28,519,000.00
February, 2002 ......... 0.00 9,338,062.08 28,519,000.00
March, 2002 ............ 0.00 7,411,353.73 28,519,000.00
April, 2002 ............ 0.00 6,490,788.67 28,519,000.00
May, 2002 .............. 0.00 5,576,327.44 28,519,000.00
June, 2002 ............. 0.00 4,667,930.89 28,519,000.00
July, 2002 ............. 0.00 3,765,560.07 28,519,000.00
August, 2002 ........... 0.00 2,869,176.33 28,519,000.00
September, 2002 ........ 0.00 1,978,741.26 28,519,000.00
October, 2002 .......... 0.00 1,094,216.70 28,519,000.00
November, 2002 ......... 0.00 215,564.73 28,519,000.00
December, 2002 ......... 0.00 0.00 27,861,747.69
January, 2003 .......... 0.00 0.00 26,994,728.16
February, 2003 ......... 0.00 0.00 26,133,468.96
March, 2003 ............ 0.00 0.00 25,277,933.17
April. 2003 ............ 0.00 0.00 24,428,084.09
May, 2003 .............. 0.00 0.00 23,583,885.29
June, 2003 ............. 0.00 0.00 22,745,300.55
I-1
<PAGE>
<TABLE>
<CAPTION>
Class 1-A-4 Class 1-A-6 Class 1-A-7 Class 1-A-5-II
<S> <C> <C> <C> <C>
INITIAL BALANCE......... $56,000,000.00 $3,579,403.00 $927,993.00 $32,735,504.00
May, 1999 .............. 55,529,956.97 3,570,915.87 925,792.63 32,919,641.21
June, 1999 ............. 54,996,677.45 3,562,381.00 923,579.89 33,104,814.19
July, 1999 ............. 54,400,386.16 3,553,798.12 921,354.70 33,291,028.77
August, 1999 ........... 53,741,286.75 3,545,166.96 919,116.99 33,478,290.81
September, 1999......... 53,019,662.10 3,536,487.25 916,866.70 33,666,606.19
October, 1999 .......... 52,235,874.35 3,527.758.72 914,603.75 33,855,980.85
November, 1999 ......... 51,390,364.81 3,518,981.09 912,328.07 34,046,420.75
December, 1999 ......... 50,483,653.68 3,510,154.09 910,039.59 34,237,931.86
January, 2000 .......... 49,516,339.61 3,501,277.43 907,738.24 34,430,520.23
February, 2000 ......... 48,489,099.11 3,492,350.84 905,423.94 34,624,191.91
March, 2000 ............ 47,402,685.76 3,483,374.04 903,096.62 34,818,952.99
April 2000 ............. 46,257,929.24 3,474,346.74 900,756.21 35,014,809.60
May, 2000 .............. 45,055,734.27 3,465,268.66 898,402.64 35,211,767.90
June, 2000 ............. 43,797,079.24 3,456,139.52 896,035.83 35,409,834.09
July, 2000 ............. 42,483,014.84 3,446,959.03 893,655.70 35,609,014.41
August, 2000 ........... 41,114,662.43 3,437,726.90 891,262.19 35,809,315.12
September, 2000 ........ 39,693,212.25 3,428,442.84 888,855.21 36,010,742.51
October, 2000 .......... 38,219,921.47 3,419,106.56 886,434.69 36,213,302.94
November, 2000 ......... 36,696,112.16 3,409,717.76 884,000.56 36,417,002.77
December, 2000 ......... 35,123,169.01 3,400,276.15 881,552.74 36,621,848.41
January, 2001 .......... 33,502,536.97 3,390,781.43 879,091.15 36,827,846.31
February, 2001 ......... 31,835,718.75 3,381,233.30 876,615.71 37,035,002.94
March, 2001 ............ 30,124,272.17 3,371,631.46 874,126.35 37,243,324.84
April, 2001 ............ 28,369,807.33 3,361,975.61 871,622.98 37,452,818.54
May, 2001 .............. 27,462,442.28 3,352,265.44 869,105.53 37,663,490.64
June, 2001 ............. 26,543,365.62 3,342,500.65 866,573.92 37,875,347.78
July, 2001 ............. 25,610,152.146 3,332,680.94 864,028.07 38,088,396.61
August, 2001 ........... 24,664,071.56 3,322,805.99 861,467.90 38,302,643.84
September, 2001 ........ 23,727,040.46 3,312,875.50 858,893.33 38,518,096.21
October, 2001 .......... 22,806,073.13 3,302,889.15 856,304.28 38,734,760.50
November, 2001 ......... 21,900,879.38 3,292,846.63 853,700.66 38,952,643.53
December, 2001.......... 21,011,173.13 3,282,747.62 851,082.40 39,171,752.15
January, 2002........... 20,136,672.36 3,272,591.80 848,449.41 39,392,093.26
February, 2002 ......... 19,277,099.05 3,262,378.85 845,801.61 39,613,673.78
March, 2002 ............ 18,432,179.10 3,252,108.46 843,138.92 39,836,500.69
April, 2002............. 17,601,642.31 3,241,780.30 840,461.25 40,060,581.01
May, 2002 .............. 16,785,222.32 3,231,394.04 837,768.52 40,285,921.78
June, 2002 ............. 15,982,656.50 3,220,949.36 835,060.64 40,512,530.09
July, 2002 ............. 15,193,685.99 3,210,445.92 832,337.53 40,740,413.07
August, 2002 ........... 14,418,055.58 3,199,883.40 829,599.10 40,969,577.89
September, 2002 ........ 13,655,513.65 3,189,261.47 826,845.27 41,200,031.77
October, 2002 .......... 12,905,812.16 3,178,579.79 824,075.95 41,431,781.95
November, 2002 ......... 12,168,706.61 3,167,838.02 821,291.05 41,664,835.72
December, 2002 ......... 11,443,955.93 3,157,035.83 818,490.48 41,899,200.42
January, 2003 .......... 10,731,322.47 3,146,172.88 815,674.16 42,134,883.43
February, 2003 ......... 10,030,571.95 3,135,248.83 812,842.00 42,371,892.15
March, 2003 ............ 9,341,473.39 3,124,263.33 809,993.91 42,610,234.04
April, 2003 ............ 8,663,799.10 3,113,216.04 807,129.80 42,849,916.61
May, 2003 .............. 7,997,324.61 3,102,106.60 804,249.58 43,090,947.39
June, 2003 ............. 7,341,828.61 3,090,934.68 801,353.16 43,333,333.97
</TABLE>
I-2
<PAGE>
Class 1-A-1 Class 1-A-2 Class 1-A-3
July, 2003.............. $ 0.00 $ 0.00 $21,912,293.90
August, 2003............ 0.00 0.00 21,084,829.59
September, 2003......... 0.00 0.00 20,262,872.13
October, 2003........... 0.00 0.00 19,446,386.25
November, 2003 ......... 0.00 0.00 18,635,336.91
December, 2003 ......... 0.00 0.00 17,829,689.30
January, 2004 .......... 0.00 0.00 17,029,408.84
February, 2004 ......... 0.00 0.00 16,234,461.17
March, 2004............. 0.00 0.00 15,444,812.16
April, 2004 ............ 0.00 0.00 14,660,427.90
May, 2004 .............. 0.00 0.00 13,926,292.40
June, 2004 ............. 0.00 0.00 13,197,271.50
July, 2004. ............ 0.00 0.00 12,473,332.08
August, 2004 ........... 0.00 0.00 11,754,441.25
September, 2004 ........ 0.00 0.00 11,040,566.35
October, 2004........... 0.00 0.00 10,331,674.89
November, 2004.......... 0.00 0.00 9,638,692.15
December, 2004.......... 0.00 0.00 8,971,007.08
January, 2005........... 0.00 0.00 8,327,832.98
February, 2005.......... 0.00 0.00 7,708,407.19
March, 2005............. 0.00 0.00 7,111,990.37
April, 2005............. 0.00 0.00 6,537,865.80
May, 2005............... 0.00 0.00 6,040,858.65
June, 2005.............. 0.00 0.00 5,563,436.64
July, 2005.............. 0.00 0.00 5,104,963.74
August, 2005............ 0.00 0.00 4,664,823.65
September, 2005......... 0.00 0.00 4,242,419.17
October, 2005........... 0.00 0.00 3,837,171.65
November, 2005.......... 0.00 0.00 3,448,520.45
December, 2005.......... 0.00 0.00 3,075,922.37
January, 2006........... 0.00 0.00 2,718,851.15
February, 2006.......... 0.00 0.00 2,376,796.94
March, 2006............. 0.00 0.00 2,049,265.86
April, 2006............. 0.00 0.00 1,735,779.45
May, 2006............... 0.00 0.00 1,525,698.07
June, 2006.............. 0.00 0.00 1,325,514.78
July, 2006.............. 0.00 0.00 1,134,864.61
August, 2006............ 0.00 0.00 953,394.71
September, 2006......... 0.00 0.00 780,764.03
October 2006............ 0.00 0.00 616,642.90
November, 2006.......... 0.00 0.00 460,712.70
December, 2006.......... 0.00 0.00 312,665.49
January, 2007........... 0.00 0.00 172,203.68
February, 2007.......... 0.00 0.00 39,039.71
March, 2007............. 0.00 0.00 0.00
April, 2007............. 0.00 0.00 0.00
May, 2007............... 0.00 0.00 0.00
June, 2007.............. 0.00 0.00 0.00
July, 2007.............. 0.00 0.00 0.00
August, 2007............ 0.00 0.00 0.00
September, 2007......... 0.00 0.00 0.00
I-3
<PAGE>
<TABLE>
<CAPTION>
Class 1-A-4 Class 1-A-6 Class 1-A-7 Class 1-A-5-II
<S> <C> <C> <C> <C>
July, 2003.............. $6,697,092.93 $3,1079,699.91 $ 798,440.44 $ 43,577,083.97
August, 2003 ........... 6,062,902.50 3,068,401.95 795,511.34 43,822,205.07
September, 2003......... 5,439,045.27 3,057,040.43 792,565.76 44,068,704.97
October, 2003 .......... 4,825,312.18 3,045,615.01 789,603.62 44,316,591.43
November, 2003 ......... 4,221,497.15 3,034,125.32 786,624.81 44,565,872.26
December, 2003 ......... 3,627,397.00 3,022,571.00 783,629.25 44,816,555.29
January, 2004 .......... 3,042,811.42 3,010,951.68 780,616.84 45,068,648.42
February, 2004 ......... 2,467,542.92 2,999,267.01 777,587.48 45,322,159.56
March, 2004 ............ 1,901,396.82 2,987,516.61 774,541.08 45,577,096.71
April, 2004 ............ 1,344,181.18 2,975,700.12 771,477.55 45,833,467.88
May, 2004 .............. 770,871.68 2,963,817.16 768,396.78 46,091,281.14
June, 2004 ............. 206,067.45 2,951,867.36 765,298.68 46,350,544.59
July, 2004 ............. 0.00 2,939,850.34 762,183.16 46,260,851.04
August, 2004............ 0.00 2,927,765.72 759,050.11 45,974,696.69
September, 2004 ........ 0.00 2,915,613.13 755,899.44 45,697,978.49
October, 2004 .......... 0.00 2,903,392.18 752,731.05 45,430,528.51
November, 2004 ......... 0.00 2,891,102.49 749,544.83 45,161,223.84
December, 2004 ......... 0.00 2,878,743.67 746,340.69 44,880,480.56
January, 2005 .......... 0.00 2,866,315.33 743,118.53 44,588,893.09
February, 2005 ......... 0.00 2,853,817.08 739,878.24 44,287,034.41
March, 2005 ............ 0.00 2,841,248.53 736,619.73 43,975,456.80
April, 2005 ............ 0.00 2,828,609.28 733,342.89 43,654,692.46
May, 2005 .............. 0.00 2,815,898.93 730,047.62 43,276,042.66
June, 2005 ............. 0.00 2,803,117.09 726,733.81 42,890,475.04
July, 2005 ............. 0.00 2,790,263.35 723,401.36 42,498,449.09
August, 2005 ........... 0.00 2,777,337.31 720,050.16 42,100,407.00
September, 2005 ........ 0.00 2,764,338.56 716,680.11 41,696,774.25
October, 2005 .......... 0.00 2,751,266.69 713,291.11 41,287,960.10
November, 2005 ......... 0.00 2,738,121.29 709,883.04 40,874,358.16
December, 2005 ......... 0.00 2,724,901.95 706,455.80 40,456,346.84
January, 2006 .......... 0.00 2,711,608.25 703,009.29 40,034,289.90
February, 2006 ......... 0.00 2,698,239.77 699,543.39 39,608,536.92
March, 2006 ............ 0.00 2,684,796.09 696,057.99 39,179,423.70
April, 2006 ............ 0.00 2,671,276.79 692,552.99 38,747,272.78
May, 2006 .............. 0.00 2,657,681.45 689,028.27 38,234,193.74
June, 2006 ............. 0.00 2,644,009.63 685,483.73 37,721,727.01
July, 2006 ............. 0.00 2,630,260.91 681,919.25 37,210,089.97
August, 2006 ........... 0.00 2,616,434.85 678,334.72 36,699,489.91
September, 2006 ........ 0.00 2,602,531.02 674,730.02 36,190,124.33
October, 2006........... 0.00 2,588,548.98 671,105.05 35,682,181.33
November, 2006 ......... 0.00 2,574,488.29 667,459.69 35,175,839.91
December, 2006 ......... 0.00 2,560,348.51 663,793.82 34,671,270.31
January, 2007 .......... 0.00 2,546,129.20 660,107.33 34,168,634.31
February, 2007 ......... 0.00 2,531,829.90 656,400.11 33,668,085.56
March, 2007 ............ 0.00 2,517,450.17 652,672.03 33,082,665.56
April, 2007 ............ 0.00 2,502,989.55 648,922.98 32,467,328.62
May, 2007 .............. 0.00 2,488,447.59 645,152.84 31,871,335.61
June, 2007 ............. 0.00 2,473,823.83 641,361.50 31,283,981.52
July, 2007 ............. 0.00 2,459,117.81 637,548.83 30,705,144.86
August, 2007 ........... 0.00 2,444,329.07 633,714.71 30,134,705.79
September, 2007 ........ 0.00 2,429,457.15 629,859.03 29,572,546.13
</TABLE>
I-4
<PAGE>
Class 1-A-1 Class 1-A-2 Class 1-A-3
----------- ----------- -----------
October, 2007 .......... $0.00 $0.00 $0.00
November, 2007 ......... 0.00 0.00 0.00
December, 2007 ......... 0.00 0.00 0.00
January, 2008 .......... 0.00 0.00 0.00
February, 2008 ......... 0.00 0.00 0.00
March, 2008 ............ 0.00 0.00 0.00
April, 2008 ............ 0.00 0.00 0.00
May, 2008 .............. 0.00 0.00 0.00
June, 2008 ............. 0.00 0.00 0.00
July, 2008 ............. 0.00 0.00 0.00
August, 2008 ........... 0.00 0.00 0.00
September, 2008 ........ 0.00 0.00 0.00
October, 2008 .......... 0.00 0.00 0.00
November, 2008 ........ 0.00 0.00 0.00
December, 2008 ........ 0.00 0.00 0.00
January, 2009 ......... 0.00 0.00 0.00
February, 2009 ........ 0.00 0.00 0.00
March, 2009 ........... 0.00 0.00 0.00
April, 2009 ........... 0.00 0.00 0.00
May, 2009 ............. 0.00 0.00 0.00
June, 2009 ............ 0.00 0.00 0.00
July, 2009 ............ 0.00 0.00 0.00
August, 2009 .......... 0.00 0.00 0.00
September, 2009 ....... 0.00 0.00 0.00
October, 2009 ......... 0.00 0.00 0.00
November, 2009 ........ 0.00 0.00 0.00
December, 2009 ........ 0.00 0.00 0.00
January, 2010 ......... 0.00 0.00 0.00
February, 2010 ........ 0.00 0.00 0.00
March, 2010 ........... 0.00 0.00 0.00
April, 2010 ........... 0.00 0.00 0.00
May, 2010 ............. 0.00 0.00 0.00
June,2010 ............. 0.00 0.00 0.00
July, 2010 ............ 0.00 0.00 0.00
August, 2010 .......... 0.00 0.00 0.00
September, 2010 ....... 0.00 0.00 0.00
October, 2010 ......... 0.00 0.00 0.00
November, 2010 ........ 0.00 0.00 0.00
December, 2010 ........ 0.00 0.00 0.00
January, 2011 ......... 0.00 0.00 0.00
February, 2011 ........ 0.00 0.00 0.00
March, 2011 ........... 0.00 0.00 0.00
April, 2011 ........... 0.00 0.00 0.00
May, 2011 ............. 0.00 0.00 0.00
June, 2011 ............ 0.00 0.00 0.00
July, 2011 ............ 0.00 0.00 0.00
August, 2011 .......... 0.00 0.00 0.00
September, 2011 ....... 0.00 0.00 0.00
October, 2011 ......... 0.00 0.00 0.00
November, 2011 ........ 0.00 0.00 0.00
December, 2011 ........ 0.00 0.00 0.00
I-5
<PAGE>
<TABLE>
<CAPTION>
Class 1-A-4 Class 1-A-6 Class 1-A-7 Class 1-A-5-II
----------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
October, 2007........... $0.00 $2,414,501.57 $625,981.66 $29,018,549.35
November, 2007 ......... 0.00 2,399,461.87 622,082.48 28,472,600.53
December, 2007 ......... 0.00 2,384,337.57 618,161.37 27,934,586.34
January, 2008 .......... 0.00 2,369,128.19 614,218.20 27,404,395.01
February, 2008 ......... 0.00 2,353,833.26 610,252.85 26,881,916.32
March, 2008 ............ 0.00 2,338,452.30 606,265.19 26,367,041.58
April, 2008 ............ 0.00 2,322,984.82 602,255.10 25,859,663.60
May, 2008 .............. 0.00 2,307,430.33 598,222.46 25,368,580.45
June,2008 .............. 0.00 2,291,788.35 594,167.13 24,884,536.78
July, 2008 ............. 0.00 2,276,058.38 590,088.99 24,407,434.58
August, 2008 ........... 0.00 2,260,239.93 585,987.91 23,937,177.20
September, 2008 ........ 0.00 2,244,332.50 581,863.76 23,473,669.32
October, 2008 .......... 0.00 2,228,335.60 577,716.42 23,016,816.94
November, 2008 ......... 0.00 2,212,248.71 573,545.75 22,566,527.32
December, 2008 ......... 0.00 2,196,071.33 569,351.62 22,122,709.01
January, 2009 .......... 0.00 2,179,802.96 565,133.90 21,685,271.81
February, 2009 ......... 0.00 2,163,443.08 560,892.45 21,254,126.75
March, 2009 ............ 0.00 2,146,991.17 556,627.14 20,829,186.09
April, 2009 ............ 0.00 2,130,446.72 552,337.84 20,410,363.29
May, 2009 .............. 0.00 2,113,809.21 548,024.41 19,997,573.01
June,2009 .............. 0.00 2,097,078.11 543,686.72 19,590,731.05
July, 2009 ............. 0.00 2,080,252.90 539,324.63 19,189,754.41
August, 2009 ........... 0.00 2,063,333.05 534,938.00 18,794,561.18
September, 2009 ........ 0.00 2,046,318.02 530,526.70 18,405,070.62
October, 2009 .......... 0.00 2,029,207.28 526,090.58 18,021,203.07
November, 2009 ......... 0.00 2,012,000.30 521,629.51 17,642,879.98
December, 2009 ......... 0.00 1,994,696.53 517,143.35 17,270,023.86
January, 2010 .......... 0.00 1,977,295.42 512,631.95 16,902,558.30
February, 2010 ......... 0.00 1,959,796.43 508,095.18 16,540,407.94
March, 2010 ............ 0.00 1,942,199.01 503,532.89 16,183,498.45
April, 2010 ............ 0.00 1,924,502.60 498,944.93 15,831,756.52
May, 2010 .............. 0.00 1,906,706.65 494,331.17 15,485,109.84
June, 2010 ............. 0.00 1,888,810.60 489,691.46 15,143,487.13
July, 2010 ............. 0.00 1,870,813.88 485,025.65 14,806,818.04
August, 2010 ........... 0.00 1,852,715.93 480,333.59 14,475,033.21
September, 2010 ........ 0.00 1,834,516.18 475,615.14 14,148,064.24
October, 2010 .......... 0.00 1,816,214.06 470,870.15 13,825,843.67
November, 2010 ......... 0.00 1,797,808.99 466,098.47 13,508,304.97
December, 2010 ......... 0.00 1,779,300.39 461,299.95 13,195,382.50
January, 2011........... 0.00 1,760,687.68 456,474.43 12,887,011.55
February, 2011.......... 0.00 1,741,970.27 451,621.77 12,583,128.29
March, 2011............. 0.00 1,723,147.58 446,741.81 12,283,669.78
April, 2011............. 0.00 1,704,219.01 441,834.40 11,988,573.93
May, 2011............... 0.00 1,685,183.97 436,899.39 11,697,779.51
June, 2011.............. 0.00 1,666,041.86 431,936.62 11,411,226.13
July, 2011.............. 0.00 1,646,792.07 426,945.94 11,128,854.25
August, 2011............ 0.00 1,627,434.00 421,927.18 10,850,605.12
September, 2011......... 0.00 1,607,967.04 416,890.19 10,576,420.82
October, 2011........... 0.00 1,588,390.58 411,804.81 10,306,244.23
November, 2011.......... 0.00 1,568,704.00 406,700.88 10,040,019.00
December, 2011.......... 0.00 1,548,906.69 401,568.24 9,777,689.58
</TABLE>
I-6
<PAGE>
Class 1-A-1 Class 1-A-2 Class 1-A-3
----------- ----------- -----------
January, 2012 .................. $0.00 $0.00 $0.00
February, 2012 ................. 0.00 0.00 0.00
March 2012 .................... 0.00 0.00 0.00
April, 2012 ................... 0.00 0.00 0.00
May, 2012 ..................... 0.00 0.00 0.00
June, 2012 .................... 0.00 0.00 0.00
July, 2012 .................... 0.00 0.00 0.00
August, 2012 .................. 0.00 0.00 0.00
September, 2012 ............... 0.00 0.00 0.00
October, 2012 ................. 0.00 0.00 0.00
November, 2012 ................ 0.00 0.00 0.00
December, 2012 ................ 0.00 0.00 0.00
January, 2013 ................. 0.00 0.00 0.00
February, 2013 ................ 0.00 0.00 0.00
March, 2013 ................... 0.00 0.00 0.00
April, 2013 ................... 0.00 0.00 0.00
May, 2013 ..................... 0.00 0.00 0.00
June, 2013 .................... 0.00 0.00 0.00
July, 2013 .................... 0.00 0.00 0.00
August, 2013 .................. 0.00 0.00 0.00
September, 2013 ............... 0.00 0.00 0.00
October, 2013 ................. 0.00 0.00 0.00
November, 20B ................. 0.00 0.00 0.00
December, 2013 ................ 0.00 0.00 0.00
January, 2014 ................. 0.00 0.00 0.00
February, 2014 ................ 0.00 0.00 0.00
March, 2014 ................... 0.00 0.00 0.00
April, 2014 ................... 0.00 0.00 0.00
May, 2014 ..................... 0.00 0.00 0.00
June, 2014 .................... 0.00 0.00 0.00
July, 2014 ..................... 0.00 0.00 0.00
August, 2014 .................. 0.00 0.00 0.00
September, 2014 ............... 0.00 0.00 0.00
October, 2014 ................. 0.00 0.00 0.00
November, 2014 ................ 0.00 0.00 0.00
December, 2014 ................ 0.00 0.00 0.00
January, 2015 ................. 0.00 0.00 0.00
February, 2015 ................ 0.00 0.00 0.00
March, 2015 ................... 0.00 0.00 0.00
April, 2015 ................... 0.00 0.00 0.00
May, 2015 ..................... 0.00 0.00 0.00
June, 2015 .................... 0.00 0.00 0.00
July, 2015 .................... 0.00 0.00 0.00
August, 2015 .................. 0.00 0.00 0.00
September, 2015 ............... 0.00 0.00 0.00
October, 2015 ................. 0.00 0.00 0.00
November, 2015 ................ 0.00 0.00 0.00
December, 2015 ................ 0.00 0.00 0.00
January, 2016 ................. 0.00 0.00 0.00
February, 2016 ................ 0.00 0.00 0.00
March, 2016 ................... 0.00 0.00 0.00
April, 2016 .................... 0 0 0
May, 2016 ...................... 0 0.00 0.00
June, 2016 ..................... 0 0.00 0.00
July, 2016...................... 0 0.00 0.00
August, 2016 ................... 0 0.00 0.00
September, 2016 ................ 0 0.00 0.00
October, 2016 and thereafter ... 0 0 0
I-7
<PAGE>
<TABLE>
<CAPTION>
Class 1-A-4 Class 1-A-6 Class 1-A-7 Class 1-A-5-II
----------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
January, 2012 $0.00 $1,528,998.02 $396,406.73 $9,519,201.16
February, 2012 0.00 1,508,977.36 391,216.19 9,264,499.70
March, 2012 0.00 1,488,844.08 3859.45 9,013,531.90
April, 2012 0.00 1,468,597.55 380,747.35 8,766,245.20
May, 2012 0.00 1,448,237.14 375,468.73 8,522,587.76
June, 2012 0.00 1,427,762.20 370,160.41 8,282,508.46
July, 2012 0.00 1,407,172.09 364,822.23 8,045,956.89
August, 2012 0.00 1,386,466.16 359,454.03 7,812,883.32
September, 2012 0.00 1,365,643.76 354,055.63 7,583,238.72
October, 2012 0.00 1,344,704.23 348,626.87 7,356,974.73
November, 2012 0.00 1,323,646.92 343,167.57 7,134,043.65
December, 2012 0.00 1302471.16 337,677.56 6,914,398.45
January, 2013 0.00 1,281,176.29 332,156.67 6,697,992.75
February, 2013 0.00 1,259,761.63 326,604.72 6,484,780.80
March, 2013 0.00 1,238,226.51 321,021.54 6,214,717.49
April, 2013 0.00 1,216,570.26 315,406.96 6,067,758.34
May, 2013 0.00 1,194,792.19 309,760.80 5,863,859.47
June, 2013 0.00 1,172,891.62 304,082.88 5,662,977.61
July, 2013 0.00 1,150,867.86 298,373.02 5,465,070.10
August, 2013 0.00 1,128,720.22 292,631.04 5,270,094.85
September, 2013 0.00 1,106,448.00 286,856.76 5,078,010.38
October, 2013 0.00 1,084,050-49 281,050.00 4,888,775.74
November, 2013 0.00 1,061,527-00 275,210.58 4,702,350.59
December, 2013 0.00 1,038,876.81 269,338.31 4,518,695.13
January, 2014 0.00 1,016,099.22 263,433.01 4,337,770.11
February, 2014 0.00 993,193.50 257,494.49 4,159,536.81
March, 2014 0.00 970,158.94 251,522.57 3,983,957.08
April, 2014 0.00 946,994.81 245,517.06 3,810,993.26
May, 2014 0.00 923,700.38 239,477.77 3,640,608.25
June, 2014 0.00 900,274.92 233,404.51 3,472,765.43
July, 2014 0.00 876,717.69 227,297.08 3,307,428.71
August, 2014 0.00 853,027.95 221,155.30 3,144,562.48
September, 2014 0.00 829,204.96 214,978.97 2,984,131.64
October, 2014 0.00 805,247.96 208,767.90 2,826,101.57
November, 2014 0.00 781,156.20 202,521.89 2,670,438.12
December, 2014 0.00 756,928.93 196,240.75 2,517,107.64
January, 2015 0.00 732,565.38 189,924.28 2,366,076.92
February, 2015 0.00 708,064.79 183,572.28 2,217,313.22
March, 2015 0.00 683,426-38 177,184.55 2,070,784.27
April, 2015 0.00 658,649.38 170,760.89 1,926,458.22
May, 2015 0.00 633,733.01 164,301.09 1,784,303.66
June, 2015 0.00 608,676.48 157,804.96 1,644,289.66
July, 2015 0.00 583,479.01 151,272.28 1,506,385.67
August, 2015 0.00 558,139.80 144,702.86 1,370,561.59
September, 2015 0.00 532,658.06 138,096.49 1,236,787.73
October, 2015 0.00 507,032.99 131,452.95 1,105,034.82
November, 2015 0.00 481,263.78 124,772.05 975,273.98
December, 2015 0.00 455,349.61 118,053.56 847,476.76
January, 2016 0.00 429,289.68 111,297.28 721,615.07
</TABLE>
I-8
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
February, 2016 0.00 403,083.16 104,503.00 597,661.24
March, 2016 0.00 376,729.23 97,670.50 475,587.97
April, 2016 0.00 350,227.06 90,799.57 355,368.35
May, 2016 0.00 323,575.81 83,889.99 236,975.82
June, 2016 0.00 296,774.65 76941.14 120,181.20
July, 2016 0.00 269,822.73 69,954.01 5,567.71
August, 2016 0.00 157,352.24 40,795.01 0.00
September, 2016 0.00 41,677.40 10,805.25 0.00
October, 2016 and thereafter 0.00 0.00 0.00 0
</TABLE>
I-9
<PAGE>
EXHIBIT J
LIST OF MORTGAGE LOANS FOR WHICH MORTGAGE NOTES ARE LOST
LOAN ID DOC EXCEPTION
- ------- --- ---------
REPORT TOTALS: -- LOANS WITH -- UNCLEARED EXCEPTIONS.
-- --
J-1
<PAGE>
EXHIBIT K
ELECTRONIC DATA FILE INFORMATION
FORMAT AGREED UPON BY MASTER SERVICER AND TRUSTEE
PROVIDED UPON REQUEST
K-1
