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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 26, 1999
ABN AMRO Mortgage Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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333-57027-01 363886007
(Commission File Number) (I.R.S. Employer Identification No.)
181 West Madison Street
Chicago, Illinois 60602
(Address of Principal Executive Offices) (Zip Code)
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248-643-2530
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Description of the Certificates and the Mortgage Pool.
On April 28, 1999, a single series of certificates, entitled ABN AMRO
Mortgage Corporation, Mortgage Pass-Through Certificates, Series 1999-3 (the
"Certificates"), was issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") attached hereto as Exhibit 4.1 dated as of
April 1, 1999, among ABN AMRO Mortgage Corporation as depositor (the
"Depositor"), LaSalle Home Mortgage Corporation as servicer and Chase Bank of
Texas, National Association as trustee. The Certificates consist of eighteen
classes identified as the "Class A-1 Certificates", the "Class A-2
Certificates", the "Class A-3 Certificates", the "Class A-4 Certificates", the
"Class A-5 Certificates", the "Class A-6 Certificates", the "Class A-7
Certificates", the "Class A-8 Certificates", the "Class A-9 Certificates", the
"Class A-10 Certificates", the "Class A-11 Certificates", the "Class M
Certificates", the "Class B-1 Certificates", the "Class B-2 Certificates", the
"Class B-3 Certificates", the "Class B-4 Certificates", the "Class B-5
Certificates" and the "Class R Certificate", respectively, and were issued in
exchange for, and evidence the entire beneficial ownership interest in, the
assets of a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of conventional, one-to-four unit residential first mortgage
loans (the "Mortgage Loans"), having as of the close of business on April 1,
1999 (the "Cut-off Date"), an aggregate principal balance of approximately
$247,760,792 (the "Initial Pool Balance"), after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received. The Depositor acquired certain of the Trust Fund assets from
Standard Federal Bank ("Standard Federal") pursuant to a Mortgage Loan Purchase
Agreement (the "Mortgage Loan Purchase Agreement") dated April 28, 1999,
attached hereto as Exhibit 4.2, between Standard Federal as seller and the
Depositor as purchaser. The Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class
M, Class B-1, Class B-2 Certificates and the Class R Certificate were publicly
offered, as described in a Prospectus, dated September 18, 1998, and a
Prospectus Supplement, dated April 26, 1999, pursuant to an Underwriting
Agreement (the "Underwriting Agreement") dated March 19, 1999, attached hereto
as Exhibit 1.1, among the Depositor, Standard Federal Bancorporation, Inc.
("Standard Federal Bancorporation"), Lehman Brothers Inc. ("Lehman Brothers")
and ABN AMRO Incorporated ("AAI") (Lehman Brothers and AAI being referred to
herein, collectively, as the "Underwriters") and the Terms Agreement (the "Terms
Agreement") dated April 26, 1999, attached hereto as Exhibit 1.2, among the
Depositor, Standard Federal Bancorporation and the Underwriters. The Depositor
sold the Class B-3, Class B-4 and Class B-5 Certificates to Lehman Brothers as
initial purchaser (in such capacity, the "Initial Purchaser") pursuant to a
purchase agreement dated April 28, 1999 among the Depositor, Standard Federal
Bancorporation and the Initial Purchaser.
Each Class of Certificates will have an initial certificate principal
balance ("Certificate Principal Balance"). The Class A-1 Certificates have an
initial Certificate Principal Balance of $54,559,000. The Class A-2 Certificates
have an initial Certificate Principal Balance of $48,235,000. The Class A-3
Certificates have an initial Certificate Principal Balance of $4,950,000. The
Class A-4 Certificates have an initial Certificate Principal Balance of
$40,500,000. The Class A-5 Certificates have an initial Certificate Principal
Balance of $38,512,121. The Class A-6 Certificates have an initial Certificate
Principal Balance of $5,420,000. The Class A-7 Certificates have an initial
Certificate Principal Balance of $464,000. The Class A-8 Certificates have an
initial Certificate Principal Balance of $9,528,000. The Class A-9 Certificates
have an initial Certificate Principal Balance of $3,000,000. The Class A-10
Certificates have an initial Certificate Principal Balance of $2,000,000. The
Class A-11 Certificates have an initial Certificate Principal Balance of
$30,061,000. The Class M Certificates have an initial Certificate Principal
Balance of $5,574,000. The Class B-1 Certificates have an initial Certificate
Principal Balance of $1,983,000. The Class B-2 Certificates have an initial
Certificate Principal Balance of $992,000. The Class B-3 Certificates have an
initial Certificate Principal Balance of $867,000. The Class B-4 Certificates
have an initial Certificate Principal Balanceof $496,000. The Class B-5
Certificates have an initial Certificate Principal Balance of $619,570. The
Class R Certificate has an initial Certificate Principal Balance of $100.
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Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Pooling and Servicing Agreement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not applicable
(b) Not applicable
(c) Exhibits
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EXHIBIT
NO. DOCUMENT DESCRIPTION
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1.1 Underwriting Agreement, dated as of March 19, 1999, among ABN
AMRO Mortgage Corporation, Standard Federal Bancorporation,
Inc., ABN AMRO Incorporated and Lehman Brothers Inc.
1.2 Terms Agreement, dated April 26, 1999, among ABN AMRO Mortgage
Corporation, Standard Federal Bancorporation, Inc., ABN AMRO
Incorporated and Lehman Brothers Inc.
4.1 Pooling and Servicing Agreement, dated as of April 1, 1999,
among ABN AMRO Mortgage Corporation as depositor, LaSalle Home
Mortgage Corporation as servicer, and Chase Bank of Texas,
National Association as trustee.
4.2 Mortgage Loan Purchase Agreement, dated as of April 28, 1999,
between Standard Federal Bank as seller and ABN AMRO Mortgage
Corporation as purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ABN AMRO MORTGAGE CORPORATION
(Registrant)
Dated: April 26, 1999 By: /s/ Maria Fregosi
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Name: Maria Fregosi
Title: Vice-President
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INDEX TO EXHIBITS
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EXHIBIT
NO. DOCUMENT DESCRIPTION
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1.1 Underwriting Agreement, dated as of March 19, 1999, among ABN AMRO
Mortgage Corporation, Standard Federal Bancorporation, Inc., ABN
AMRO Incorporated and Lehman Brothers Inc.
1.2 Terms Agreement, dated April 26, 1999, among ABN AMRO Mortgage
Corporation, Standard Federal Bancorporation, Inc., ABN AMRO
Incorporated and Lehman Brothers Inc.
4.1 Pooling and Servicing Agreement, dated as of April 1, 1999, among
ABN AMRO Mortgage Corporation as depositor, LaSalle Home Mortgage
Corporation as servicer, and Chase Bank of Texas, National
Association as trustee.
4.2 Mortgage Loan Purchase Agreement, dated as of April 28, 1999,
between Standard Federal Bank as seller and ABN AMRO Mortgage
Corporation as purchaser.
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STATEMENT OF DIFFERENCES
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The section symbol shall be expressed as ............................. 'SS'
The double dagger symbol shall be expressed as ....................... 'DD'
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Exhibit 1.1
AMAC, SERIES 1999-3
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
March 19, 1999
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
ABN AMRO Incorporated
181 West Madison Street
Chicago, Illinois 60602
Ladies and Gentlemen:
ABN AMRO Mortgage Corporation (the "Company"), a Delaware corporation,
has authorized the issuance and sale of Mortgage Pass-Through Certificates (the
"Certificates") evidencing interests in pools of mortgage loans (the "Mortgage
Loans"). The Certificates may be issued in various series, and, within each
series, in one or more classes, and, within each class, in one or more
sub-classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool"), and certain other property held in
trust with respect to such Series (each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise requires,
shall mean you and such persons as are named as co-managers in the applicable
Terms Agreement (defined below).
Whenever the Company determines to make an offering of Certificates
pursuant to this Agreement through you or through an underwriting syndicate
managed by you it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Certificates to, and the purchase
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and offering thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on their behalf
(the "Underwriters," which term shall include you whether acting alone in the
sale of Certificates or as a member of an underwriting syndicate; as the context
requires, Lehman Brothers Inc. is sometimes referred to individually herein as
"Lehman Brothers" and ABN AMRO Incorporated is sometimes referred to
individually herein as "AAI"). The Terms Agreement relating to each offering of
Certificates shall specify, among other things, the stated balance or balances
of Certificates to be issued, the price or prices at which the Certificates are
to be purchased by the Underwriters from the Company and the initial public
offering price or prices or the method by which the price or prices at which
such Certificates are to be sold will be determined. A Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. Each such offering of Certificates which the Company elects to make
pursuant to this Agreement will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Underwriters participating
in the offering of such Certificates.
SECTION 1. Representations and Warranties. (a) The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-57027), relating to the offering of Certificates from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed, and proposes to file, such
amendments thereto as may have been required to the date hereof and the
same has become effective under the 1933 Act and the rules of the
Commission thereunder (the "Regulations") and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceedings for that purpose have been initiated or, to the Company's
knowledge, threatened, by the Commission. Such registration statement,
including incorporated documents, exhibits and financial statements, as
amended at the time when it became effective under the 1933 Act, and
the prospectus relating to the sale of Certificates by the Company
constituting a part thereof, as from time to time each is amended or
supplemented pursuant to the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall
be deemed to have supplemented the Prospectus only with respect to the
offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary
prospectus, the Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "1934 Act") on or before the date
on which the Registration Statement, as amended, became effective or
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the issue date of such preliminary prospectus, Prospectus, or
Prospectus Supplement, as the case may be; and any reference herein to
the terms "amend," "amendment" or supplement with respect to the
Registration Statement, any preliminary prospectus, the Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the
filing of any document under the 1934 Act after the date on which the
Registration Statement became effective or the issue date of any
preliminary prospectus, the Prospectus or the Prospectus Supplement, as
the case may be, deemed to be incorporated therein by reference. The
Registration Statement and Prospectus, at the time the Registration
Statement became effective did, and as of the applicable Representation
Date will, conform in all material respects to the requirements of the
1933 Act and the Regulations. The Registration Statement, at the time
it became effective did not, and as of the applicable Representation
Date and the applicable Closing Time (as defined in Section 2 hereof)
will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as amended
or supplemented as of the applicable Representation Date and the
applicable Closing Time (as defined in Section 2 hereof), will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to (i) statements in, or omissions from, the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus or (ii) the Lehman Brothers Information (as defined in
Section 10 hereof). The conditions to the use by the Company of a
registration statement on Form S-3 under the 1933 Act, as set forth in
the General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus. There are no
contracts or documents of the Company which are required to be
described in the Registration Statement or Prospectus or filed as
exhibits to the Registration Statement pursuant to the 1933 Act or the
Regulations which have not been so described or filed.
(2) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to enter into and
perform its obligations under this Agreement, the applicable Pooling
and Servicing Agreement, and with respect to a Series of Certificates,
the Certificates and the applicable Terms Agreement; and the Company is
duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
ownership or lease of its properties or the conduct of its business
requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other material instrument to which it is a party or by which
it or its properties may be bound, which default might result in any
material adverse change in the
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financial condition, earnings, affairs or business of the Company or
which might materially and adversely affect the properties or assets
thereof or the Company's ability to perform its obligations under this
Agreement, the applicable Terms Agreement or the applicable Pooling and
Servicing Agreement.
(4) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and the applicable Pooling
and Servicing Agreement and the signing of the Registration Statement
by the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part of
the Company; and with respect to a Series of Certificates described in
the applicable Terms Agreement, neither the issuance and sale of the
Certificates to the Underwriters, nor the execution and delivery by the
Company of this Agreement, such Terms Agreement and the related Pooling
and Servicing Agreement, nor the consummation by the Company of the
transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company other than as contemplated by a Pooling and Servicing
Agreement, pursuant to any material indenture, mortgage, contract or
other material instrument to which the Company is a party or by which
it is bound or to which the property or assets of the Company are
subject, or result in the violation of the provisions of the
certificate of incorporation or by-laws of the Company or any statute
or any material order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties.
(5) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (assuming due authorization,
execution and delivery by the other parties thereto), subject (a) to
applicable bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally, (b) as to
enforceability to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) as
to enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(6) Each applicable Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have
been duly authorized, executed and delivered by the Company, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (b) as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); and as of
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the Closing Time, the representations and warranties made by the
Company in the applicable Pooling and Servicing Agreement will be true
and correct as of the date made.
(7) As of the Closing Time (as defined in Section 2 hereof)
with respect to a Series of Certificates, the Certificates will have
been duly and validly authorized by the Company, and, when executed and
authenticated as specified in the related Pooling and Servicing
Agreement, will be validly issued and outstanding and will be entitled
to the benefits of the related Pooling and Servicing Agreement, and the
Classes of Certificates so designated in the related Prospectus
Supplement will be "mortgage related securities," as defined in Section
3(a)(41) of the 1934 Act.
(8) There are no actions, proceedings or investigations now
pending against the Company or, to the knowledge of the Company,
threatened against the Company, before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the applicable Pooling and Servicing
Agreement or with respect to a Series of Certificates, the
Certificates, (ii) seeking to prevent the issuance of such Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the applicable Terms Agreement or such Pooling and Servicing
Agreement, (iii) which would be likely to materially and adversely
affect the performance by the Company of its obligations under, or
which would if adversely determined materially and adversely affect the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, such Pooling and Servicing Agreement or such Certificates or
(iv) seeking to adversely affect the federal income tax attributes of
such Certificates described in the Prospectus and the related
Prospectus Supplement.
(9) Any material taxes, fees and other governmental charges
that are assessed and due in connection with the execution, delivery
and issuance of this Agreement, the applicable Terms Agreement, the
applicable Pooling and Servicing Agreement and with respect to a Series
of Certificates shall have been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent,
approval, authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and sale of
the Certificates or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Pooling and Servicing
Agreement or the applicable Terms Agreement, except the registration
under the 1933 Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Certificates by the Underwriters.
(11) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies deemed by the Company
to be reasonably necessary to conduct the business now operated by it
and as described in the Prospectus and the Company has received no
notice of proceedings relating to the revocation or modification of any
such license, certificate,
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authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business, operations, financial
condition or income of the Company.
(12) No litigation is pending or, to the Company's knowledge,
threatened, against the Company which would prohibit the Company's
entering into this Agreement or the applicable Pooling and Servicing
Agreement.
(13) As of the Closing Time, with respect to a Series of
Certificates described in the relevant Terms Agreement evidencing
interests in a Mortgage Pool, the Trustee will have either good and
marketable title, free and clear of all prior liens, charges, pledges,
mortgages, security interests and encumbrances, to or a validly
perfected first priority security interest in the Mortgage Notes and
the related Mortgages included in the Trust Fund, with respect to (a)
the Mortgage Notes, upon delivery thereof to the Trustee and (b) the
Mortgages, upon delivery to the Trustee of instruments of assignment in
recordable form assigning each Mortgage to the Trustee and the
recording of each such instrument of assignment in the appropriate
recording office in which the Mortgaged Property is located, or if
supported by an opinion of counsel, without recording.
(14) As of the Closing Time, with respect to a Series of
Certificates, the Mortgage Pool will have substantially the
characteristics described in the Prospectus Supplement and in the Form
8-K of the Company prepared with respect to such Certificates, if the
Mortgage Pool is described in such Form 8-K.
(15) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(16) The Certificates, the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement and any primary insurance
policies, mortgage pool insurance policies, standard hazard insurance
policies, special hazard insurance policies, mortgagor bankruptcy
insurance and alternate credit enhancement related to the Certificates
described in the relevant Terms Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus.
(17) As of the Closing Time, the Mortgage Loans will have been
duly and validly assigned and delivered by the Company to the Trustee
under the related Pooling and Servicing Agreement.
(18) As of the Closing Time, the representations and
warranties of the Company contained in the applicable Pooling and
Servicing Agreement are true and correct in all material respects.
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(b) Standard Federal Bancorporation, Inc. ("Standard Federal")
represents and warrants to you as of the date hereof, and to the Underwriters
named in the applicable Terms Agreement, all as of the date of such Terms
Agreement (in each case, the "Representation Date"), as follows (any
representations and warranties so made to the Underwriters named in an
applicable Terms Agreement respecting the Certificates being deemed to relate
only to the Certificates described therein):
(1) Standard Federal has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Michigan with corporate power and authority to enter into and
perform its obligations under this Agreement, and with respect to a
Series of Certificates, the applicable Terms Agreement; and Standard
Federal is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
the ownership or lease of its properties or the conduct of its business
requires such qualification.
(2) Standard Federal is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other material instrument to which it is a party or by which
it or its properties may be bound, which default might result in any
material adverse change in the financial condition, earnings, affairs
or business of Standard Federal or which might materially and adversely
affect the properties or assets thereof or Standard Federal's ability
to perform its obligations under this Agreement or the applicable Terms
Agreement.
(3) The execution and delivery by Standard Federal of this
Agreement and the applicable Terms Agreement are within the corporate
power of Standard Federal and have been duly authorized by all
necessary corporate action on the part of Standard Federal; and with
respect to a Series of Certificates described in the applicable Terms
Agreement, neither the execution and delivery by Standard Federal of
this Agreement and such Terms Agreement, nor the consummation by
Standard Federal of the transactions herein or therein contemplated,
nor compliance by Standard Federal with the provisions hereof or
thereof, will conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of Standard Federal, pursuant to any material
indenture, mortgage, contract or other material instrument to which
Standard Federal is a party or by which it is bound or to which the
property or assets of Standard Federal are subject, or result in the
violation of the provisions of the certificate of incorporation or
by-laws of Standard Federal or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Standard Federal or any of its properties.
(4) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by
Standard Federal, and each constitutes, or will constitute when
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so executed and delivered, a legal, valid and binding instrument
enforceable against Standard Federal in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally, (b) as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (c) as to enforceability with respect to rights
of indemnity thereunder, to limitations of public policy under
applicable securities laws.
(5) This Agreement when executed and delivered as contemplated
hereby and thereby will have been duly authorized, executed and
delivered by Standard Federal, and will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
Standard Federal in accordance with its terms (assuming due
authorization, execution and delivery by the other parties thereto),
subject (a) to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and (b) as to enforceability to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(6) There are no actions, proceedings or investigations now
pending against Standard Federal or, to the knowledge of Standard
Federal, threatened against Standard Federal, before any court,
administrative agency or other tribunal (i) asserting the invalidity of
this Agreement or the applicable Terms Agreement, (ii) seeking to
prevent the issuance of such Certificates or the consummation of any of
the transactions contemplated by this Agreement or the applicable Terms
Agreement, (iii) which would be likely to materially and adversely
affect the performance by Standard Federal of its obligations under, or
which would if adversely determined materially and adversely affect the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, or such Certificates or (iv) seeking to adversely affect the
federal income tax attributes of such Certificates described in the
Prospectus and the related Prospectus Supplement.
SECTION 2. Purchase and Sale. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the Underwriters shall be made at the offices of Mayer, Brown &
Platt, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time.
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Such Certificates will be made available for examination and packaging by you no
later than 12:00 noon on the first business day prior to the applicable Closing
Time.
It is understood that the Underwriters intend to offer the Certificates
for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Certificates covered thereby, the price
or prices at which the Certificates are to be purchased by the
Underwriters, either the initial public offering price or prices or the
method by which the price or prices by which the Certificates are to be
sold will be determined, the selling concession(s) and reallowance(s),
if any, any delayed delivery arrangements, and such other information
as you and the Company deem appropriate in connection with the offering
of the Certificates. The Company will furnish you a copy of the
Prospectus Supplement for your review prior to filing such Prospectus
Supplement with the Commission. Thereafter, the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus and such Prospectus
Supplement as you shall reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in
the relevant Terms Agreement and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period of time to
amend or supplement the Prospectus in order to comply with the 1933
Act, the Company agrees to notify you promptly and upon your request so
to amend or supplement the Prospectus and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise, and will
furnish you with copies
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of any such amendment or supplement or other documents proposed to be
filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document other than quarterly and annual reports to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Certificates for sale in any
jurisdiction or the threat of any proceeding for that purpose and (vi)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as possible.
(e) The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to
deliver to you the annual statement as to compliance delivered to the
Trustee pursuant to the applicable Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to the applicable Pooling and
Servicing Agreement, as soon as such statements are furnished to the
Company.
(f) The Company will deliver to you as many conformed copies
of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(g) The Company will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may reasonably designate, and will maintain or cause to
be maintained such qualifications in effect for as long as may be
required for the distribution of the Certificates, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction. The Company will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above
provided.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Certificates pursuant to any Terms Agreement shall
be subject to the accuracy of the
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representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made pursuant hereto,
to the performance by the Company of all of its obligations hereunder and to the
following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
initiated or threatened by the Commission and the Prospectus Supplement
shall have been filed or transmitted for filing by means reasonably
calculated to result in filing with the Commission not later than the
time required by Rule 424(b) under the 1933 Act, (ii) the Certificates
shall have received the rating or ratings specified in the applicable
Terms Agreement, and (iii) there shall not have come to your attention
any facts that would cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement at the time it was required
to be delivered to a purchaser of the Certificates, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. No challenge by
the Commission shall have been made to the accuracy or adequacy of the
Registration Statement and any request of the Commission for inclusion
of additional information in the Registration Statement or the
Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any amendment
or supplement to the Registration Statement, the Prospectus or the
Prospectus Supplement without prior written notice to the Underwriters.
(b) At the applicable Closing Time you shall have received:
(1) The opinion, dated as of the applicable Closing
Time, of Mayer Brown & Platt, counsel for the Company, in form and
substance satisfactory to such of you as may be named in the applicable
Terms Agreement, to the effect that:
(i) The Company is validly existing as a corporation
in good standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company, and each is a valid and binding obligation of the
Company.
(iii) The applicable Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the
Company, and is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except that (A) such enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
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(iv) The execution and delivery by the Company of
this Agreement, the applicable Terms Agreement and applicable
Pooling and Servicing Agreement and the signing of the
Registration Statement by the Company are within the corporate
power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and
neither the issue and sale of the Certificates nor the
consummation of the transactions contemplated herein or
therein nor the fulfillment of the terms hereof or thereof
will, conflict with or constitute a breach or violation of any
of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, or other
instrument to which the Company is a party or by which it may
be bound of which such counsel is aware, other than the lien
or liens created by the applicable Pooling and Servicing
Agreement, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of
the Company or, any statute, rule or regulation to which the
Company is subject or by which it is bound or any writ,
injunction or decree of any court, governmental authority or
regulatory body to which it is subject or by which it is bound
of which such counsel is aware.
(v) The Certificates have been duly authorized and,
when executed and authenticated as specified in the related
Pooling and Servicing Agreement and delivered and paid for,
will be validly issued, fully paid, nonassessable and entitled
to the benefits of the related Pooling and Servicing
Agreement.
(vi) Assuming strict compliance by the Underwriters
with the provisions of this Agreement, no filing or
registration with or notice to or consent, approval,
authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and
sale of the Certificates or the consummation by the Company of
the transactions contemplated by this Agreement, the
applicable Pooling and Servicing Agreement or the applicable
Terms Agreement, except the registration under the 1933 Act of
the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Certificates by the
Underwriters.
(vii) Other than as may be set forth or contemplated
in the Prospectus, there is no action, suit or proceeding of
which such counsel is aware before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to such counsel's knowledge, threatened against the
Company which might result in any material adverse change in
the financial condition, earnings, affairs or business of the
Company, or which might materially and adversely affect the
properties or assets thereof or might materially and adversely
affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates,
this Agreement or the Pooling and Servicing Agreement, or
which is required to be disclosed in the Registration
Statement.
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(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The applicable Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act
of 1939, as amended.
(x) The Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical information included therein, as to which no
opinion need be rendered) as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the 1933 Act and the Regulations
thereunder.
(xi) (A) The statements in the Prospectus under the
headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences" and the statements in the applicable
Prospectus Supplement under the headings "Certain Federal
Income Tax Consequences" and "ERISA Considerations", to the
extent that they describe matters of United States federal
income tax law or ERISA or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and
are accurate in all material respects and (B) the statements
in the Prospectus under the heading "Certain Legal Aspects of
the Mortgage Loans," to the extent they constitute matters of
United States federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible
consequences of investment in the Certificates, are accurate
in all material respects with respect to those consequences or
matters discussed therein.
(xii) The statements in the Prospectus and the
applicable Prospectus Supplement under the caption
"Description of the Certificates", insofar as they purport to
summarize certain terms of the Certificates and the applicable
Pooling and Servicing Agreement, constitute a fair summary of
the provisions purported to be summarized.
(xiii) The Trust Fund created by the applicable
Pooling and Servicing Agreement is not, and will not as a
result of the offer and sale of the Certificates as
contemplated in the Prospectus and in this Agreement become,
required to be registered as an "investment company" under the
1940 Act.
(xiv) The Classes of Certificates so designated in
the Prospectus Supplement will be "mortgage related
securities", as defined in 'SS'3(a)(41) of the 1934 Act, so
long as the Certificates are rated in one of the two highest
grades by at least one nationally recognized statistical
rating organization.
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(xv) Assuming (a) ongoing compliance with all of the
provisions of the Pooling and Servicing Agreement and (b) the
filing of elections, in accordance with the Pooling and
Servicing Agreement, to be treated as "real estate mortgage
investment conduits" ("REMICs") pursuant to Section 860D of
the Internal Revenue Code of 1986, as amended (the "Code") for
Federal income tax purposes, REMIC I and REMIC II of the Trust
Fund will qualify as REMICs as of the Closing Date and will
continue to qualify as REMICs for so long as there is
compliance with amendments after the date hereof to any
applicable provisions of the Code and applicable Treasury
Regulations.
(xvi) Assuming that REMIC I and REMIC II of the Trust
Fund are treated as REMICs for Federal income tax purposes,
neither of them nor the Trust Fund will be subject as an
entity to any tax imposed on income, franchise or capital
stock by the laws of Illinois.
Such counsel shall deliver to you such additional opinions addressing
the transfer by the Company to the Trustee of its right, title and interest in
and to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
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In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the Trustee,
dated as of the applicable Closing Time, addressed to you and
in form and scope satisfactory to your counsel, to the effect
that:
(i) The Trustee is a national association,
duly organized and validly existing in good standing under the
laws of the United States, and has all requisite power and
authority to enter into the Pooling and Servicing Agreement
and to perform its obligations thereunder.
(ii) No action, suit, proceeding or
investigation is now pending or, to the knowledge of such
counsel, threatened, against the Trustee that could materially
adversely affect the ability of the Trustee to perform its
obligations under the Pooling and Servicing Agreement.
(iii) The Trustee has duly authorized,
executed and delivered the applicable Pooling and Servicing
Agreement and such Pooling and Servicing Agreement will
constitute the legal, valid and binding obligation of the
Trustee.
(iv) The Trustee has full power and
authority to execute and deliver the applicable Pooling and
Servicing Agreement and to perform its obligations thereunder.
(v) No consent, approval or authorization
of, or registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of its
organization is required for the execution, delivery or
performance by the Trustee of the Pooling and Servicing
Agreement.
(vi) The Certificates have been duly and
validly executed, authenticated and delivered by the Trustee
in accordance with the Pooling and Servicing Agreement.
(vii) The performance by the Trustee of its
duties pursuant to the Pooling and Servicing Agreement does
not conflict with or result in a breach or violation of any
term or provision of, or constitute a default under, any
statute or regulation currently governing the Trustee.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent deemed proper and stated therein, on certificates
of responsible officers of the Trustee or public officials.
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(3) The favorable opinion of counsel to the Servicer,
dated as of the applicable Closing Time, addressed to you and
in form and scope satisfactory to your counsel, to the effect
that:
(i) The Servicer is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation.
(ii) The execution and delivery by the
Servicer of the applicable Pooling and Servicing Agreement is
within the corporate power of the Servicer and has been duly
authorized by all necessary corporate action on the part of
the Servicer; and to the knowledge of such counsel, neither
the execution and delivery of either such instrument, nor the
consummation of the transactions provided for therein, nor
compliance with the provisions thereof, will conflict with or
constitute a breach of, or default under, any contract,
indenture, mortgage, loan agreement, note, lease, deed of
trust, or other instrument to which the Servicer is a party or
by which it may be bound, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Servicer or to the knowledge of such counsel, any law,
administrative regulation or administrative or court decree.
(iii) The applicable Pooling and Servicing
Agreement has been duly executed and delivered by the Servicer
and constitutes a legal, valid and binding obligation of the
Servicer enforceable against the Servicer in accordance with
its terms, except that such enforceability thereof may be
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity (regardless whether enforcement is sought
in a proceeding in equity or at law).
(iv) The execution, delivery and performance
by the Servicer of the applicable Pooling and Servicing
Agreement 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 federal, state or other
governmental agency or authority which has not previously been
effected.
(v) No action, suit or proceeding of which
such counsel is aware before or by any court or governmental
agency or body, domestic or foreign, is now pending or, to the
knowledge of such counsel, threatened, against the Servicer
which might materially and adversely affect the performance by
the Servicer under, or the validity or enforceability of the
applicable Pooling and Servicing Agreement.
(vi) The description of the Servicer in the
applicable Prospectus Supplement is true and correct in all
material respects.
(4) The favorable opinion or opinions, dated as of
the applicable Closing Time, of counsel for the Underwriters,
acceptable to the Underwriters.
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(5) The favorable opinion, dated the applicable
Closing Time of counsel for Standard Federal, acceptable to
the Underwriters.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or
the Secretary of each of the Company and Standard Federal, dated as of
such Closing Time, to the effect that the representations and
warranties of the Company or Standard Federal, as the case may be,
contained in Section 1 are true and correct with the same force and
effect as though such Closing Time were a Representation Date and that
the Company or Standard Federal, as the case may be, has complied with
all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Time.
(d) You shall have received from Ernst & Young with respect to
certain information relating to the Company and from Deloitte & Touche
with respect to certain other information in the Prospectus Supplement,
or other independent certified public accountants acceptable to you,
letters, dated as of the date of the applicable Terms Agreement and as
of the applicable Closing Time, delivered at such times, in the form
and substance reasonably satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series
of Certificates, each of the representations and warranties of the
Servicer set forth in the related Pooling and Servicing Agreement will
be true and correct and you shall have received a Certificate of an
Executive Vice President, Senior Vice President or Vice President of
the Servicer, dated as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series
of Certificates, the Certificates shall have received the certificate
rating or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such other documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Certificates as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Certificates as herein contemplated shall be reasonably
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled or, if any of the opinions and
certificates required hereby shall not be in all material respects reasonably
satisfactory to you and your counsel, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
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SECTION 5. Payment of Expenses. The Company covenants and
agrees with the Underwriters that the Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement and
all other fees and expenses associated with the transactions referred to herein,
including, but not limited to, the fees and expenses of the Trustee, Rating
Agencies, printer, accounting firms, the fees and expenses relating to the
establishment of the Company's shelf registration statement and related ongoing
fees and expenses; provided, however, that the Underwriters covenant and agree
to pay all of their own costs and expenses, including underwriting and due
diligence expenses, the fees of their counsel, transfer taxes on resale of any
of the Certificates by them and any advertising expenses connected with any
offers they may make.
SECTION 6. Indemnification.
(a) The Company and Standard Federal, jointly and severally,
will indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of the 1933 Act,
against any losses, claims, damages, expenses or liabilities, joint or
several, to which such Underwriter or such controlling person may
become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such action or claim; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
such document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriters expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Underwriters, severally and not jointly, will
indemnify and hold harmless the Company, each of its officers who
signed the Registration Statement, its directors, and any person
controlling the Company within the meaning of the 1933 Act against any
losses, claims, damages, expenses or liabilities to which the Company
or any such officer, director or controlling person may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make
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the statements therein, in light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Underwriters expressly for use therein and will reimburse
the Company or any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company, any such
officer, director or controlling person in connection with
investigating or defending any such action or claim. This indemnity
agreement is in addition to any liability which the Underwriters may
otherwise have. The Company acknowledges that, unless otherwise set
forth in the applicable Terms Agreement, the statements set forth in
the second and third paragraphs up from the bottom of the cover page
(other than the first sentence of such second paragraph and the second
and fifth sentences of such third paragraph), and the first and fourth
paragraphs under the caption "Method of Distribution" (other than the
first and second sentences of such first paragraph) each as included in
the applicable Prospectus Supplement relating to a Series of
Certificates, together with the Lehman Brothers Information (as defined
in Section 10 hereof) other than any inaccuracies therein which are
caused by errors in the Pool Information relating to a Series of
Certificates constitute the only information furnished in writing by or
on behalf of the Underwriters expressly for use in the Registration
Statement relating to such Series of Certificates as originally filed
or in any amendment thereof, any related preliminary prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the
case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of one such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the
action, or (iii) the
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indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Certificates to
which such loss, claim, damage, expense or liability (or actions in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from such offering (before deducting expenses) received by
the Company to the total underwriting discounts and commissions (or in
the case of a public offering in negotiated transactions, the
difference between the proceeds to the Company and the aggregate price
received from the public) received by such Underwriters. The relative
fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding anything to the contrary in this Section
6(d), if the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this Section 6(d) arise out of an
untrue statement or alleged untrue statement of a material fact
contained in any Lehman Brothers 8-K (as such term is defined in
Section 10 hereof) then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Underwriters on the other
(determined in accordance with the preceding sentence) in connection
with the statements or omissions in such Lehman Brothers 8-K which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other equitable
-20-
<PAGE>
<PAGE>
considerations. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation even if the Underwriters
were treated as one entity for such purpose or by any other method of
allocation which does not take account of the equitable considerations
referred to in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to
the public were sold to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their
respective underwriting obligations with respect to such Certificates
and not joint.
SECTION 7. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company or Standard Federal, whether or not arising in the ordinary
course of business, which in your judgment would materially impair the market
for, or the investment quality of, the Certificates, or (ii) if there has
occurred any material outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in your reasonable judgment, impracticable to market the
Certificates or enforce contracts for the sale of the Certificates, or (iii) if
trading in securities generally on either the New York Stock Exchange or the
American Stock Exchange has been
-21-
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<PAGE>
suspended or materially limited or any setting of minimum prices shall have been
established or (iv) if a general moratorium of commercial banking activities has
been declared by either Federal or New York State authorities. In the event of
any such termination, (A) the covenants set forth in Section 3 with respect to
any offering of Certificates shall remain in effect so long as the Underwriters
own any such Certificates purchased from the Company pursuant to the applicable
Terms Agreement and (B) the covenant set forth in Section 3(c), the provisions
of Section 5, the indemnity agreement and contribution provisions set forth in
Section 6, and the provisions of Sections 7 and 12 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time to
purchase the Certificates which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted
Certificates"), then such of you as are named therein shall arrange for
you or another party or other parties to purchase the Defaulted
Certificates upon the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such Defaulted Certificates, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to you
to purchase such Defaulted Certificates on the terms contained herein.
In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such
Defaulted Certificates, or the Company notifies you that it has so
arranged for the purchase of such Defaulted Certificates, you or the
Company shall have the right to postpone the Closing Time for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made reasonably
necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as
if such person had originally been party to this Agreement with respect
to the Certificate.
(b) If, after giving effect to any arrangements for the
purchase of Defaulted Certificates of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased does not exceed 10% of the aggregate
principal amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Certificates which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of
Certificates which such Underwriter agreed to purchase pursuant to the
applicable Terms Agreement) of the Defaulted Certificates of the
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
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<PAGE>
(c) If, after giving effect to any arrangements for the
purchase of the Defaulted Certificates of the defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal amount
of the Certificates to be purchased pursuant to the applicable Terms
Agreement, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Defaulted Certificates of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity agreement and contribution
provisions in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
(a) Lehman Brothers acknowledges that, subsequent to the date
on which the Registration Statement became effective and up to and
including the date on which the Prospectus Supplement and Prospectus
with respect to a Series of Certificates is first made available to
Lehman Brothers, Lehman Brothers may furnish to various potential
investors in such Series of Certificates, in writing: (i)
"Computational Materials", as defined in a noaction letter (the "Kidder
No-Action Letter") issued by the staff of the Commission on May 20,
1994 to Kidder, Peabody Acceptance Corporation I, et al., as modified
by a no-action letter (the "First PSA No-Action Letter") issued by the
staff of the Commission on May 27, 1994 to the Public Securities
Association (the "PSA") and as further modified by a no-action letter
(the "Second PSA No-Action Letter", and together with the Kidder
No-Action Letter and the First PSA No-Action Letter, the "No-Action
Letters") issued by the staff of the Commission on February 17, 1995 to
the PSA; (ii) "Structural Term Sheets" as defined in the Second PSA
No-Action Letter; and/or (iii) "Collateral Term Sheets" as defined in
the Second PSA No-Action Letter. AAI covenants and agrees that it will
not prepare any Computational Materials, Structural Term Sheets or
Collateral Term Sheets in connection with the offering of Certificates
pursuant to this Underwriting Agreement except as provided for in the
Terms Agreement which relates to an offering of Certificates.
(b) In connection with each Series of Certificates, Lehman
Brothers shall furnish to the Company (via hard copy), at least one (1)
business day prior to the time of filing of the Prospectus pursuant to
Rule 424 under the 1933 Act, all Computational Materials used by Lehman
Brothers and required to be filed with the Commission in accordance
with the No-Action Letters (such Computational Materials, the "Lehman
Brothers Furnished Computational Materials").
(c) In connection with each Series of Certificates, Lehman
Brothers shall furnish to the Company (via hard copy), at least one (1)
business day prior to the time of filing of the Prospectus pursuant to
Rule 424 under the Act, all Structural Term Sheets used by Lehman
Brothers and required to be filed with the Commission in accordance
with the No-
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<PAGE>
Action Letters (such Structural Term Sheets, the "Lehman
Brothers Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, Lehman
Brothers shall furnish to the Company (via hard copy), within one (1)
business day after the first use thereof, all Collateral Term Sheets
used by Lehman Brothers and required to be filed with the Commission in
accordance with the No-Action Letters (such Collateral Term Sheets, the
"Lehman Brothers Furnished Collateral Term Sheets") and shall advise
the Company of the date on which each such Collateral Term Sheet was
first used.
(e) The Company shall prepare and file with the Commission, in
accordance with the No-Action Letters, one or more current reports on
Form 8-K (collectively, together with any amendments and supplements
thereto, the "Lehman Brothers 8-K," and each a "Lehman Brothers 8-K")
which shall include as one or more exhibits thereto the Lehman Brothers
Furnished Computational Materials, the Lehman Brothers Furnished
Structural Term Sheets and the Lehman Brothers Furnished Collateral
Term Sheets. Notwithstanding any other provision in the Underwriting
Agreement, Lehman Brothers agrees to pay up to $500.00 to the Company
for the reasonable and customary costs and expenses of the Company
incurred in connection with the filing by the Company of any
Computational Materials with the Commission. In addition, in the event
that the hardship exemption granted by the Commission allowing for the
paper filing of Computational Materials is no longer available, Lehman
Brothers will provide the Company with the Computational Materials in
an electronic format.
(f) Lehman Brothers shall cooperate with the Company and with
Deloitte & Touche in obtaining a letter, in form and substance
satisfactory to the Company and Lehman Brothers, of Deloitte & Touche
regarding the information in any Lehman Brothers 8-K consisting of
Lehman Brothers Furnished Computational Materials and/or Lehman
Brothers Furnished Structural Term Sheets.
(g) Lehman Brothers represents and warrants to, and covenants
with, the Company that the Lehman Brothers Information (defined below)
is not misleading and not inaccurate in any material respect and that
any Pool Information (defined below) contained in any Lehman Brothers
8-K which is not otherwise inaccurate in any material respect is not
presented in the Lehman Brothers 8-K in a way that is either misleading
or inaccurate in any material respect. Lehman Brothers further
covenants with the Company that if any Computational Materials or ABS
Term Sheets (as such term is defined in the Second PSA No-Action
Letter) contained in any Lehman Brothers 8-K are found to include any
information that is misleading or inaccurate in any material respect,
Lehman Brothers promptly shall inform the Company of such finding,
provide the Company with revised and/or corrected Computational
Materials or ABS Term Sheets, as the case may be, and promptly prepare
and deliver to the Company (in hard copy) for filing with the
Commission in accordance herewith, revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be.
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<PAGE>
(h) Lehman Brothers covenants that all Computational Materials
and ABS Term Sheets used by it shall contain a legend substantially as
set forth below:
Collateral Term Sheets (other than the initial Collateral
Term Sheet):
"THIS INFORMATION DOES NOT CONSTITUTE EITHER AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
REFERRED TO HEREIN. OFFERS TO SELL AND SOLICITATIONS OF OFFERS
TO BUY THE SECURITIES ARE MADE ONLY BY, AND THIS INFORMATION
MUST BE READ IN CONJUNCTION WITH, THE FINAL PROSPECTUS
SUPPLEMENT AND THE RELATED PROSPECTUS OR, IF NOT REGISTERED
UNDER THE SECURITIES LAWS, THE FINAL OFFERING MEMORANDUM (THE
"OFFERING DOCUMENT"). INFORMATION CONTAINED HEREIN DOES NOT
PURPORT TO BE COMPLETE AND IS SUBJECT TO THE SAME
QUALIFICATIONS AND ASSUMPTIONS, AND SHOULD BE CONSIDERED BY
INVESTORS ONLY IN THE LIGHT OF THE SAME WARNINGS, LACK OF
ASSURANCES AND REPRESENTATIONS AND OTHER PRECAUTIONARY
MATTERS, AS DISCLOSED IN THE OFFERING DOCUMENT. INFORMATION
REGARDING THE UNDERLYING ASSETS HAS BEEN PROVIDED BY THE
ISSUER OF THE SECURITIES OR AN AFFILIATE THEREOF AND HAS NOT
BEEN INDEPENDENTLY VERIFIED BY LEHMAN BROTHERS INC. OR ANY
AFFILIATE. THE ANALYSES CONTAINED HEREIN HAVE BEEN PREPARED
AND DISSEMINATED BY LEHMAN BROTHERS INC. AND THE CONTENTS AND
ACCURACY THEREOF HAVE NOT BEEN REVIEWED BY THE ISSUER. THIS
INFORMATION WAS PREPARED ON THE BASIS OF CERTAIN ASSUMPTIONS
(INCLUDING, IN CERTAIN CASES ASSUMPTIONS SPECIFIED BY THE
RECIPIENT HEREOF) REGARDING PAYMENTS, INTEREST RATES, WEIGHTED
AVERAGE LIVES AND WEIGHTED AVERAGE LOAN AGE, LOSS AND OTHER
MATTERS, INCLUDING, BUT NOT LIMITED TO, THE ASSUMPTIONS
DESCRIBED IN THE OFFERING DOCUMENT. LEHMAN BROTHERS INC., AND
ANY OF ITS AFFILIATES, MAKE NO REPRESENTATION OR WARRANTY AS
TO THE ACTUAL RATE OR TIMING OF PAYMENTS ON ANY OF THE
UNDERLYING ASSETS OR THE PAYMENTS OR YIELD ON THE SECURITIES.
THIS INFORMATION SUPERSEDES ANY PRIOR VERSIONS HEREOF AND WILL
BE DEEMED TO BE SUPERSEDED BY ANY SUBSEQUENT VERSIONS
(INCLUDING, WITH RESPECT TO ANY DESCRIPTION OF THE SECURITIES
OR THE UNDERLYING ASSETS, THE INFORMATION CONTAINED IN THE
OFFERING DOCUMENT)."
(i) For purposes of this Agreement, the term "Lehman Brothers
Information" means such portion, if any, of the information contained
in the Lehman Brothers 8-K that is not Pool Information. "Pool
Information" means the information furnished to the
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<PAGE>
Underwriters by the Company regarding the Mortgage Loans; provided,
however, that if any information that would otherwise constitute Pool
Information is presented in the Lehman Brothers 8-K in a way that is
either inaccurate or misleading in any material respect, such
information shall not be Pool Information.
(j) If the Underwriters do not provide any Computational
Materials or ABS Term Sheets to the Company pursuant to subsections
(b) - (d) above, the Underwriters shall be deemed to have represented,
as of the Closing Time, that they did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be
filed with the Commission in accordance with the No-Action Letters, and
the Underwriters shall provide the Company with a certification to that
effect at the Closing Time.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered, telexed, or telegraphed and confirmed or transmitted by any standard
form of telecommunication. Notices to Lehman Brothers shall be directed to you
at the address set forth on the first page hereof, to the attention of Stanley
P. Labanowski, with a copy to the General Counsel's office and notices to AAI
shall be directed to you at the address set forth on the first page hereof, to
the attention of Fixed Income Department--Maria Fregosi; with a copy to Legal
Department, ABN AMRO Incorporated, 1325 Avenue of the Americas, New York, New
York 10019, attention: Mark Egert. Notices to the Company or to Standard Federal
shall be directed to ABN AMRO Mortgage Corporation Securitization Department,
c/o Standard Federal Bank, 2600 West Big Beaver Road, Troy, Michigan, attention:
Stewart Fleming, with a copy to Legal Department, ABN AMRO North America, 135
S. LaSalle Street, Suite 925, Chicago, Illinois.
SECTION 12. Parties. This Agreement shall be binding upon and inure
solely to the benefit of you and the Company and to the extent provided in
Section 6 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling person and officers and directors
referred to in Section 6 hereof and their heirs any legal or equitable right,
remedy or claim under or with respect to this Agreement or a Terms Agreement or
any provision herein or therein contained.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Specified times of day refer to New York City time.
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SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
executed in any number of counterparts (which execution may take the form of an
exchange of any standard form of written telecommunication between you and the
Company), each of which shall constitute an original of any party whose
signature appears on it, and all of which shall together constitute a single
instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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<PAGE>
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
ABN AMRO MORTGAGE CORPORATION
By: /s/ Stewart W. Fleming
Name: Stewart W. Fleming
Title: Senior Vice President
STANDARD FEDERAL BANCORPORATION, INC.
By: /s/ Joseph E. Krul
Name: Joseph E. Krul
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
LEHMAN BROTHERS INC.
By: /s/ Stanley P. Labanowski
Name: Stanley P. Labanowski
Title: Vice President
ABN AMRO INCORPORATED
By: /s/ Maria Fregosi
Name: Maria Fregosi
Title: First Vice President
<PAGE>
<PAGE>
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
---------------
Dated: _________, ____
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of March 19, 1999 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand
that ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the
Underwriting Agreement are incorporated by reference herein in their entirety
and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. The Closing Time referred to
in Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms
and conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
Terms of the Certificates and Underwriting Compensation:
-1-
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<PAGE>
<TABLE>
<CAPTION>
Original
Principal Remittance Price to
Classes Amount* Rate Public
- ------- ---------- ---------- ----------
<S> <C> <C> <C>
**
</TABLE>
* Approximate. Subject to permitted variance in each case of plus or minus 5%.
** The Class __ Certificates are being offered by the Underwriter
from time to time in negotiated transactions or otherwise at varying
prices to be determined, in each case, at the time of sale.
Certificate Rating:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
The Company [does not] intend[s] to cause the Mortgage Pool to be treated
as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is ___________, ____.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a business day, the
business day immediately following) commencing __________, ____.
Purchase Price:
The purchase price payable by the Underwriter for the Class __ Certificates
is ___% of the aggregate principal balance of the Class __ Certificates as of
the Closing Date plus accrued interest at the per annum rate of ___% from
__________, ____ up to but not including the Closing Date.
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Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
Closing Date and Location:
__________ ____ at the [Chicago, Illinois] offices of Mayer,
Brown & Platt.
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Please confirm your agreement by having an authorized Officer
sign a copy of this Agreement in the space set forth below and returning a
signed copy to us.
LEHMAN BROTHERS INC.
By:
Name:
Title:
ABN AMRO INCORPORATED
By:
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By:
Name:
Title:
-4-
<PAGE>
<PAGE>
Exhibit I
<TABLE>
<CAPTION>
Original
Principal
Amount of
Name Certificates
- ---- ------------
<S> <C> <C>
Total ==============
</TABLE>
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<PAGE>
Exhibit 1.2
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: April 26, 1999
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of March 19, 1999 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand that
ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell $245,778,221 original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of April 1, 1999 among
the Company as depositor, LaSalle Home Mortgage Corporation as servicer and
Chase Bank of Texas, National Association as trustee. The terms of the
Certificates are summarized below and are more fully described in the Company's
Prospectus Supplement prepared with respect to the Certificates.
All the provisions (including defined terms) contained in the Underwriting
Agreement are incorporated by reference herein in their entirety and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. The Closing Time referred to in
Section 2 of the Underwriting Agreement shall be 9:00 a.m., Chicago, Illinois
time, on April 28, 1999. Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the respective
original principal amounts of Certificates set forth opposite their names in
Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Underwriters will pay for the Certificates at the time and place and
in the manner set forth in the Underwriting Agreement.
The Underwriters will pay their pro rata share (based upon the principal
amount of Offered Certificates each of the Underwriters has agreed to purchase
as indicated on Exhibit I hereto) of all fees and expenses relating to any
letter of independent certified public accountants delivered in connection with
the Computational Materials.
<PAGE>
<PAGE>
Series Designation: 1999-3
Terms of the Certificates and Underwriting Compensation:
<TABLE>
<CAPTION>
Original
Principal Remittance Price to
Classes Amount Rate * Public
- --------------- ------------------ ---------------- -----------
<S> <C> <C> <C>
Class A-1 $54,559,000 6.25%
Class A-2 $48,235,000 6.30%
Class A-3 $ 4,950,000 6.50%
Class A-4 $40,500,000 6.40%
Class A-5 $38,512,121 +
Class A-5-1** $ 7,440,407 6.75%***
Class A-5-2** $ 3,881,392 6.75%***
Class A-5-3 $34,354,000 6.75%++
Class A-5-4 $ 4,158,121 0.00%****
Class A-5-5** $ 4,168,920 6.75%***
Class A-6 $ 5,420,000 6.75%++
Class A-7 $ 464,000 0.00%*****
Class A-8 $ 9,528,000 7.00%
Class A-9 $ 3,000,000 7.00%
Class A-10 $ 2,000,000 6.75%
Class A-11 $30,061,000 6.35%
Class M $ 5,574,000 6.75%
Class B-1 $ 1,983,000 6.75%
Class B-2 $ 992,000 6.75%
Class R ****** $ 100 6.75%
</TABLE>
* Interest distributed to the Offered Certificates on each Distribution
Date will have accrued during the preceding calendar month at the
applicable per annum Interest Rate (as defined in the Prospectus
Supplement).
** Not entitled to receive distributions of principal.
*** Will accrue interest on the related Notional Amounts as described in the
Prospectus Supplement.
**** Will not be entitled to distributions of interest and will only receive
principal in respect of the Loans with Pass-Through Rates that are less
than 6.750% per annum.
***** Will not be entitled to distributions of interest.
<PAGE>
<PAGE>
****** Will be comprised of two Components, Component R-1, which represents the
sole residual interest in REMIC I (as defined in the Prospectus
Supplement), and Component R-2, which represents the sole residual
interest in REMIC II (as defined in the Prospectus Supplement).
+ The Class A-5 Certificates will be comprised of Component A-5-1,
Component A-5-2, Component A-5-3, Component A-5-4 and Component A-5-5.
++ Interest accrued on this class of certificates will initially be added
to its principal balance rather than distributed to the holders of this
class of certificates on each distribution date.
Certificate Rating:
Standard & Poor's, A Division of the McGraw-Hill Companies, Inc. ("S&P")
and Fitch IBCA, Inc. ("Fitch") shall each assign a rating of "AAA" to the Class
A Certificates (other than the Class A-5 and Class A-7 Certificates, which will
each be assigned a rating of "AAAr") and Class R Certificate. Fitch shall assign
a rating of not less than"AA" to the Class M Certificates, not less than"A" to
the Class B-1 Certificates and not less than "BBB" to the Class B-2
Certificates.
REMIC Election:
The Company intends to cause an election to be made to treat REMIC I and
REMIC II as "real estate mortgage investment conduits" (each, a "REMIC") for
federal income tax purposes. All of the Certificates issued by REMIC I and REMIC
II, other than the Class R Certificate, will represent ownership of REMIC
"regular interests". The Class R Certificate will represent ownership of the
REMIC "residual interest" in REMIC II and REMIC I.
Credit Enhancement:
Senior/Subordinated: Shifting interest
Cut-off Date:
The Cut-off Date is April 1, 1999.
Distribution Date:
The 25th day of each month (or, if such 25th day is not a business day,
the business day immediately following) commencing May 1999.
Purchase Price:
The purchase price payable by the Underwriters for the Certificates is
approximately 99.43% of the aggregate principal balance of the Certificates as
of the Closing Date plus accrued interest from April 1, 1999 up to but not
including the Closing Date.
<PAGE>
<PAGE>
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement,
no additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Closing Date and Location:
April 28, 1999 at the Chicago, Illinois offices of Mayer, Brown & Platt.
<PAGE>
<PAGE>
Please confirm your agreement by having an authorized Officer sign a
copy of this Agreement in the space set forth below and returning a signed copy
to us.
LEHMAN BROTHERS INC.
By: /s/ Stanley P. Labanowski
------------------------------------
Name: Stanley P. Labanowski
Title: Vice President
ABN AMRO INCORPORATED
By: /s/ Maria Fregosi
------------------------------------
Name: Maria Fregosi
Title: First Vice President
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By: /s/ Stewart W. Fleming
------------------------------------
Name: Stewart W. Fleming
Title: Senior Vice President
STANDARD FEDERAL BANCORPORATION, INC.
By: /s/ Joseph E. Krul
------------------------------------
Name: Joseph E. Krul
Title: Executive Vice President
<PAGE>
<PAGE>
Exhibit I
<TABLE>
<CAPTION>
Original
Principal
Amount of
Name Certificates
- -------- -----------------
<S> <C>
LEHMAN BROTHERS INC. 100% of the Certificates
Total $245,778,221
</TABLE>
<PAGE>
<PAGE>
Exhibit 4.1
- -------------------------------------------------------------------------------
ABN AMRO MORTGAGE CORPORATION
Depositor
and
LASALLE HOME MORTGAGE CORPORATION,
Servicer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
-----------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 1999
-----------------------------
$247,760,792.11
Mortgage Pass-Through Certificates
SERIES 1999-3
- -------------------------------------------------------------------------------
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS.....................................................................................4
ARTICLE II CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES..............................................................38
Section 2.1 Conveyance of Trust Fund.....................................................38
Section 2.2 Acceptance by Trustee........................................................42
Section 2.3 Representations and Warranties of the Depositor..............................44
Section 2.5 Designation of Startup Day...................................................49
Section 2.6 No Contributions.............................................................49
Section 2.7 Representations and Warranties of the Servicer...............................49
ARTICLE III ADMINISTRATION AND SERVICING OF LOANS..........................................................50
Section 3.1 Servicer to Act as Servicer; Administration of the Loans.....................50
Section 3.2 Collection of Certain Loan Payments; Certificate Account.....................54
Section 3.3 Permitted Withdrawals from the Custodial Account for P&I.....................56
Section 3.4 Taxes, Assessments and Similar Items; Escrow Accounts........................57
Section 3.5 Maintenance of Insurance.....................................................58
Section 3.6 Enforcement of Due-on-Sale Clauses;
Assumption and Substitution Agreements.......................................60
Section 3.7 Realization upon Defaulted Loans.............................................60
Section 3.8 Trustee to Cooperate; Release of Mortgage Files..............................63
Section 3.9 Servicing Compensation.......................................................63
Section 3.10 Reports to the Trustee; Custodial Account for
P&I Statements...............................................................64
Section 3.11 Annual Statement as to Compliance............................................64
Section 3.12 Annual Independent Public Accountants' Servicing Report......................64
Section 3.13 Access to Certain Documentation and
Information Regarding the Loans..............................................65
Section 3.14 [Reserved]...................................................................65
Section 3.15 Sale of Defaulted Loans and REO Properties...................................65
Section 3.16 Delegation of Duties.........................................................66
Section 3.17 [Reserved]...................................................................67
Section 3.18 [Reserved]...................................................................67
Section 3.19 Appointment of a Special Servicer............................................67
Section 3.20 Allocation of Realized Losses................................................67
Section 3.21 Maintenance of the Rounding Account; Collections Thereunder
..............................................................................................68
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS.........................................................................69
</TABLE>
i
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
Section 4.1 Distributions to Certificateholders..........................................69
Section 4.2 Statements to Certificateholders.............................................74
Section 4.3 Advances by the Servicer; Distribution Reports to the Trustee................76
Section 4.4 Nonrecoverable Advances......................................................77
Section 4.5 Foreclosure Reports..........................................................77
Section 4.6 Adjustment of Servicing Fees with Respect to Payoffs.........................78
Section 4.7 Prohibited Transactions Taxes and Other Taxes................................78
Section 4.8 Tax Administration...........................................................79
Section 4.9 Equal Status of Servicing Fee................................................79
Section 4.10 Appointment of Paying Agent and Certificate Administrator....................79
ARTICLE V THE CERTIFICATES...............................................................................80
Section 5.1 The Certificates.............................................................80
Section 5.2 Certificates Issuable in Classes; Distributions of
Principal and Interest; Authorized Denominations.............................87
Section 5.3 Registration of Transfer and Exchange of Certificates........................87
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates............................88
Section 5.5 Persons Deemed Owners........................................................88
Section 5.6 Temporary Certificates.......................................................88
Section 5.7 Book-Entry for Book-Entry Certificates.......................................89
Section 5.8 Notices to Clearing Agency...................................................90
Section 5.9 Definitive Certificates......................................................90
Section 5.10 Office for Transfer of Certificates..........................................91
ARTICLE VI THE DEPOSITOR AND THE SERVICER.................................................................91
Section 6.1 Liability of the Depositor and the Servicer..................................91
Section 6.2 Merger or Consolidation of the Depositor or the Servicer.....................91
Section 6.3 Limitation on Liability of the Servicer and Others...........................91
Section 6.4 Servicer Not to Resign.......................................................92
ARTICLE VII DEFAULT........................................................................................93
Section 7.1 Events of Default............................................................93
Section 7.2 Other Remedies of Trustee....................................................94
Section 7.3 Directions by Certificateholders and Duties of Trustee
During Event of Default......................................................94
Section 7.4 Action upon Certain Failures of Servicer and upon
Event of Default.............................................................95
Section 7.5 Appointment of Successor Servicer............................................95
Section 7.6 Notification to Certificateholders...........................................97
ARTICLE VIII CONCERNING THE TRUSTEE.........................................................................97
Section 8.1 Duties of Trustee............................................................97
Section 8.2 Certain Matters Affecting Trustee............................................99
Section 8.3 Trustee Not Required to Make Investigation..................................100
</TABLE>
ii
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
Section 8.4 Trustee Not Liable for Certificates or Loans................................100
Section 8.5 Trustee May Own Certificates................................................101
Section 8.6 Servicer to Pay Trustee's Fees and Expenses.................................101
Section 8.7 Eligibility Requirements for Trustee........................................101
Section 8.8 Resignation and Removal of Trustee..........................................102
Section 8.9 Successor Trustee...........................................................102
Section 8.10 Merger or Consolidation of Trustee..........................................103
Section 8.11 Appointment of Co-Trustee or Separate Trustee...............................103
Section 8.12 Appointment of Custodians...................................................104
Section 8.13 Authenticating Agent........................................................104
Section 8.14 Bloomberg...................................................................105
Section 8.15 Reports to Securities and Exchange Commission...............................105
ARTICLE IX TERMINATION...................................................................................106
Section 9.1 Termination upon Purchase by the Depositor or
Liquidation of All Loans....................................................106
Section 9.2 Trusts Irrevocable..........................................................107
Section 9.3 Additional Termination Requirements.........................................107
ARTICLE X MISCELLANEOUS PROVISIONS......................................................................108
Section 10.1 Amendment...................................................................108
Section 10.2 Recordation of Agreement....................................................109
Section 10.3 Limitation on Rights of Certificateholders..................................110
Section 10.4 Governing Law; Jurisdiction.................................................110
Section 10.5 Notices.....................................................................111
Section 10.6 Severability of Provisions..................................................111
</TABLE>
iii
<PAGE>
<PAGE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A - Forms of Class A and Subordinate Certificates
Exhibit B - Form of Residual Certificate
Exhibit C - [Reserved]
Exhibit D - Schedule of Loans
Exhibit E - Fields of Loan Information
Exhibit F - Form of Transferor Certificate for Privately Offered Certificates
Exhibit G - Form of Transferee's Certificate for Privately Offered Certificates
Exhibit H - [Reserved]
Exhibit I - Form of Transferor Certificate
Exhibit J - Form of Transferee Affidavit and Agreement
Exhibit K - Form of Additional Matter Incorporated into the Form of the Certificates
Exhibit L - Form of Rule 144A Investment Representation
Exhibit M - [Reserved]
Exhibit N - [Reserved]
Exhibit O - Planned Principal Balances
Exhibit P - Targeted Principal Balances
Exhibit Q - Bloomberg Data
Exhibit R - Form of Special Servicing and Collateral Fund Agreement
</TABLE>
iv
<PAGE>
<PAGE>
This Pooling and Servicing Agreement, dated and effective as of April
1, 1999 (this "Agreement"), is executed by and among ABN AMRO Mortgage
Corporation, as depositor (the "Depositor"), LaSalle Home Mortgage Corporation,
as servicer (the "Servicer"), and Chase Bank of Texas, National Association, as
trustee (the "Trustee"). Capitalized terms used in this Agreement and not
otherwise defined have the meanings ascribed to such terms in Article I hereof.
PRELIMINARY STATEMENT
The Depositor at the Closing Date is the owner of the Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Trust Fund as consideration for its transfer to the Trust Fund of the Loans and
certain other assets and will be the owner of the Certificates. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Loans and the issuance to the Depositor of
the Certificates representing in the aggregate the entire beneficial ownership
of the Trust Fund. All covenants and agreements made by the Depositor, the
Servicer and the Trustee herein with respect to the Loans and the other property
constituting the Trust Fund are for the benefit of the Holders from time to time
of the Certificates. The Depositor and the Servicer are entering into this
Agreement, and the Trustee is accepting the trust created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Certificates issued hereunder, other than the Class B-3, Class B-4
and Class B-5 Certificates have been offered for sale pursuant to a Prospectus,
dated September 18, 1998, and a Prospectus Supplement, dated April 26, 1999, of
the Depositor (together, the "Prospectus"). The Class B-3, Class B-4 and Class
B-5 Certificates have been offered for sale pursuant to a Private Placement
Memorandum dated April 28, 1999. The Trust Fund created hereunder is intended to
be the "Trust" as described in the Prospectus and the Private Placement
Memorandum and the Certificates are intended to be the "Certificates" described
therein.
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Loans and other related assets in the Trust Fund
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC I." Component R-1 of the
Class R Certificate will represent the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions under federal income tax law.
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the REMIC I Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC II". Component R-2 of the Class R Certificate will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designations, the Remittance Rate and initial Class Principal Balance for each
Class of Certificates which, together with the Class R-2 Component, constitute
the entire beneficial interests in REMIC II. Determined solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I Regular Interests and for each Class of
Certificates shall be
1
<PAGE>
<PAGE>
the first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Loan that has, as of the Closing Date,
the longest remaining amortization schedule, irrespective of its scheduled
maturity. The following table sets forth the designation, Remittance Rate,
initial Class Principal Balance, and Last Scheduled Distribution Date for each
Class of Certificates comprising the beneficial interests in REMIC II and the
Class R Certificate:
<TABLE>
<CAPTION>
Initial Class
Principal
Remittance or Notional Last Scheduled
Designation Rate (1) Balance Distribution Date*
----------- ---------- --------- -----------------
<S> <C> <C> <C>
Class A-1 6.25% $54,559,000 May 25, 2029
Class A-2 6.30% 48,235,000 May 25, 2029
Class A-3 6.50% 4,950,000 May 25, 2029
Class A-4 6.40% 40,500,000 May 25, 2029
Class A-5 (2) 38,512,121 May 25, 2029
Class A-6 6.75%(3) 5,420,000 May 25, 2029
Class A-7 0.00% 464,000 May 25, 2029
Class A-8 7.00% 9,528,000 May 25, 2029
Class A-9 7.00% 3,000,000 May 25, 2029
Class A-10 6.75% 2,000,000 May 25, 2029
Class A-11 6.35% 30,061,000 May 25, 2029
Class M 6.75% 5,574,000 May 25, 2029
Class B-1 6.75% 1,983,000 May 25, 2029
Class B-2 6.75% 992,000 May 25, 2029
Class B-3 6.75% 867,000 May 25, 2029
Class B-4 6.75% 496,000 May 25, 2029
Class B-5 6.75% 619,570 May 25, 2029
Class R'D' 6.75% 100(4) May 25, 2029
</TABLE>
* The Distribution Date in the month after the maturity date for the latest
maturing Loan.
'D' The Class R Certificate is entitled to receive the Residual Distribution
Amount and Excess Liquidation Proceeds.
(1) Interest distributed to the Certificates (other than the Principal Only
Certificate and Principal Only Component) on each Distribution Date
will have accrued during the preceding calendar month at the applicable
per annum Remittance Rate.
2
<PAGE>
<PAGE>
(2) For purposes of calculating distributions, the Class A-5 Certificates
will each be comprised of five Components having the designations,
initial Component Principal Balances and Remittance Rates set forth
below:
Initial Component Principal
<TABLE>
<CAPTION>
Designation or Notional Balance Remittance Rate
----------- ------------------- ---------------
<S> <C> <C>
Component A-5-1 $ 7,440,407 6.75%(A)
Component A-5-2 3,881,392 6.75%(B)
Component A-5-3 34,354,000 6.75%(C)
Component A-5-4 4,158,121 0.00%(D)
Component A-5-5 4,168,920 6.75%(E)
</TABLE>
<TABLE>
<S> <C>
(A) Component A-5-1 will accrue interest on the Component
A-5-1 Notional Amount Component A-5-1 will not be
entitled to receive distributions of principal.
(B) Component A-5-2 will accrue interest on the Component
A-5-2 Notional Amount Component A-5-2 will not be
entitled to receive distributions of principal.
(C) On each Distribution Date prior to the Component
A-5-3 Accretion Termination Date, an amount equal to
the Component A-5-3 Accrual Amount will be added to
the Component A- 5-3 Principal Balance and such
amount will be distributed as principal to other
Components and Classes of the Class A Certificates as
described herein and will not be distributed as
interest to Component A-5-3.
(D) Component A-5-4 will not be entitled to distributions
of interest and will receive principal only in
respect of the Loans.
(E) Component A-5-5 will accrue interest on the Component
A-5-5 Notional Amount. Component A-5-5 will not be
entitled to receive distributions of principal.
</TABLE>
(3) On each Distribution Date prior to the Class A-6 Accretion Termination Date,
an amount equal to the Class A-6 Accrual Amount will be added to the Class
A-6 Principal Balance, and such amount will be distributed as principal to
other Components and Classes of the Class A Certificates as described herein
and will not be distributed as interest to the Class A-6 Certificates.
(4) The Class R Certificate will be comprised of two components, component R-1,
which represents the sole residual interest in REMIC I (as defined herein),
and component R-2, which represents the sole residual interest in REMIC II
(as defined herein).
3
<PAGE>
<PAGE>
W I T N E S S E T H
----------------
In consideration of the mutual agreements herein contained, the
Depositor, Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article:
Accrual Certificate: The Class A-6 Certificates.
Accrual Component: Component A-5-3 of the Class A-5 Certificates.
Advance: An Advance made by the Servicer pursuant to Section 4.3.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officer's Certificate of the Servicer or the Depositor to
determine whether any Person is an Affiliate of such party.
Aggregate Certificate Principal Balance: At any given time, the sum of
the then current Class Principal Balances of all Classes of Certificates.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
ALTA: The American Land Title Association, or any successor.
Anniversary: Each anniversary of the Cut-off Date.
Appraised Value: The amount set forth in an appraisal made by or for
the mortgage originator in connection with its origination of each Loan.
4
<PAGE>
<PAGE>
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Loan to the Trustee, which assignment,
notice of transfer or equivalent instrument may, if permitted by law, be in the
form of one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 8.13.
Authorized Denomination: With respect to the Certificates (other than
the Class A-9 Certificates and the Class R Certificate), an initial Certificate
Principal Balance equal to $25,000 each and integral multiples of $1 in excess
thereof. With respect to the Class A-9 Certificates, an initial Certificate
Principal Balance equal to $1,000 each and integral multiples of $1,000 in
excess thereof. With respect to the Class R Certificate, one Certificate with
a Percentage Interest equal to 100%.
Available Distribution Amount: With respect to the Loans, the sum of
the following amounts:
(1) the total amount of all cash received by or on behalf of
the Servicer with respect to such Loans by the Determination Date for
such Distribution Date and not previously distributed (including
Liquidation Proceeds), except:
(a) all Prepaid Monthly Payments;
(b) all Curtailments received after the applicable
Prepayment Period (together with any interest payment received
with such prepayments to the extent that it represents the
payment of interest accrued on a related Loan subsequent to
the applicable Prepayment Period);
(c) all Payoffs received after the applicable
Prepayment Period (together with any interest payment received
with such Payoffs to the extent that it represents the payment
of interest accrued on such Loan for the period subsequent to
the applicable Prepayment Period);
(d) Insurance Proceeds and Liquidation Proceeds on
such Loans received after the applicable Prepayment Period;
(e) all amounts in the Custodial Account for P & I
which are due and reimbursable to the Servicer pursuant to the
terms of this Agreement;
(f) the Servicing Fee for each such Loan; and
(g) Excess Liquidation Proceeds;
5
<PAGE>
<PAGE>
(2) to the extent advanced by the Servicer and not previously
distributed, the amount of any Advance made by the Servicer to the
Trustee with respect to such Distribution Date relating to such Loans;
(3) to the extent advanced by the Servicer and not previously
distributed, any amount payable as Compensating Interest by the
Servicer on such Distribution Date relating to such Loans; and
(4) the total amount, to the extent not previously
distributed, of all cash received by the Distribution Date by the
Trustee or the Servicer, in respect of a Purchase Obligation under
Section 2.2 and Section 2.3 or any permitted repurchase of a Loan.
Bankruptcy Coverage: As of the Cut-Off Date, $100,000, and thereafter,
the initial Bankruptcy Coverage amount of $100,000, less (a) any scheduled or
permissible reduction in the amount of Bankruptcy Coverage pursuant to this
definition and (b) Bankruptcy Losses allocated to the Certificates. The
Bankruptcy Coverage may be reduced upon written confirmation from each Rating
Agency that such reduction will not adversely affect the then current ratings
assigned to the Certificates by each Rating Agency.
Bankruptcy Loss: A loss on a Loan arising out of (i) a reduction in the
scheduled Monthly Payment for such Loan by a court of competent jurisdiction in
a case under the United States Bankruptcy Code, other than any such reduction
that arises out of clause (ii) of this definition of "Bankruptcy Loss,"
including, without limitation, any such reduction that results in a permanent
forgiveness of principal, or (ii) with respect to any Loan, a valuation, by a
court of competent jurisdiction in a case under such Bankruptcy Code, of the
related Mortgaged Property in an amount less than the then outstanding Principal
Balance of such Loan.
Beneficial Holder: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a DTC Participant or an Indirect DTC
Participant or a Person holding a beneficial interest in any Definitive
Certificate.
Book-Entry Certificates: The Class A Certificates, the Class M
Certificates, the Class B-1 Certificates and the Class B-2 Certificates
beneficial ownership and transfers of which shall be made through book entries
as described in Section 5.7.
Business Day: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Chicago, Illinois or New York, New York, are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates issued pursuant to this
Agreement, executed by the Trustee and authenticated by or on behalf of the
Trustee hereunder in substantially one of the forms set forth in Exhibits A and
B hereto. The additional matter appearing in Exhibit K shall be deemed
incorporated into Exhibits A and B as though set forth at the end of Exhibit A
and at the end of Exhibit B, as applicable.
6
<PAGE>
<PAGE>
Certificate Account: The separate trust account created and maintained
with the Trustee or any other bank or trust company acceptable to each Rating
Agency which is incorporated under the laws of the United States or any state
thereof, which account shall bear a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustee on
behalf of the Certificateholders or any other account serving a similar function
acceptable to each Rating Agency. Funds in the Certificate Account in respect of
the Loans and amounts withdrawn from the Certificate Account attributable to the
Loans shall be accounted for separately. If the Trustee has appointed a
Certificate Administrator pursuant to Section 4.10, funds on deposit in the
Certificate Account may be invested in Eligible Investments and reinvestment
earnings thereon shall be paid to the Certificate Administrator as additional
compensation for the Certificate Administrator's performance of the duties
delegated to it by the Trustee. Funds deposited in the Certificate Account
(exclusive of the Servicing Fee) shall be held in trust for the
Certificateholders and for the uses and purposes set forth in Section 3.2,
Section 3.3 and Section 4.1.
Certificate Account Statement: With respect to the Certificate Account,
a statement delivered by the Certificate Administrator to the Trustee pursuant
to Section 3.10.
Certificate Administrator: Any Certificate Administrator appointed by
the Trustee as provided pursuant to Section 4.10. Initially, the Certificate
Administrator will be LaSalle National Bank.
Certificate Administrator and Trustee Fee: For each Loan, a fee per
annum equal to 0.0125% of the outstanding Principal Balance thereof which shall
be paid by the Servicer to the Certificate Administrator and the Trustee.
Certificate Distribution Amount: (I) For any Distribution Date prior to
the Credit Support Depletion Date, the Available Distribution Amount shall be
distributed to the Certificates in the following amounts and priority:
(a) with respect to the Senior Certificates and
Components:
(i) First, to Component A-5-4 of the Class A-5
Certificates, the Discount Fractional
Principal Amount;
(ii) Second, to the Senior Certificates and
Components (other than the Principal Only
Certificate and Principal Only Component),
concurrently, the sum of the Interest
Distribution Amounts for such Classes and
Components of Certificates remaining unpaid
from previous Distribution Dates, pro rata
according to their respective shares of such
unpaid amounts; provided, however, that on
or before the Component A-5-3 Accretion
Termination Date and the Class A-6 Accretion
Termination Date, the amount that would
otherwise be payable to the Class A-6
Certificates and Component A-5-3 of the
Class A-5 Certificates pursuant to this
clause (I)(a)(ii) will be paid
7
<PAGE>
<PAGE>
instead as principal as described in clause
(I)(a)(iii)(b) of this definition of
Certificate Distribution Amount;
(iii) Third, (a) to the Senior Certificates and
Components, concurrently, the sum of the
Interest Distribution Amounts for such
Classes and Components (other than the
Principal Only Certificate and Principal
Only Component) of Certificates for the
current Distribution Date, pro rata
according to their respective Interest
Distribution Amounts;
(b) on or before the Component A-5-3
Accretion Termination Date and the
Class A-6 Accretion Termination Date
the Component A-5-3 Accrual Amount and
the Class A-6 Accrual Amount, as
principal, as follows:
(1) to the Class A-4 and Class A-11
Certificates, pro rata, according
to their outstanding Class
Principal Balances, to the extent
necessary to reduce their
respective Principal Balances to
their first Targeted Principal
Balances;
(2) to Component A-5-3 of the Class
A-5 Certificates, to the extent
necessary to reduce its Principal
Balance to its first Targeted
Principal Balance;
(3) to the Class A-6 Certificates
until its Principal Balance has
been reduced to zero;
(4) to the Class A-7, Class A-8 and
Class A-9 Certificates, pro rata,
according to their outstanding
Class Principal Balances, without
regard to any Rounding Amounts
distributed to the Class A-9
Certificates, until their
Principal Balances have been
reduced to zero;
(5) to the Class A-4 and Class A-11
Certificates, pro rata, according
to their outstanding Class
Principal Balances, to the extent
necessary to reduce their
respective Principal Balances to
their second Targeted Principal
Balances;
(6) to Component A-5-3 of the Class
A-5 Certificates, to the extent
necessary to reduce its Principal
Balance to its second Targeted
Principal Balance;
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(7) to the Class A-4 and Class A-11
Certificates, pro rata, without
regard to their first or second
Targeted Principal Balances until
their Principal Balances have been
reduced to zero; and
(8) to Component A-5-3 of the Class
A-5 Certificates, without regard
to its first or second Targeted
Principal Balances until its
Principal Balance has been reduced
to zero;
(iv) Fourth, to the Senior Certificates and
Components (other than the Principal Only
Component), the Senior Principal Amount as
follows:
(a) first, to the Class R Certificate,
until its Principal Balance has been
reduced to zero;
(b) second, to the Class A Certificates
(other than the Principal Only
Component) concurrently as follows:
(1) 0.8581076153% of the Senior
Principal Amount remaining, to the
Class A-10 Certificates, until its
Principal Balance has been reduced
to zero;
(2) 99.1418923847% of the Senior
Principal Amount remaining,
sequentially as follows:
a. first, to the Class A-1, A-2
and A-3 Certificates
sequentially, to the extent
necessary to reduce their
respective Principal Balances
to their Planned Principal
Balances;
b. second, to the Class A-4 and
Class A-11 Certificates, pro
rata, according to their
outstanding Class Principal
Balances, to the extent
necessary to reduce their
Principal Balances to their
first Targeted Principal
Balances;
c. third, to Component A-5-3 of
the Class A-5 Certificates, to
the extent necessary to reduce
its Principal Balance to its
first Targeted Principal
Balance;
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d. fourth, to the Class A-6
Certificates, until its
Principal Balance has been
reduced to zero;
e. fifth, to the Class A-7, Class
A-8 and Class A-9
Certificates, pro rata,
according to their outstanding
Class Principal Balances,
without regard to any Rounding
Amounts distributed to the
Class A-9 Certificates, until
their Principal Balances have
been reduced to zero;
f. sixth, to the Class A-4 and
Class A-11 Certificates, pro
rata, according to their
outstanding Class Principal
Balances, to the extent
necessary to reduce their
Principal Balances to their
second Targeted Principal
Balances;
g. seventh, to Component A-5-3 of
the Class A-5 Certificates, to
the extent necessary to reduce
its Principal Balance to its
second Targeted Principal
Balance;
h. eighth, to the Class A-4 and
Class A-11 Certificates, pro
rata, according to their
outstanding Class Principal
Balances without regard to its
first or second Targeted
Principal Balances until their
Principal Balances have been
reduced to zero;
i. ninth, to Component A-5-3 of
the Class A-5 Certificates,
without regard to its first or
second Targeted Principal
Balances until its Principal
Balance has been reduced to
zero; and
j. tenth, to the Class A-1, Class
A-2 and Class A-3 Certificates,
sequentially, without regard to
their Planned Principal
Balances until their Principal
Balances have been reduced to
zero;
(v) Fifth, to Component A-5-4 of the Class A-5
Certificates up to the applicable
Subordinate Principal Amount (determined
without regard to the proviso of such
definition) for such Distribution Date, the
portion of the Discount Fractional Principal
Shortfall amount payable
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to Component A-5-4 of the Class A-5
Certificates on previous Distribution Dates
pursuant to clause (I)(a)(vi) of this
definition of "Certificate Distribution
Amount" and remaining unpaid from such
previous Distribution Dates; and
(vi) Sixth, to Component A-5-4 of the Class A-5
Certificates up to the applicable
Subordinate Principal Amount (determined
without regard to the proviso of such
definition) for such Distribution Date (less
any amounts distributed to Component A-5-4
of the Class A-5 Certificates pursuant to
paragraph (I)(a)(v)), the Discount
Fractional Principal Shortfall, provided,
that any amounts distributed in respect of
the Discount Fractional Principal Shortfall
pursuant to paragraph (I)(a)(v) or this
paragraph (I)(a)(vi) of this definition of
"Certificate Distribution Amount" shall not
cause a further reduction of the Component
A-5-4 Component Principal Balance;
(b) with respect to the Subordinate Certificates and the Class
R Certificate, on any Distribution Date prior to the Credit Support
Depletion Date, to the extent of the Available Distribution Amount
remaining:
(i) First, to the Class M, B-1, B-2, B-3, B-4 and B-5
Certificates, in their order of seniority, the following:
(1) their respective amounts of previously
unpaid and then current Interest Distribution
Amounts;
(2) their pro rata share, according to their
respective Class Principal Balances, of the
Subordinate Principal Amount allocable pursuant to
the definition of "Subordinate Principal Amount"
herein, until their Principal Balances have been
reduced to zero;
(ii) Second, to the Subordinate Certificates in their
order of seniority, the amount of unreimbursed Realized Losses
previously allocated to such Class, if any, provided, that any
amounts distributed in respect of losses pursuant to this
paragraph (I)(b)(ii) of this definition of "Certificate
Distribution Amount" shall not cause a further reduction in
the Class Principal Balances of the Subordinate Certificates;
and
(iii) Third, to the Class R Certificate, the Residual
Distribution Amount;
(II) For any Distribution Date on or after the Credit Support Depletion
Date, the Available Distribution Amount remaining, shall be distributed to the
outstanding Senior Certificates and Components in the following amounts and
priority:
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(a) First to Component A-5-4 of the Class A-5 Certificates the
Discount Fractional Principal Amount;
(b) Second, to the Senior Certificates (including the Accrual
Certificate and Accrual Component, but excluding the Principal Only
Certificate and Principal Only Component), previously unpaid and then
current Interest Distribution Amounts, pro rata, according to such
amount payable to the extent of amounts available;
(c) Third, to the Senior Certificates (other than the Interest
Only Components and Principal Only Component), the Senior Principal
Amount, pro rata, according to their respective Class Principal
Balances (other than the Interest Only Components and the Principal
Only Component);
(d) Fourth, to the Senior Certificates, pro rata, according to
their respective Class Principal Balances or Component Principal
Balances, the amount of unreimbursed Realized Losses previously
allocated to such Class; and
(e) Fifth, to the Class R Certificate, the Residual
Distribution Amount for such Distribution Date.
Certificate Principal Balance: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed, respectively, pursuant to Section 5.3. Initially,
the Certificate Registrar shall be LaSalle National Bank.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Certificate Administrator, the Servicer or any
affiliate thereof shall be deemed not to be outstanding and the Percentage
Interest evidenced thereby shall not be taken into account in determining
whether the requisite percentage of Percentage Interests necessary to effect any
such consent has been obtained; provided, that the Trustee, the Certificate
Registrar and the Paying Agent may conclusively rely upon an Officer's
Certificate to determine whether any Person is an affiliate of the Depositor,
the Certificate Administrator or the Servicer.
Certificateholders' Report: As defined in Section 4.2(a).
Class: All Certificates having the same priority and rights to payments
from the Available Distribution Amount, designated as a separate Class, as set
forth in the forms of Certificates attached hereto as Exhibits A and B.
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Class A-6 Accretion Termination Date: The earlier to occur of (i) the
Distribution Date on which the Class A-4, Class A-11, and Component A-5-3
Principal Balances have been reduced to zero and (ii) the Credit Support
Depletion Date.
Class A-6 Accrual Amount: For any Distribution Date prior to the Credit
Support Depletion Date, an amount equal to the accrued interest that would
otherwise be distributable in respect of the Class A-6 Certificates on such
Distribution Date and which will be added to the Class A-6 Principal Balance.
Class A Certificates: The Class A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8,
A-9, A-10 and A-11 Certificates, collectively, and designated as such on the
face thereof in substantially the forms attached hereto as Exhibits A-1 through
A-11, respectively.
Class R Certificate: The Certificate designated as "Class R" on the
face thereof in substantially the form attached hereto as Exhibit B, that is
composed of Components R-1 and R-2 each of which has been designated as the sole
class of "residual interests" in REMIC I and REMIC II, respectively, pursuant to
Section 2.1.
Class R Certificateholder: The registered Holder of the Class R
Certificate.
Class Principal Balance: For any Class of Certificates (other than the
Class A-5 Certificates), the applicable initial Class Principal Balance set
forth in the Preliminary Statement hereto, corresponding to the rights of such
Class in payments of principal due to be passed through to Certificateholders
from principal payments on the Loans, as reduced from time to time by (x)
distributions of principal to Certificateholders of such Class and (y) the
portion of Realized Losses allocated to the Class Principal Balance of such
Class pursuant to the definition of "Realized Loss" with respect to a given
Distribution Date. For any Distribution Date, the reduction of the Class
Principal Balance of any Class of Certificates pursuant to the definition of
"Realized Loss" shall be deemed effective prior to the determination and
distribution of principal on such Class pursuant to the definition of
"Certificate Distribution Amount". Notwithstanding the foregoing, the Class
Principal Balance of the most subordinate Class of Certificates outstanding at
any time shall be equal to the aggregate Scheduled Principal Balance of all of
the Loans less the Class Principal Balance of all other Classes of Certificates.
The Class Principal Balance for the Class A-1 Certificates shall be referred to
as the "Class A-1 Principal Balance", the Class Principal Balance for the Class
A-2 Certificates shall be referred to as the "Class A-2 Principal Balance" and
so on.
Closing Date: April 28, 1999, which is the date of settlement of the
sale of the Certificates to the initial purchasers thereof.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: For any Distribution Date, with respect to the
Loans contained therein, the lesser of (i) the sum of (a) one-twelfth of 0.125%
of the aggregate outstanding Principal
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Balance of each Loan on such Distribution Date, (b) the aggregate Payoff
Earnings and (c) the aggregate Payoff Interest and (ii) the aggregate
Uncollected Interest.
Component: A portion of the Class A-5 Certificates representing parts
of the entitlement of such Class to principal and/or interest as described in
the Preliminary Statement hereto and the remainder of this Agreement and
hereafter referred to as Component A-5-1, A-5-2, A-5-3, A-5-4 and A-5-5.
Component Notional Amount: With respect to Component A-5-1, A-5-2 and
A-5-5 of the Class A-5 Certificates, the corresponding notional amount for such
Component.
Component A-5-1 Notional Amount: As of the Closing Date approximately
$7,440,407 and thereafter, an amount equal to the sum of:
2/27ths of the Principal Balance of the
Class A-1 Certificates
+
1/15ths of the Principal Balance of the
Class A-2 Certificates
+
1/27th of the Principal Balance of the
Class A-3 Certificates
Component A-5-2 Notional Amount: As of the Closing Date approximately
$3,881,392, and thereafter, an amount equal to the sum of:
7/135ths of the Principal Balance of the
Class A-4 Certificates
+
8/135ths of the Principal Balance of the
Class A-11 Certificates
Component A-5-3 Accretion Termination Date: The earlier to occur of (i)
the Distribution Date on which the Class A-4, Class A-6, Class A-7, Class A-8,
Class A-9 and Class A-11 Principal Balances have been reduced to zero and (ii)
the Credit Support Depletion Date.
Component A-5-3 Accrual Amount: For any Distribution Date prior to the
Credit Support Depletion Date, an amount equal to the accrued interest that
would otherwise be distributable in respect of Component A-5-3 of the Class A-5
Certificates on such Distribution Date and which will be added to the Component
A-5-3 Component Principal Balance.
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Component A-5-5 Notional Amount: As of the Closing Date approximately
$4,190,242, and thereafter, with respect to any Distribution Date will equal the
total Principal Balance, as of the first day of the month of such Distribution
Date, of the Premium Loans multiplied by the following fraction:
the weighted average of the Pass-Through Rates of the
Premium Loans as of the first day of such month minus 6.75%
6.75%
Component Principal Balance: For Components A-5-3 and A-5-4 of the
Class A-5 Certificates, the applicable initial Component Principal Balance
therefor set forth in the Preliminary Statement hereto, corresponding to the
rights of such Component in payments of principal due to be passed through to
the holders of the Class A-5 Certificates from principal payments on the Loans,
as reduced from time to time by (x) distributions of principal to the holders of
the Class A-5 Certificates in respect of such Component and (y) the portion of
Realized Losses allocated to the Component Principal Balance in respect of such
Component pursuant to the definition of "Realized Loss" with respect to a given
Distribution Date. For any Distribution Date, the reduction of the Component
Principal Balance of any Component pursuant to the definition of "Realized Loss"
shall be deemed effective prior to the determination and distribution of
principal on such Component pursuant to the definition of "Certificate
Distribution Amount." Notwithstanding the foregoing, any amounts distributed in
respect of losses pursuant to paragraphs (I)(a)(v) or (I)(a)(vi) of the
definition of "Certificate Distribution Amount" shall not cause a further
reduction in the Component A-5-4 Component Principal Balances. The Component
Principal Balance for Component A-5-3 shall be referred to as the "Component
A-5-3 Principal Balance" and the Component Principal Balance for Component A-5-4
shall be referred to as the "Component A-5-4 Principal Balance." The Component
Principal Balance of the Interest Only Components shall be zero.
Corporate Trust Office: The corporate trust office of the Trustee in
the State of Texas, at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 600 Travis Street, Suite 1150,
Houston, Texas 77002, Attention: S. Whitten Rusk III.
Credit Support Depletion Date: The first Distribution Date on which the
aggregate of the Class Principal Balances of the Subordinate Certificates has
been or will be reduced to zero as a result of principal distributions thereon
and the allocation of Realized Losses on such Distribution Date.
Curtailment: Any payment of principal on a Loan, made by or on behalf
of the related Mortgagor, other than a Monthly Payment, a Prepaid Monthly
Payment or a Payoff, which is applied to reduce the outstanding Principal
Balance of the Loan.
Curtailment Shortfall: With respect to any Curtailment applied with a
Monthly Payment, an amount equal to one month's interest on such Curtailment at
the applicable Pass-Through Rate on such Loan.
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Custodial Account for P&I: The Custodial Account for Principal and
Interest established and maintained by the Servicer and caused by the Servicer
to be established and maintained pursuant to Section 3.2(b) with the corporate
trust department of the Trustee or another financial institution approved by the
Servicer such that the rights of such Servicer, the Trustee and the
Certificateholders thereto shall be fully protected against the claims of any
creditors of the Servicer and of any creditors or depositors of the institution
in which such account is maintained, (a) within FDIC insured accounts (or other
accounts with comparable insurance coverage acceptable to each Rating Agency)
created, maintained and monitored by the Servicer or (b) in a separate non-trust
account without FDIC or other insurance in an Eligible Institution. In the event
that a Custodial Account for P&I is established pursuant to clause (a) of the
preceding sentence, amounts held in such Custodial Account for P&I shall not
exceed the level of deposit coverage on such account; accordingly, more than one
Custodial Account for P&I may be established.
Custodial Agreement: The agreement, if any, among the Servicer, the
Trustee and a Custodian providing for the safekeeping of the Mortgage Files on
behalf of the Certificateholders.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trustee at no additional charge to the
Servicer. The Trustee shall remain at all times responsible under the terms of
this Agreement, notwithstanding the fact that certain duties have been assigned
to a Custodian.
Cut-Off Date: April 1, 1999.
Data: As defined in Section 8.14.
Deceased Holder: A Beneficial Holder of a Class A-9 Certificate who was
living at the time such Class A-9 Certificate was acquired and whose executor,
authorized personal representative, surviving tenant by the entirety, surviving
joint tenant or surviving tenant in common or other person endowed to act on
behalf of such Beneficial Holder causes to be furnished to the Trustee evidence
of such Beneficial Holder's death satisfactory to the Trustee and any tax
waivers requested by the Trustee.
Defaulted Loan: As of any Determination Date, any Loan for which any
payment of principal of or interest on such Loan is more than 89 days past due,
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note or any other document in the Mortgage File.
Definitive Certificates: As defined in Section 5.7.
Denomination: The amount specified on a Certificate as representing the
aggregate Principal Balance of the Loans as of the Cut-Off Date evidenced by
such Certificate.
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Depository Agreement: The Letter of Representations, dated April 28,
1999 by and among DTC, the Depositor and the Trustee.
Depositor: ABN AMRO Mortgage Corporation, a Delaware corporation, or
its successor-in-interest.
Depository: DTC or any successor thereto.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: A day not later than the 10th day (or, if such 10th
day is not a Business Day, the Business Day immediately succeeding such 10th
day) preceding a related Distribution Date in the month in which such
Distribution Date occurs.
Discount Fraction: For any Discount Loan, the following fraction:
6.75% - the Pass-Through Rate on such Discount Loan
6.75%
Discount Fractional Principal Amount: On each Distribution Date, an
amount equal to the product of the Discount Fraction multiplied by the sum of
(i) scheduled payments of principal on each Discount Loan due on or before the
related Due Date in respect of which no distribution has been made on any
previous Distribution Date and which were received by the Determination Date, or
which have been advanced as part of an Advance with respect to such Distribution
Date, (ii) the principal portion received in respect of each Discount Loan
during the Prior Period of (a) Curtailments, (b) Insurance Proceeds, (c) the
amount, if any, of the principal portion of the Purchase Price pursuant to a
Purchase Obligation or any repurchase of a Discount Loan permitted hereunder and
(d) Liquidation Proceeds and (iii) the principal portion of Payoffs received in
respect of such Discount Loan during the applicable Prepayment Period.
Discount Fractional Principal Shortfall: For any Distribution Date, an
amount equal to the Discount Fraction of any Realized Loss on a Discount Loan,
other than a Special Hazard Loss, Fraud Loss or Bankruptcy Loss in excess of the
Special Hazard Coverage, Fraud Coverage or Bankruptcy Coverage, as applicable.
Discount Loan: The Loans having Pass-Through Rates of less than 6.75%.
Disqualified Organization: As defined in Section 5.1(b)
Distribution Date: With respect to distributions on the Certificates,
the 25th day (or, if such 25th day is not a Business Day, the Business Day
immediately succeeding such 25th day) of each month, with the first such date
being May 25, 1999.
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DTC: The Depository Trust Company.
DTC Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of securities
deposited with DTC.
Due Date: The first day of each calendar month, which is the day on
which the Monthly Payment for each Loan is due.
Eligible Account: Any account or accounts held and established by the
Servicer or the Trustee in trust for the Certificateholders at any Eligible
Institution.
Eligible Institution: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency, (ii) with respect to any Custodial Account for P&I, an unsecured
long-term debt rating of at least one of the two highest unsecured long-term
debt ratings of each Rating Agency, or (iii) the approval of each Rating Agency.
Eligible Investments: Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the following Distribution Date, regardless of whether
issued by the Depositor, the Servicer, the Trustee or any of their respective
Affiliates and having at the time of purchase, or at such other time as may be
specified, the required ratings, if any, provided for in this definition:
(a) direct obligations of, or guaranteed as to full and timely payment
of principal and interest by, the United States or any agency or instrumentality
thereof, provided, that such obligations are backed by the full faith and credit
of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment of
principal and interest by, FHLMC, FNMA or the Federal Farm Credit System,
provided, that any such obligation, at the time of purchase or contractual
commitment providing for the purchase thereof, is qualified by each Rating
Agency as an investment of funds backing securities rated "AAA" in the case of
S&P and Fitch (the initial rating of the Class A Certificates);
(c) demand and time deposits in or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, provided, that the short-term deposit ratings
and/or long-term unsecured debt obligations of such depository institution or
trust company (or in the case of the principal depository institutions in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company) have, in the case of commercial paper, the
highest rating available for such securities by each Rating Agency and, in the
case of long-term unsecured debt obligations, one of the two highest ratings
available for such securities by each Rating Agency, or in each case such lower
rating as will not result in the downgrading or withdrawal of the rating or
ratings then assigned to any Class of Certificates by any Rating Agency but in
no event less than the initial rating of the Senior Certificates;
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(d) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving one of the two highest
long-term debt ratings available for such securities by each Rating Agency, or
such lower rating as will not result in the downgrading or withdrawal of the
rating or ratings then assigned to any Class of Certificates by any Rating
Agency;
(e) commercial or finance company 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) that is rated by each Rating Agency in its highest
short-term unsecured rating category at the time of such investment or
contractual commitment providing for such investment, and is issued by a
corporation the outstanding senior long-term debt obligations of which are then
rated by each Rating Agency in one of its two highest long-term unsecured rating
categories, or such lower rating as will not result in the downgrading or
withdrawal of the rating or ratings then assigned to any Class of Certificates
by any Rating Agency but in no event less than the initial rating of the Senior
Certificates;
(f) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation rated in one of the two highest rating levels
available to such issuers by each Rating Agency at the time of such investment,
provided, that any such agreement must by its term provide that it is terminable
by the purchaser without penalty in the event any such rating is at any time
lower than such level;
(g) repurchase obligations with respect to any security described in
clause (a) or (b) above entered into with a depository institution or trust
company (acting as principal) meeting the rating standards described in (c)
above;
(h) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of America
or any State thereof and rated by each Rating Agency in one of its two highest
long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment; provided, however, that
securities issued by any such corporation will not be Eligible Investments to
the extent that investment therein would cause the outstanding principal amount
of securities issued by such corporation that are then held as part of the
Certificate Account to exceed 20% of the aggregate principal amount of all
Eligible Investments then held in the Certificate Account;
(i) units of taxable money market funds (including those for which the
Trustee or any affiliate thereof receives compensation with respect to such
investment) which funds have been rated by each Rating Agency in its highest
rating category or which have been designated in writing by each Rating Agency
as Eligible Investments with respect to this definition;
(j) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each Rating Agency as a permitted investment
of funds backing securities having ratings equivalent to the initial rating of
the Class A Certificates; and
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(k) such other obligations as are acceptable as Eligible Investments to
each Rating Agency;
provided, however, that such instrument continues to qualify as a "cash flow
investment" pursuant to Code Section 860G(a)(6) and that no instrument or
security shall be an Eligible Investment if (i) such instrument or security
evidences a right to receive only interest payments or (ii) the right to receive
principal and interest payments derived from the underlying investment provides
a yield to maturity in excess of 120% of the yield to maturity at par of such
underlying investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Escrow Account: As defined in Section 3.4.
Escrow Payment: Any payment received by the Servicer for the account of
any Mortgagor for application toward the payment of taxes, insurance premiums,
assessments and similar items in respect of the related Mortgaged Property.
Event of Default: Any event of default as specified in Section 7.1.
Excess Liquidation Proceeds: With respect to any Distribution Date, the
excess, if any, of aggregate Liquidation Proceeds in the applicable Prepayment
Period over the amount that would have been received if a Payoff had been made
on the last day of such applicable Prepayment Period with respect to each Loan
which became a Liquidated Loan during such applicable Prepayment Period.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
Federal Funds Rate: means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding Business Day,
the rate for such day will be the arithmatic mean as determined by the Trustee
of the rates for the last transaction in overnight Federal funds arranged before
9:00 a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Trustee.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: Federal Home Loan Mortgage Corporation, or any successor
thereto.
Fitch: Fitch IBCA, Inc. provided, that at any time it be a Rating
Agency.
FNMA: Federal National Mortgage Association, or any successor thereto.
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Fraud Coverage: As of the Cut-Off Date approximately $2,477,608, and
thereafter, the Fraud Coverage will generally be equal to (1) prior to the third
Anniversary, an amount equal to 1.00% of the aggregate principal balance of all
Loans as of the Cut-Off Date minus the aggregate amounts allocated to the
Certificates with respect to Fraud Losses on such Loans up to such date of
determination and (2) from the third to the fifth Anniversary, an amount equal
to (a) 0.50% of the aggregate principal balance of all of the Loans as of the
most recent Anniversary minus (b) the aggregate amounts allocated to the
Certificates with respect to Fraud Losses on the Loans since the most recent
Anniversary up to such date of determination. On and after the fifth
Anniversary, the Fraud Coverage will be zero. Fraud Coverage may be reduced upon
written confirmation from each Rating Agency that such reduction will not
adversely affect the then current ratings assigned to the Certificates by each
Rating Agency.
Fraud Loss: The occurrence of a loss on a Loan arising from any action,
event or state of facts with respect to such Loan which, because it involved or
arose out of any dishonest, fraudulent, criminal, negligent or knowingly
wrongful act, error or omission by the Mortgagor, originator (or assignee
thereof) of such Loan, Lender, or the Servicer, would result in an exclusion
from, denial of, or defense to coverage which otherwise would be provided by an
insurance policy previously issued with respect to such Loan.
Independent: When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor and the Servicer, (ii)
does not have any direct financial interest or any material indirect financial
interest in the Depositor or the Servicer or any Affiliate of either and (iii)
is not connected with the Depositor or the Servicer as an officer, employee,
promotor, underwriter, trustee, partner, director or person performing similar
functions.
Indirect DTC Participants: Entities such as banks, brokers, dealers or
trust companies that clear through or maintain a custodial relationship with a
DTC Participant, either directly or indirectly.
Installment Due Date: The first day of the month in which the related
Distribution Date occurs.
Insurance Proceeds: Amounts paid or payable by the insurer under any
insurance policy (including any replacement policy permitted under this
Agreement), covering any Loan or Mortgaged Property, including, without
limitation, any flood insurance policy, primary mortgage insurance policy or
hazard insurance policy required pursuant to Section 3.5, any title insurance
policy required pursuant to Section 2.3, and any FHA insurance policy or VA
guaranty.
Interest Accrual Period: For all Classes or Certificates, the calendar
month preceding the month in which the Distribution Date occurs.
Interest Distribution Amount: On any Distribution Date, for any Class
of Certificates (other than the Principal Only Certificate and Principal Only
Component), the amount of interest accrued on the respective Class Principal
Balance, Component Principal Balance or Component Notional
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Amount, as applicable, at 1/12th of the related Remittance Rate for such Class
or Component during the applicable Prepayment Period, before giving effect to
allocations of Realized Losses for the applicable Prepayment Period or
distributions to be made on such Distribution Date, reduced by Uncompensated
Interest Shortfall and the interest portion of Realized Losses allocated to such
Class pursuant to the definition of "Uncompensated Interest Shortfall" and
Section 3.20, provided, however, that (a) in the case of the Class A-6
Certificates, such amount shall be reduced by the Class A-6 Accrual Amount and
(b) in the case of Component A-5-3 of the Class A-5 Certificates, such amount
shall be reduced by the Component A-5-3 Accrual Amount. The Interest
Distribution Amount for Component A-5-4 of the Class A-5 Certificates and the
Class A-7 Certificates on any Distribution Date shall equal zero.
Interest Only Components: Component A-5-1, Component A-5-2 and
Component A-5-5 of the Class A-5 Certificates, which will not be entitled to
receive principal.
Interested Person: The Depositor, the Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
Junior Subordinate Certificates: The Class B-3, B-4 and B-5
Certificates, collectively.
Liquidated Loan: A Loan as to which the Servicer has determined in
accordance with its customary servicing practices that all amounts which it
expects to recover from or on account of such Loan, whether from Insurance
Proceeds, Liquidation Proceeds or otherwise, have been recovered. For purposes
of this definition, acquisition of a Mortgaged Property by the Trust Fund shall
not constitute final liquidation of the related Loan.
Liquidation Expenses: Expenses incurred by the Servicer in connection
with the liquidation of any Defaulted Loan or property acquired in respect
thereof, including, without limitation, legal fees and expenses, any
unreimbursed amount expended by the Servicer pursuant to Section 3.7 respecting
the related Loan and any unreimbursed expenditures for real property taxes or
for property restoration or preservation relating to the Mortgaged Property that
secured such Loan.
Liquidation Principal: The principal portion of Liquidation Proceeds
received (exclusive of the Discount Fractional Principal Amount) with respect to
each Loan which became a Liquidated Loan (but not in excess of the Principal
Balance thereof) during the applicable Prepayment Period.
Liquidation Proceeds: Amounts after deduction of amounts reimbursable
under Section 3.7 received and retained in connection with the liquidation of
Defaulted Loans (including the disposition of REO Property), whether through
foreclosure or otherwise, other than Insurance Proceeds.
Living Holder: A Beneficial Holder of a Class A-9 Certificate who is
not a Deceased Holder.
Loans: The Mortgages and the related Mortgage Notes, each transferred
and assigned to the Trustee pursuant to the provisions hereof as from time to
time are held as part of the Trust Fund, as
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so identified in the Loan Schedule. Each of the Loans is referred to
individually in this Agreement as a "Loan".
Loan Schedule: The schedule, as amended from time to time, of Loans
attached hereto as Exhibit D, which shall set forth as to each Loan the
following, among other things:
(i) the loan number of the Loan and name of the
related Mortgagor;
(ii) the street address of the Mortgaged Property
including city, state and zip code;
(iii) the Mortgage Interest Rate as of the Cut-Off
Date;
(iv) the original term and maturity date of the
related Mortgage Note;
(v) the original Principal Balance;
(vi) the first payment date;
(vii) the Monthly Payment in effect as of the
Cut-Off Date;
(viii) the date of the last paid installment of
interest;
(ix) the unpaid Principal Balance as of the close
of business on the Cut-Off Date;
(x) the Loan-to-Value ratio at origination and
as of the Cut-Off Date;
(xi) the type of property;
(xii) the nature of occupancy at origination;
(xiii) the county in which Mortgaged Property is
located, if available; and
(xiv) the closing date.
Loan-to-Value Ratio: The original principal amount of a Loan divided by
the Original Value; however, references to "current Loan-to-Value Ratio" shall
mean the then current Principal Balance of a Loan divided by the Original Value.
Monthly Payment: The scheduled payment of principal and interest on a
Loan which is due on the related Due Date for such Loan after giving effect to
any reduction in the amount of interest collectible from any Mortgagor pursuant
to the Relief Act.
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Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage File: The following documents or instruments with respect to
each Loan transferred and assigned pursuant to Section 2.1:
(i) The original Mortgage Note bearing all
intervening endorsements endorsed, "Pay to the order of Chase
Bank of Texas, National Association, as Trustee, for the
benefit of the Certificateholders of ABN AMRO Mortgage
Corporation Series 1999-3 Attn: Corporate Trust Department,
600 Travis Street, Houston, TX 77002, without recourse" and
signed in the name of the Seller by an Authorized Officer
showing an unbroken chain of title from the originator thereof
to the person endorsing;
(ii) (a) The original Mortgage with evidence of
recording thereon, and if the Mortgage was executed pursuant
to a power of attorney, a certified true copy of the power of
attorney certified by the recorder's office, with evidence of
recording thereon, or certified by a title insurance company
or escrow company to be a true copy thereof; provided, that if
such original Mortgage or power of attorney cannot be
delivered with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage
has been lost, the Seller shall deliver or cause to be
delivered to the Purchaser a true and correct copy of such
Mortgage, together with (1) in the case of a delay caused by
the public recording office, an Officer's Certificate signed
by a Responsible Officer of the Seller stating that such
original Mortgage has been dispatched to the appropriate
public recording official for recordation or (2) in the case
of an original Mortgage that has been lost, a certificate by
the appropriate county recording office where such Mortgage is
recorded or from a title insurance company or escrow company
indicating that such original was lost and the copy of the
original mortgage is a true and correct copy;
(b) The original Assignment to "Chase Bank of Texas,
National Association, as Trustee" which assignment shall be in form and
substance acceptable for recording, or a copy certified by the Seller as a true
and correct copy of the original Assignment which has been sent for recordation.
Subject to the foregoing, such assignments may, if permitted by law, be by
blanket assignments for Loans covering Mortgaged Properties situated within the
same county. If the Assignment is in blanket form, a copy of the Assignment
shall be included in the related individual Mortgage File;
(iii) The originals of any and all instruments that
modify the terms and conditions of the Mortgage Note,
including but not limited to modification, consolidation,
extension and assumption agreements including any adjustable
rate mortgage (ARM) rider, if any:
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(iv) The originals of all required intervening
assignments, if any, with evidence of recording thereon, and
if such assignment was executed pursuant to a power of
attorney, a certified true copy of the power of attorney
certified by the recorder's office, with evidence of recording
thereon, or certified by a title insurance company or escrow
company to be a true copy thereof; provided, that if such
original assignment or power of attorney cannot be delivered
with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office
where such original assignment has been delivered for
recordation or because such original assignment has been lost,
the Seller shall deliver or cause to be delivered to the
Purchaser a true and correct copy of such assignment, together
with (a) in the case of a delay caused by the public recording
office, an Officer's Certificate signed by a Responsible
Officer of the Seller stating that such original assignment
has been dispatched to the appropriate public recording
official for recordation or (b) in the case of an original
assignment that has been lost, a certificate by the
appropriate county recording office where such assignment is
recorded or from a title insurance company or escrow company
indicating that such original was lost and the copy of the
original assignment is a true and correct copy;
(v) The original mortgage policy of title insurance
(including, if applicable, the endorsement relating to the
negative amortization of the Loans) or in the event such
original title policy is unavailable, any one of an original
title binder, an original preliminary title report or an
original title commitment or a copy thereof certified by the
title company with the original policy of title insurance to
follow within 180 days of the Closing Date;
(vi) The primary mortgage insurance certificate, if
any;
(vii) Hazard insurance certificates and copies of the
hazard insurance policy and, if applicable, flood insurance
policy; and
(viii) Any and all other documents, opinions and
certificates executed and/or delivered by the related
Mortgagor and/or its counsel in connection with the
origination of such Mortgage.
Mortgage Interest Rate: For any Loan, the per annum rate at which
interest accrues on such Loan pursuant to the terms of the related Mortgage Note
without regard to any reduction thereof as a result of the Relief Act.
Mortgage Note: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Loan.
Mortgage Pool: All of the Loans.
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Mortgaged Property: With respect to any Loan, the real property,
together with improvements thereto, securing the indebtedness of the Mortgagor
under the related Loan.
Mortgagor: The obligor on a Mortgage Note.
Nonrecoverable Advance: With respect to any Loan, any Advance which the
Servicer shall have determined to be a Nonrecoverable Advance pursuant to
Section 4.4 and which was, or is proposed to be, made by such Servicer.
Non-U.S. Person: A Person that is not a U.S. Person.
Officer's Certificate: With respect to any Person, a certificate signed
both by the Chairman of the Board, the President or a Vice-President, and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be outside or
salaried counsel for the Depositor or the Servicer, or any affiliate of the
Depositor or the Servicer, acceptable to the Trustee; provided, that with
respect to REMIC matters, matters relating to the determination of Eligible
Accounts or matters relating to transfers of Certificates, such counsel shall be
Independent.
Original Value: With respect to any Loan other than a Loan originated
for the purpose of refinancing an existing mortgage debt, the lesser of (a) the
Appraised Value (if any) of the Mortgaged Property at the time the Loan was
originated or (b) the purchase price paid for the Mortgaged Property by the
Mortgagor. With respect to a Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the Appraised Value
of the Mortgaged Property at the time the Loan was originated or the appraised
value at the time the refinanced mortgage debt was incurred.
OTS: The Office of Thrift Supervision, or any successor thereto.
Ownership Interest: As defined in Section 5.1(b)
Pass-Through Entity: As defined in Section 5.1(b)
Pass-Through Rate: For each Loan, a rate equal to the Mortgage Interest
Rate for such Loan less the applicable per annum percentage rate of the
Servicing Fee. For each Loan, any calculation of monthly interest at such rate
shall be based upon annual interest at such rate (computed on the basis of a
360-day year of twelve 30-day months) on the unpaid Principal Balance of the
related Loan divided by twelve, and any calculation of interest at such rate by
reason of a Payoff shall be based upon annual interest at such rate on the
outstanding Principal Balance of the related Loan multiplied by a fraction, the
numerator of which is the number of days elapsed from the Due Date of the last
scheduled payment of principal and interest to, but not including, the date of
such Payoff,
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and the denominator of which is (a) for Payoffs received on a Due Date, 360, and
(b) for all other Payoffs, 365.
Paying Agent: Any paying agent appointed by the Trustee pursuant to
Section 4.10. Initially, the Paying Agent shall be LaSalle National Bank.
Payoff: Any Mortgagor payment of principal on a Loan equal to the
entire outstanding Principal Balance of such Loan, if received in advance of the
last scheduled Due Date for such Loan and accompanied by an amount of interest
equal to accrued unpaid interest on the Loan to the date of such
payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each Loan on
which a Payoff was received by the Servicer during the Prepayment Period, the
aggregate of the interest earned by Servicer from investment of each such Payoff
from the date of receipt of such Payoff until the last day of such Prepayment
Period (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a Loan for
which a Payoff was received by the Servicer during the Prepayment Period, an
amount of interest thereon at the applicable Pass-Through Rate from the first
day of such Prepayment Period to the date of receipt thereof.
Percentage Interest: (a) With respect to the right of each Certificate
of a particular Class in the distributions allocated to such Class, "Percentage
Interest" shall mean the percentage undivided beneficial ownership interest
evidenced by such Certificate of such Class, which percentage shall equal:
(i) with respect to any Regular Interest Certificate,
its Certificate Principal Balance divided by the applicable
Class Principal Balance; and
(ii) with respect to the Class R Certificate, the
percentage set forth on the face of such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.9, 7.1, 7.3, 8.1, 8.3, 10.1 and 10.3, "Percentage Interest" shall
mean the percentage undivided beneficial interest evidenced by such Certificate
in the Trust Fund, which for purposes of such rights only shall equal:
(i) with respect to any Certificate, the product of
(x) 100.00% and (y) the percentage calculated by dividing its
Certificate Principal Balance by the Aggregate Certificate
Principal Balance; and
(ii) with respect to the Class R Certificate, zero.
Permitted Transferee: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State or
any political subdivision thereof, or any
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agency or instrumentality of any of the foregoing, (ii) a foreign government or
International Organization, or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives described
in Code Section 521) which is exempt from the taxes imposed by Chapter 1 of the
Code (unless such organization is subject to the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Code Section 1381(a)(2)(C), (v) any electing
large partnership under Section 775 of the Code, (vi) any Person from whom the
Trustee or the Certificate Registrar has not received an affidavit to the effect
that it is not a "disqualified organization" within the meaning of Section
860E(e)(5) of the Code, and (vii) any other Person so designated by the
Depositor based upon an Opinion of Counsel that the transfer of an Ownership
Interest in a Residual Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "International Organization" shall have
the meanings set forth in Code Section 7701 or successor provisions. A
corporation shall not be treated as an instrumentality of the United States or
of any State or political subdivision thereof if all of its activities are
subject to tax, and, with the exception of the FHLMC, a majority of its board of
directors is not selected by such governmental unit.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Planned Principal Balance: For any Distribution Date, the amount set
forth in the table attached hereto as Exhibit O for such Distribution Date, for
the Class A-1, Class A-2 and Class A-3 Certificates.
Prepaid Monthly Payment: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Loan on its scheduled
Due Date and held in the related Custodial Account for P&I until the Withdrawal
Date following its scheduled Due Date.
Prepayment Period: The calendar month immediately preceding any
Distribution Date.
Principal Balance: At the time of any determination, the principal
balance of a Loan remaining to be paid at the close of business on the Cut-Off
Date, after deduction of all principal payments due on or before the Cut-Off
Date whether or not paid, reduced by all amounts distributed or to be
distributed to Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such Loan.
In the case of a Substitute Loan, "Principal Balance" shall mean, at
the time of any determination, the principal balance of such Substitute Loan
transferred to the Trust Fund on the date of substitution, reduced by all
amounts distributed or to be distributed to Certificateholders through the
Distribution Date in the month of determination that are reported as allocable
to principal of such Substitute Loan.
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The Principal Balance of a Loan (including a Substitute Loan) shall not
be adjusted solely by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period. Whenever a Realized Loss has been
incurred with respect to a Loan during a calendar month, the Principal Balance
of such Loan shall be reduced by the amount of such Realized Loss as of the
Distribution Date next following the end of such calendar month after giving
effect to the allocation of Realized Losses and distributions of principal to
the Certificates.
Principal Only Certificate: Class A-7 Certificates.
Principal Only Component: Component A-5-4 of the Class A-5
Certificates.
Principal Payment: Any payment of principal on a Loan other than a
Principal Prepayment.
Principal Payment Amount: On any Distribution Date and for the Loans,
the sum with respect to the Loans of (i) the scheduled principal payments on the
Loans due on the related Due Date, (ii) the principal portion of repurchase
proceeds received with respect to any Loan which was repurchased by the
Depositor pursuant to a Purchase Obligation or as permitted by this Agreement
during the applicable Prepayment Period, and (iii) any other unscheduled
payments of principal which were received with respect to any Loan during the
applicable Prepayment Period, other than Payoffs, Curtailments and Liquidation
Principal.
Principal Prepayment: Any payment of principal on a Loan which
constitutes a Payoff or a Curtailment.
Principal Prepayment Amount: On any Distribution Date and for the
Loans, the sum with respect to the Loans of (i) Curtailments received during the
applicable Prepayment Period from such Loans and (ii) Payoffs received during
the applicable Prepayment Period from the Loans.
Pro Rata Allocation: The allocation of the principal portion of losses
relating to a Loan to the Senior Certificates (other than the Principal Only
Component and the Interest Only Components) and to the Subordinate Certificates
(in the limited circumstances described below) pro rata according to their
respective Certificate Principal Balances or Component Principal Balances
(except if the loss is recognized with respect to a Discount Loan, in which
event the applicable Discount Fraction of such loss will be allocated to
Component A-5-4 of the Class A-5 Certificates, and the remainder of such loss
will be allocated as described above) or, in the case of any of the Accrual
Certificate or Accrual Component, the Certificate Principal Balance of such
Certificate or the Component Principal Balance of such Component on the Closing
Date, if lower, and the allocation of the interest portion of such losses to the
Certificates (other than the Principal Only Certificate and Principal Only
Component) pro rata according to the amount of interest accrued but unpaid on
each such Class or Component in reduction thereof.
Purchase Obligation: An obligation of the Depositor to repurchase Loans
under the circumstances and in the manner provided in Section 2.2 or Section
2.3.
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Purchase Price: With respect to any Loan to be purchased pursuant to a
Purchase Obligation, or any Loan to be purchased or repurchased relating to an
REO Property, an amount equal to the sum of the Principal Balance thereof, and
unpaid accrued interest thereon, if any, to the last day of the calendar month
in which the date of repurchase occurs at a rate equal to the applicable Pass-
Through Rate; provided, however, that no Loan shall be purchased or required to
be purchased pursuant to Section 2.3, or more than two years after the Closing
Date under Section 2.2, unless (a) the Loan to be purchased is in default, or
default is in the judgment of the Depositor reasonably imminent, or (b) the
Depositor, at its expense, delivers to the Trustee an Opinion of Counsel to the
effect that the purchase of such Loan will not give rise to a tax on a
prohibited transaction, as defined in Section 860F(a) of the Code; provided,
further, that in the case of clause (b) above, the Depositor will use its
reasonable efforts to obtain such Opinion of Counsel if such opinion is
obtainable.
Random Lot: With respect to any Distribution Date on which a mandatory
distribution is to be made on any Class A-9 Certificate (as described in Section
4.1(e)), the method by which the Depository will determine which Class A-9
Certificate will be paid principal, using its established random lot procedures
or, if such Certificates are no longer represented by a Book-Entry Certificate,
using the Paying Agent's, or if no Paying Agent has been appointed hereunder,
the Trustee's procedures.
Rating Agency: Initially, each of S&P and Fitch, thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Depositor, or their respective successors in
interest.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by each Rating Agency.
Realized Loss: For any Distribution Date, with respect to any Loan
which became a Liquidated Loan during the related applicable Prepayment Period,
the sum of (i) the principal balance of such Loan remaining outstanding after
the application of Liquidation Proceeds and the principal portion of
Nonrecoverable Advances actually reimbursed with respect to such Loan (the
principal portion of such Realized Loss), and (ii) the accrued interest on such
Loan remaining unpaid and the interest portion of Nonrecoverable Advances
actually reimbursed with respect to such Loan (the interest portion of such
Realized Loss). For any Distribution Date, with respect to any Loan which is not
a Liquidated Loan, the amount of the Bankruptcy Loss incurred with respect to
such Loan as of the related Due Date.
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Regular Interest Certificates: The Certificates, other than the Class R
Certificate.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
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Relief Act Interest Shortfall: With respect to any Distribution Date
and Loan, any reduction in the amount of interest collectible on such Loan for
the most recently ended calendar month immediately preceding such Distribution
Date as a result of the application of the Relief Act.
REMIC: A real estate mortgage investment conduit, as such term is
defined in the Code.
REMIC I: The pool of assets (other than any Escrow Account or Accounts)
consisting of the Trust Fund.
REMIC I Regular Interests: The regular interests in REMIC I as
described in Section 2.4 of this Agreement.
REMIC II: The pool of assets consisting of the REMIC I Regular
Interests and all payments of principal or interest on or with respect to the
REMIC I Regular Interests after the Cut-Off Date.
REMIC Provisions: Sections 860A through 860G of the Code, related Code
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Rate: For each Class of Certificates or Components, the per
annum rate set forth as the Remittance Rate for such Class or Component in the
Preliminary Statement hereto.
REO Property: A Mortgaged Property, title to which has been acquired by
the Servicer on behalf of the Trust Fund through foreclosure, deed in lieu of
foreclosure or otherwise.
Residual Certificate: The Class R Certificate, which is being issued in
a single class. Components R-1 and R-2 of the Class R Certificate is hereby each
designated the sole Class of "residual interests" in REMIC I and REMIC II,
respectively, for purposes of Section 860G(a)(2) of the Code.
Residual Distribution Amount: On any Distribution Date, any portion of
the Available Distribution Amount remaining after all distributions to the
Certificates pursuant to the definition of Certificate Distribution Amount. Upon
termination of the obligations created by this Agreement and the Trust Fund
created hereby, the amounts which remain on deposit in the Certificate Account
after payment to the Certificateholders of the amounts set forth in Section 9.1
of this Agreement, and subject to the conditions set forth therein.
Responsible Officer: When used with respect to the Trustee or any
Seller, the Chairman or Vice-Chairman of the Board of Directors or Trustees, the
Chairman or Vice-Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees, the President, the Chairman of the Committee on Trust
Matters, any Vice-President, any Assistant Vice-President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust Officer, the Controller,
any Assistant Controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and in each case having direct responsibility for the administration of
this
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Agreement, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to the Servicer,
the Chairman or Vice-Chairman of the Board of Directors or Trustees, the
Chairman or Vice-Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees, the President, any Vice-President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Controller and
any Assistant Controller or any other officer of the Servicer customarily
performing functions similar to those performed by any of the above-designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to the Depositor
or any other Person, the Chairman or Vice-Chairman of the Board of Directors,
the Chairman or Vice-Chairman of any executive committee of the Board of
Directors, the President, any Vice-President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, or any other officer of the
Depositor customarily performing functions similar to those performed by any of
the above-designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Rounding Account: The separate trust account established by the deposit
as of the Closing Date of $999.99 and maintained by the Trustee pursuant to
Section 3.21, which account shall bear a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustee on
behalf of the Class A-9 Certificateholders, or any other account serving a
similar function acceptable to each Rating Agency, and which account provides
that the Trustee may make, or cause to be made, withdrawals as provided in
Section 3.21 hereof.
Rounding Amount: With respect to the Rounding Account, the amount of
funds, if any, needed to be withdrawn from such account and used to round the
amount of any principal distributions to any of the Class A-9 Certificates on
any Distribution Date upward to the next higher integral multiple of $1,000.
S&P: Standard & Poor's Rating Services, a division of the McGraw Hill
Companies, Inc. provided, that at any time it be a Rating Agency.
Scheduled Principal Balance: With respect to any Loan as of any
Distribution Date, the unpaid principal balance of such Loan as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such schedule by reason of bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period) as of the first day of the month preceding the
month of such Distribution Date, after giving effect to any previously applied
Curtailments, the payment of principal due on such first day of the month and
any reduction of the principal balance of such Loan by a bankruptcy court,
irrespective of any delinquency in payment by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Seller: Standard Federal Bank.
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Senior Certificates: The Class A and Class R Certificates,
collectively.
Senior Liquidation Amount: The aggregate, for each Loan which became a
Liquidated Loan during the applicable Prepayment Period, of the lesser of: (i)
the Senior Percentage of the Principal Balance of such Loan (exclusive of the
Discount Fraction thereof, if applicable), and (ii) the Senior Prepayment
Percentage of the Liquidation Principal with respect to such Loan.
Senior Percentage: As of the Closing Date, approximately 95.68%, and
thereafter, with respect to any Distribution Date, the sum of the class
Principal Balances of the Senior Certificates (other than the Principal Only
Component) divided by aggregate Scheduled Principal Balance of all Loans
(reduced by the Discount Fraction thereof), in each case immediately prior to
such Distribution Date.
Senior Prepayment Percentage: (i) On any Distribution Date occurring
before the Distribution Date in the month of May, 2004, 100%; (ii) on any other
Distribution Date on which the Senior Percentage for such Distribution Date
exceeds the initial Senior Percentage as of the Cut-Off Date, 100%; and (iii) on
any other Distribution Date in each of the months of May, 2004 and thereafter,
100%, unless:
(a) the mean aggregate Principal Balance of the Loans which
are 60 or more days delinquent (including loans in foreclosure and
property held by the Trust Fund) for each of the immediately preceding
six calendar months is less than or equal to 50% of the Subordinate
Amount as of such Distribution Date, and
(b) cumulative Realized Losses on the Loans allocated to the
Subordinate Certificates are less than or equal to the following
amounts:
<TABLE>
<CAPTION>
PERCENTAGE OF THE SUBORDINATE
DISTRIBUTION DATE OCCURRING IN AMOUNT AS OF THE CUT-OFF DATE
------------------------------ -----------------------------
<S> <C>
May 2004 through April 2005.................................... 30%
May 2005 through April 2006.................................... 35%
May 2006 through April 2007.................................... 40%
May 2007 through April 2008.................................... 45%
May 2008 and thereafter........................................ 50%
</TABLE>
in which case, the Senior Prepayment Percentage shall be as follows:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN SENIOR PREPAYMENT PERCENTAGE
------------------------------ ----------------------------
<S> <C>
May 1999 through April 2004................. 100%
May 2004 through April 2005................. SENIOR PERCENTAGE + 70% of SUBORDINATE PERCENTAGE
May 2005 through April 2006................. SENIOR PERCENTAGE + 60% of SUBORDINATE PERCENTAGE
May 2006 through April 2007................. SENIOR PERCENTAGE + 40% of SUBORDINATE PERCENTAGE
May 2007 through April 2008................. SENIOR PERCENTAGE + 20% of SUBORDINATE PERCENTAGE
May 2008 and thereafter..................... SENIOR PERCENTAGE
</TABLE>
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If on any Distribution Date the allocation to the Certificates (other
than the Principal Only Component) of Principal Prepayments in the percentage
required would reduce the sum of the Class Principal Balances of the
Certificates (other than the Principal Only Component) below zero, the Senior
Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce such sum to zero. Notwithstanding the foregoing,
however, on each Distribution Date, the Principal Only Component will receive
the Discount Fraction of all principal payments, including, without limitation,
Principal Prepayments, received in respect of each Discount Loan.
Senior Principal Amount: For any Distribution Date, an amount equal to
the sum of (a) the Senior Percentage of the Principal Payment Amount for the
Loans (exclusive of the Discount Fractional Principal Amount), (b) the Senior
Prepayment Percentage of the Principal Prepayment Amount for the Loans
(exclusive of the Discount Fractional Principal Amount) and (c) the Senior
Liquidation Amount.
Servicer: LaSalle Home Mortgage Corporation, an Illinois corporation,
or any successor thereto appointed as provided pursuant to Section 7.5, acting
to service and administer such Loans pursuant to Section 3.1.
Servicer's Section 3.10 Report: A report delivered by the Servicer to
the Trustee or the Certificate Administrator pursuant to Section 3.10.
Servicing Fee: For each Loan, the fee paid to the Servicer to perform
primary servicing functions with respect to such Loan, equal to the per annum
rate of 0.2500% for each Loan in the Loan Schedule on the outstanding Principal
Balance of such Loan.
Servicing Officer: Any individual involved in, or responsible for, the
administration and servicing of the Loans whose name and specimen signature
appear on a list of servicing officers furnished to the Trustee on the Closing
Date by the Servicer in the form of an Officer's Certificate, as such list may
from time to time be amended.
Special Hazard Coverage: As of the Cut-Off Date approximately
$3,067,423, and thereafter on each anniversary of the Cut-Off Date, the Special
Hazard Coverage shall be reduced, but not increased, to an amount equal to the
lesser of (1) the greatest of (a) the aggregate principal balance of the Loans
located in the single California zip code area containing the largest aggregate
principal balance of the Loans, (b) 1% of the aggregate unpaid principal balance
of the Loans and (c) twice the unpaid principal balance of the largest single
Loan, in each case calculated as of the Due Date in the immediately preceding
month, and (2) the initial Special Hazard Coverage amount of $3,067,423 as
reduced by the Special Hazard Losses allocated to the Certificates since the
Cut-Off Date. Special Hazard Coverage may be reduced upon written confirmation
from each Rating Agency that such reduction will not adversely affect the then
current ratings assigned to the Certificates by each Rating Agency.
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Special Hazard Loss: The occurrence of any direct physical loss or
damage to a Mortgaged Property not covered by a standard hazard maintenance
policy with extended coverage which is caused by or results from any cause
except: (i) fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, vandalism, aircraft, vehicles, smoke, sprinkler
leakage, except to the extent of that portion of the loss which was uninsured
because of the application of a co-insurance clause of any insurance policy
covering these perils; (ii) normal wear and tear, gradual deterioration,
inherent vice or inadequate maintenance of all or part thereof; (iii) errors in
design, faulty workmanship or materials, unless the collapse of the property or
a part thereof ensues and then only for the ensuing loss; (iv) nuclear reaction
or nuclear radiation or radioactive contamination, all whether controlled or
uncontrolled and whether such loss be direct or indirect, proximate or remote or
be in whole or in part caused by, contributed to or aggravated by a peril
covered by this definition of Special Hazard Loss; (v) hostile or warlike action
in time of peace or war, including action in hindering, combating or defending
against an actual, impending or expected attack (a) by any government or
sovereign power (dejure or defacto), or by an authority maintaining or using
military, naval or air forces, (b) by military, naval or air forces, or (c) by
an agent of any such government, power, authority or forces; (vi) any weapon of
war employing atomic fission or radioactive force whether in time of peace or
war; (vii) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such occurrence; or (viii) seizure or destruction under quarantine or
customs regulations, or confiscation by order of any government or public
authority.
Standard Federal Bank: Standard Federal Bank, a Federal Savings Bank.
Subordinate Amount: The excess of the aggregate Scheduled Principal
Balance of the Loans over the Senior Certificate Principal Balance.
Subordinate Certificates: The Class M, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates, collectively, and designated as such on
the face thereof in substantially the form attached hereto as Exhibits A-12
through A-17, respectively and for purposes of this Agreement, the "order of
seniority" from highest to lowest of such certificates shall be the order
designated in the beginning of this definition.
Subordinate Liquidation Amount: The excess, if any, of the aggregate of
Liquidation Principal for all the Loans which became Liquidated Loans during the
applicable Prepayment Period, over the related Senior Liquidation Amount for
such Distribution Date.
Subordinate Percentage: As of the Closing Date approximately 4.32%, and
thereafter, with respect to any Distribution Date, the excess of 100% over the
Senior Percentage for such date.
Subordinate Prepayment Percentage: As of the Closing Date,
approximately 0%, and thereafter, with respect to any Distribution Date, the
excess of 100% over the Senior Prepayment Percentage.
Subordinate Principal Amount: On any Distribution Date, will be equal
to the sum of:
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(1) the Subordinate Percentage of the Principal Payment Amount
(exclusive of the portion thereof attributable to the Discount
Fractional Principal Amount);
(2) the Subordinate Principal Prepayment Amount; and
(3) the Subordinate Liquidation Amount;
provided, however, that the Subordinate Principal Amount shall be reduced by the
amounts required to be distributed to the Principal Only Component with respect
to the Discount Fractional Principal Shortfall on such Distribution Date.
Any reduction in the Subordinate Principal Amount pursuant to the proviso above
shall offset the amount calculated pursuant to clause (1), clause (3) and clause
(2), in such order of priority. On any Distribution Date, the Subordinate
Principal Amount shall be allocated pro rata, by Class Principal Balance, among
the Classes of Subordinate Certificates and paid in the order of distribution to
such Classes pursuant to clause (I)(b) of the definition of "Certificate
Distribution Amount" herein, except as otherwise stated in such definition.
Notwithstanding the foregoing, on any Distribution Date prior to distributions
on such date, if the Subordination Level for any Class of Subordinate
Certificates is less than such percentage as of the Closing Date, the pro rata
portion of the Subordinate Principal Prepayment Amount otherwise allocable to
the Class or Classes junior to such Class will be distributed to the most senior
Class of the Subordinate Certificates for which the Subordination Level is less
than such percentage as of the Closing Date, and to the Classes of Subordinate
Certificates senior thereto, pro rata according to the Class Principal Balances
of such Classes.
Subordinate Principal Prepayment Amount: On any Distribution Date, the
Subordinate Prepayment Percentage of the Principal Prepayment Amount for the
Loans (exclusive of the portion thereof attributable to the Discount Fractional
Principal Amount).
Subordination Level: On any specified date, with respect to any Class
of Subordinate Certificates, the percentage obtained by dividing: (1) the sum of
the Class Principal Balances of all Classes of Certificates which are
subordinate in right of payment to such Class as of such date before giving
effect to distributions or allocations of Realized Losses on the Loans on such
date; by (2) the sum of the Class Principal Balances of all Classes of
Certificates as of such date before giving effect to distributions or
allocations of Realized Losses on the Loans on such date.
Substitute Loan: As defined in Section 2.2.
Targeted Principal Balance: For any Distribution Date, the amount set
forth in the table attached hereto as Exhibit P for such Distribution Date, for
the Class A-4 and Class A-11 Certificates and Components A-5-3 of the Class A-5
Certificates.
Tax Matters Person: The Holder of the Class R Certificate issued
hereunder or any Permitted Transferee of such Class R Certificateholder shall be
the initial "tax matters person" for REMIC I and REMIC II within the meaning of
Section 6231(a)(7) of the Code. For tax years commencing after any transfer of
the Class R Certificate, the holder of the greatest Percentage Interest in the
Class
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R Certificate at year end shall be designated as the Tax Matters Person with
respect to that year. If the Tax Matters Person becomes a Disqualified
Organization, the last preceding Holder of such Authorized Denomination of the
Class R Certificate that is not a Disqualified Organization shall be Tax Matters
Person pursuant to Section 5.1(c). If any Person is appointed as tax matters
person by the Internal Revenue Service pursuant to the Code, such Person shall
be Tax Matters Person.
Transfer: As defined in Section 5.1(b).
Transferee: As defined in Section 5.1(b).
Transferee Affidavit and Agreement: As defined in Section 5.1(c)(i)(B).
Trust Fund: The corpus of the trust created pursuant to Section 2.1 of
this Agreement. The Trust Fund consists of (i) the Loans and all rights
pertaining thereto; (ii) such assets as from time to time may be held by the
Trustee (except amounts representing the Servicing Fee and amounts on deposit in
Escrow Accounts); (iii) such assets as from time to time may be held by the
Servicer in a Custodial Account for P&I related to the Loans (except amounts
representing the Servicing Fee) and the Rounding Account; (iv) property which
secured a Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure after the Cut-Off Date; (v) amounts paid or payable by the insurer
under any FHA insurance policy and proceeds of any VA guaranty and any other
insurance policy related to any Loan or the Mortgage Pool; and (vi) the rights
and remedies of the Depositor contained in Section 8 of the Mortgage Loan
Purchase Agreement dated as of April 28, 1999, between the Seller and the
Depositor.
Trustee: Chase Bank of Texas, National Association, or its
successor-in-interest as provided in Section 8.9, or any successor trustee
appointed as herein provided.
Uncollected Interest: With respect to any Distribution Date for any
Loan on which a Payoff was made by a Mortgagor during the related Prepayment
Period, an amount equal to one month's interest at the applicable Pass-Through
Rate on such Loan less the amount of interest actually paid by the Mortgagor
with respect to such Payoff.
Uncompensated Interest Shortfall: For any Distribution Date, the
excess, if any, of (i) the sum of (a) aggregate Uncollected Interest, (b)
aggregate Curtailment Shortfall and (c) any shortfall in interest collections in
the calendar month immediately preceding such Distribution Date resulting from a
Relief Act Interest Shortfall over (ii) Compensating Interest, which excess
shall be allocated to each Class of Certificates pro rata according to the
amount of interest accrued thereon in reduction thereof.
Underwriters: Lehman Brothers Inc. and ABN AMRO Incorporated.
U.S. 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
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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 U.S. 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 1 of subchapter J of chapter 1 of the Code), and
which was treated as a U.S. Person on August 20, 1996 may elect to continue to
be treated as a U.S. Person notwithstanding the previous sentence.
VA: The Department of Veterans Affairs, formerly known as the Veterans
Administration, or any successor thereto.
Withdrawal Date: The Business Day immediately preceding the related
Distribution Date.
All references to the origination date or original date in the Loan
Schedule with respect to a Loan shall refer to the date upon which the related
Mortgage Note was originated or modified, whichever is later.
ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Trust Fund. The Depositor, concurrently with
the execution and delivery hereof, does hereby irrevocably sell, convey and
assign to the Trustee and REMIC I without recourse all the right, title and
interest of the Depositor in and to the Trust Fund and to REMIC II without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests, for the benefit respectively of REMIC II and the
Certificateholders, including all interest and principal received by the
Depositor with respect to the Loans after the Cut-Off Date (and including
without limitation scheduled payments of principal and interest due after the
Cut-Off Date but received by the Depositor on or before the Cut-Off Date, but
not including payments of principal and interest due on the Loans on or before
the Cut-Off Date). The Depositor, at its own expense, shall file or cause to be
filed protective Form UCC-1 financing statements with respect to the Loans in
the State of Illinois or other applicable jurisdiction, listing itself as
"Debtor" under such financing statement and listing the Trustee, for the benefit
of the Certificateholders, as "Secured Party" under such financing statement.
In connection with such assignment, the Depositor does hereby deliver
to, and deposit with, the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Loan so assigned:
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(i) The original Mortgage Note bearing all
intervening endorsements endorsed, "Pay to the order of Chase
Bank of Texas, National Association, as Trustee, for the
benefit of the Certificateholders of ABN AMRO Mortgage
Corporation Series 1999-3 Attn: Corporate Trust Department,
600 Travis Street, Houston, TX 77002, without recourse" and
signed in the name of the Seller by an Authorized Officer
showing an unbroken chain of title from the originator thereof
to the person endorsing;
(ii) (a) The original Mortgage with evidence of
recording thereon, and if the Mortgage was executed pursuant
to a power of attorney, a certified true copy of the power of
attorney certified by the recorder's office, with evidence of
recording thereon, or certified by a title insurance company
or escrow company to be a true copy thereof; provided, that if
such original Mortgage or power of attorney cannot be
delivered with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage
has been lost, the Seller shall deliver or cause to be
delivered to the Purchaser (with a copy to the Trustee) a true
and correct copy of such Mortgage, together with (1) in the
case of a delay caused by the public recording office, an
Officer's Certificate signed by a Responsible Officer of the
Seller stating that such original Mortgage has been dispatched
to the appropriate public recording official for recordation
or (2) in the case of an original Mortgage that has been lost,
a certificate by the appropriate county recording office where
such Mortgage is recorded or from a title insurance company or
escrow company indicating that such original was lost and the
copy of the original mortgage is a true and correct copy;
(b) The original Assignment to "Chase Bank of Texas, National
Association, as Trustee," which assignment shall be in form and
substance acceptable for recording, or a copy certified by the Seller
as a true and correct copy of the original Assignment which has been
sent for recordation. Subject to the foregoing, such assignments may,
if permitted by law, be by blanket assignments for Loans covering
Mortgaged Properties situated within the same county. If the Assignment
is in blanket form, a copy of the Assignment shall be included in the
related individual Mortgage File.
(iii) The originals of any and all instruments that
modify the terms and conditions of the Mortgage Note,
including but not limited to modification, consolidation,
extension and assumption agreements including any adjustable
rate mortgage (ARM) rider, if any,
(iv) The originals of all required intervening
assignments, if any, with evidence of recording thereon, and
if such assignment was executed pursuant to a power of
attorney, a certified true copy of the power of attorney
certified by the recorder's office, with evidence of recording
thereon, or certified by a title insurance company or escrow
company to be a true copy thereof; provided, that if such
original
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assignment or power of attorney cannot be delivered with
evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where
such original assignment has been delivered for recordation or
because such original Assignment has been lost, the Seller
shall deliver or cause to be delivered to the Purchaser (with
a copy to the Trustee) a true and correct copy of such
Assignment, together with (a) in the case of a delay caused by
the public recording office, an Officer's Certificate signed
by a Responsible Officer of the Seller stating that such
original assignment has been dispatched to the appropriate
public recording official for recordation or (b) in the case
of an original assignment that has been lost, a certificate by
the appropriate county recording office where such assignment
is recorded or from a title insurance company or escrow
company indicating that such original was lost and the copy of
the original assignment is a true and correct copy;
(v) The original mortgagee policy of title insurance
(including, if applicable, the endorsement relating to the
negative amortization of the Loans) or in the event such
original title policy is unavailable, any one of an original
title binder, an original preliminary title report or an
original title commitment or a copy thereof certified by the
title company with the original policy of title insurance to
follow within 180 days of the Closing Date;
(vi) The mortgage insurance certificate;
(vii) Hazard insurance certificates and copies of the
hazard insurance policy and, if applicable, flood insurance
policy; and
(viii) Any and all other documents, opinions and
certificates executed and/or delivered by the related
Mortgagor and/or its counsel in connection with the
origination of such Mortgage.
If the Depositor cannot deliver the original Mortgage with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
because of a delay caused by the public recording office where such original
Mortgage has been delivered for recordation, the Depositor shall deliver to the
Trustee an Officer's Certificate, with a photocopy of such Mortgage attached
thereto, stating that such original Mortgage has been delivered to the
appropriate public recording official for recordation. The Depositor shall
promptly deliver to the Trustee such original Mortgage with evidence of
recording indicated thereon upon receipt thereof from the public recording
official.
The Depositor shall, at its own expense, promptly record or cause to be
recorded in the appropriate public real property or other records each
Assignment referred to in Section 2.1(ii), unless the Depositor delivers to the
Trustee an Independent opinion of counsel admitted to practice law in the state
in which such Mortgaged Property is located to the effect that such recordation
is not necessary to secure the interest in the related Mortgaged Properties
against any other transferee
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or creditor of the Depositor, in which case such Assignments shall be delivered
to the Trustee for the benefit of the Certificateholders in recordable form. If
the Depositor cannot deliver the original Assignment concurrently with the
execution and delivery of this Agreement solely because it is in the process of
being prepared and recorded or because of a delay caused by the public recording
office where such original Assignment has been delivered for recordation, the
Depositor shall deliver a blanket Officer's Certificate covering all such
Assignments stating that such original Assignment is in the process of being
prepared and recorded or it has been delivered to the appropriate public
recording official for recordation and a photocopy of such Assignment. Any such
original recorded Assignment shall be delivered to the Trustee within 180 days
following the execution of this Agreement.
If the Depositor cannot deliver the original title insurance policy
concurrently with the execution and delivery of this Agreement, the Depositor
shall promptly deliver each such original title insurance policy as soon as such
policy becomes available but in no event later than 120 days following the
execution of this Agreement.
All rights arising out of Loans including, without limitation, all
funds received on or in connection with a Loan shall be held by the Depositor in
trust for the benefit of the Certificateholders. The Depositor shall maintain a
complete set of books and records for each Loan which shall be clearly marked to
reflect the ownership of each Loan by the Certificateholders.
It is the express intent of this Agreement that the conveyance of the
Loans by the Depositor to the Trustee as provided in this Section 2.1 be, and be
construed as, a sale of the Loans by the Depositor to the Trustee and that the
sale of the Certificates to the Certificateholders, if they are sold, be, and be
construed as, a sale of a 100% interest in the Loans and the Trust Fund to such
Certificateholders. It is, further, not the intention of this Agreement that
such conveyance be deemed a pledge of the Loans by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of this Agreement, the Loans are held to be
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in the Loans, then (a) this Agreement shall
also be deemed to be a security agreement within the meaning of Articles 8 and 9
of the New York Uniform Commercial Code; (b) the conveyance provided for in this
Section 2.1 shall be deemed to be a grant by the Depositor to the Trustee for
the benefit of the Certificateholders of a security interest in all of the
Depositor's right, title and interest in and to the Loans and all amounts
payable to the holders of the Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Certificate Account, whether in the form of cash, instruments, securities
or other property; (c) the possession by the Trustee or any Custodian of
Mortgage Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "in
possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code; and
(d) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
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intermediaries, bailees or agents (as applicable) of the Trustee for the benefit
of the Certificateholders for the purpose of perfecting such security interest
under applicable law (except that nothing in this clause (d) shall cause any
person to be deemed to be an agent of the Trustee for any purpose other than for
perfection of such security interest unless, and then only to the extent,
expressly appointed and authorized by the Trustee in writing). The Depositor and
the Trustee, upon directions from the Depositor, shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a perfected security interest in Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
The Trustee is authorized to appoint any bank or trust company approved
by the Depositor as Custodian of the documents or instruments referred to under
(i) through (viii) above, and to enter into a Custodial Agreement for such
purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall be
delivered to the Trustee and the Custodian.
Section 2.2 Acceptance by Trustee. The Trustee acknowledges, subject to
the provisions of Section 2.1 and to any document exceptions reported pursuant
to the Trustee's reviews as described below, receipt of the Mortgage Notes, the
Mortgages, the assignments of the Mortgages and the Officer's Certificates
referred to in Section 2.1 above, and declares that it holds and will hold such
documents and the other documents constituting a part of the Mortgage Files
delivered to it as Trustee in trust, upon the trusts herein set forth, for the
use and benefit of all present and future Certificateholders. The Trustee
acknowledges that, as of the date of the execution of this Agreement, the
Mortgage Files have been delivered to the Trustee and the Trustee has conducted
a preliminary review of the Mortgage Files. The Trustee further acknowledges
that such review included a review of the Mortgage Notes to determine that the
appropriate Mortgage Notes have been delivered and endorsed in the manner set
forth in Section 2.1(i). In connection with such review, the Trustee shall have
delivered an exceptions report indicating any discrepancies relating to such
review. In addition, the Trustee agrees, for the benefit of Certificateholders,
to review each Mortgage File within 45 days, or with respect to assignments
which must be recorded, within 180 days, after execution of this Agreement to
ascertain that all required documents set forth in items (i), (ii), (v), (vi)
and, to the extent delivered to the Trustee, items (iii), (iv), (vii) and (viii)
of Section 2.1 have been executed and received, and that such documents relate
to the Loans identified in Exhibit D annexed hereto, and in so doing the Trustee
may rely on the purported due execution and genuineness of any such document and
on the purported genuineness of any signature thereon. The Trustee shall have no
duty to verify or determine whether any Mortgage File should contain documents
described in Sections 2.1(iii), (iv), (vii) and (viii). The Trustee shall be
under no duty or obligation to inspect, review or make any independent
examination of any documents contained in each Mortgage File beyond the review
specifically required herein. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Loans identified on the
Loan Schedule, or (ii) the collectability, insurability, effectiveness or
suitability of any such Loan. If at the conclusion of such 45-day period or
180-day period the Trustee finds any document constituting a part of a Mortgage
File not to have been executed or received or to be unrelated to the Loans
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identified in said Exhibit D (each such finding, a "material defect"), the
Trustee shall promptly notify the Depositor, which shall have a period of 90
days after such notice within which to correct or cure any such material defect;
provided, however, that if the Trustee shall not have received a document by
reason of the fact that such document shall not have been returned by the
appropriate recording office then the Depositor shall have until a date one year
later from the Cut-Off Date to correct or cure such defect. The Depositor hereby
covenants and agrees that, if any such material defect as defined above is not
corrected or cured, the Depositor will, not later than 90 days in the case of
repurchase referred to below or not later than 75 days in the case of a
substitution referred to below after the Trustee's notice to it respecting such
defect either (i) repurchase the related Loan at a price equal to 100% of the
Principal Balance of such Loan (or any property acquired in respect thereof)
plus accrued interest on such Principal Balance at the applicable Pass-Through
Rate to the next scheduled Due Date of such Loan or (ii) substitute for any Loan
to which such material defect relates a different mortgage loan (a "Substitute
Loan") maturing no later than and not more than two years earlier than the Loan
being substituted for and having a principal balance equal to or less than and a
Mortgage Interest Rate equal to or greater than the Mortgage Interest Rate of
the Loan being substituted for, a Loan-to-Value Ratio equal to or less than the
Loan-to-Value Ratio of the Loan being substituted for and otherwise having such
characteristics so that the representations and warranties of the Depositor set
forth in Section 2.3 hereof would not have been incorrect had such Substitute
Loan originally been a Loan; provided, however, that if the Principal Balance of
the original Loan exceeds the principal balance of the Substitute Loan, an
amount equal to that difference shall be deposited by the Depositor in the
Certificate Account; provided, further, however, that no such substitution may
occur after 90 days of the Closing Date unless the Trustee shall have received
from the Depositor an Opinion of Counsel to the effect that such substitution
will not adversely affect the REMIC status of REMIC I or REMIC II or constitute
a prohibited transaction or substitution under the REMIC provisions of the Code,
and, if applicable, within the meaning of the REMIC Provisions of the particular
State, if any, which would impose a tax on the Trust Fund. Monthly Payments due
with respect to Substitute Loans in the month of substitution are not a part of
the Trust Fund and will be retained by the Servicer. The Depositor shall notify
each Rating Agency of any such substitution. For the month of substitution,
distributions to Certificateholders will include the Monthly Payment due on the
Loan being substituted for in such month. The purchase price for the repurchased
Loan or property shall be deposited by the Depositor in the Certificate Account
and in the case of a Substitute Loan, the Mortgage File relating thereto shall
be delivered to the Trustee or the Custodian. Upon receipt by the Trustee of
written notification of such deposit signed by a Servicing Officer or the new
Mortgage File, as the case may be, and an Officer's Certificate that such
repurchase or substitution is in accordance with this Agreement, the Trustee
shall release or cause to be released to the Depositor the related Mortgage File
for the Loan being repurchased or substituted for, as the case may be, and shall
execute and deliver or cause to be executed and delivered such instrument of
transfer or assignment presented to it by the Depositor, in each case without
recourse, as shall be necessary to transfer to the Depositor the Trustee's
interest in such original or repurchased Loan or property and the Trustee shall
have no further responsibility with regard to such Loan. It is understood and
agreed that the obligation of the Depositor to substitute a new Loan for or
repurchase any Loan or property as to which such a material defect in a
constituent document exists shall constitute the sole remedy respecting such
defect available to Certificateholders or the Trustee on behalf of
Certificateholders,
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but such obligation shall survive termination of this Agreement. Neither the
Trustee nor the Custodian shall be responsible for determining whether any
assignment or mortgage delivered pursuant to Section 2.1(ii) is in recordable
form or, if recorded, has been properly recorded.
Section 2.3 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee:
(i) that the information set forth in the Loan
Schedule appearing as an exhibit to this Agreement is true and
correct in all material respects at the date or dates
respecting which such information is furnished as specified
therein;
(ii) that as of the date of the transfer of the Loans
to the Trustee, the Depositor is the sole owner and holder of
each Loan free and clear of all liens, pledges, charges or
security interests of any nature and has full right and
authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same;
(iii) that as of the date of initial issuance of the
Certificates, no payment of principal of or interest on or in
respect of any Loan is 30 days or more past due from the Due
Date of such Loan;
(iv) that to the best of the Depositor's knowledge,
as of the date of the transfer of the Loans to the Trustee,
there is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage;
(v) that as of the date of the initial issuance of
the Certificates, there is no proceeding pending, or to the
best of the Depositor's knowledge, threatened for the total or
partial condemnation of any of the Mortgaged Property and the
Mortgaged Property is free of material damage and is in good
repair and neither the Mortgaged Property nor any improvement
located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation;
(vi) that each Loan complies in all material respects
with applicable state or federal laws, regulations and other
requirements, pertaining to usury, equal credit opportunity
and disclosure laws, and each Loan was not usurious at the
time of origination;
(vii) that to the best of the Depositor's knowledge,
as of the date of the initial issuance of the Certificates,
all insurance premiums previously due and owing with respect
to the Mortgaged Property have been paid and all taxes and
governmental assessments previously due and owing, and which
may become a lien against the Mortgaged Property, with respect
to the Mortgaged Property have been paid;
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(viii) that each Mortgage Note and the related
Mortgage are genuine and each is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance
with its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and
by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law); all parties to the Mortgage Note and the Mortgage had
legal capacity to execute the Mortgage Note and the Mortgage;
and each Mortgage Note and Mortgage have been duly and
properly executed by the Mortgagor;
(ix) that each Mortgage is a valid and enforceable
first lien on the property securing the related Mortgage Note,
and that each Loan is covered by an ALTA mortgagee title
insurance policy or other form of policy or insurance
generally acceptable to FNMA or FHLMC, issued by, and is a
valid and binding obligation of, a title insurer acceptable to
FNMA or FHLMC insuring the originator, its successor and
assigns, as to the lien of the Mortgage in the original
principal amount of the Loan subject only to (a) the lien of
current real property taxes and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the
date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the Mortgaged
Property is located or specifically referred to in the
appraisal performed in connection with the origination of the
related Loan and (c) such other matters to which like
properties are commonly subject which do not individually, or
in the aggregate, materially interfere with the benefits of
the security intended to be provided by the Mortgage;
(x) that as of the initial issuance of the
Certificates, neither the Depositor nor any prior holder of
any Mortgage has, except as the Mortgage File may reflect,
modified the Mortgage in any material respect; satisfied,
cancelled or subordinated such Mortgage in whole or part;
released such Mortgaged Property in whole or in part from the
lien of the Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction;
(xi) that each Mortgaged Property consists of a fee
simple estate or a condominium form of ownership in real
property;
(xii) the condominium projects that include the
condominiums that are the subject of any condominium loan are
generally acceptable to FNMA or FHLMC;
(xiii) no foreclosure action is threatened or has
been commenced (except for the filing of any notice of
default) with respect to the Loan; and except for payment
delinquencies not in excess of 30 days, to the best of the
Depositor's knowledge, 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
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passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation
or event of acceleration; and the Depositor has not waived any
default, breach, violation or event of acceleration;
(xiv) that each Loan was originated on FNMA or FHLMC
uniform instruments for the state in which the Mortgaged
Property is located;
(xv) that based upon a representation by each
Mortgagor at the time of origination or assumption of the
applicable Loan, 100% of the Loans measured by Principal
Balance were to be secured by owner-occupied residences and no
more than 0% of the Loans measured by Principal Balance were
to be secured by non-owner-occupied residences;
(xvi) that an appraisal of each Mortgaged Property
was conducted at the time of origination of the related Loan,
and that each such appraisal was conducted in accordance with
FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables
on at least three properties were obtained;
(xvii) that no Loan had a Loan-to-Value Ratio at
origination in excess of 95%;
(xviii) the Loans were not selected in manner to
adversely affect the interests of the Certificateholders and
the Depositor knows of no conditions which reasonably would
cause it to expect any Loan to become delinquent or otherwise
lose value;
(xix) each Loan was either (A) originated directly by
or closed in the name of either: (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 or (ii) a
mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act or (B) originated or underwritten by an entity
employing underwriting standards consistent with the
underwriting standards of an institution as described in
subclause (A)(i) or (A)(ii) above;
(xx) each Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code without regard to ss.
1.860G-2(f) of the REMIC Provisions or any similar rule;
(xxi) each Loan that has a Loan-to-Value Ratio in
excess of 80% is covered by a primary mortgage insurance
policy; and
(xxii) that no Loan permits negative amortization or
the deferral of accrued interest.
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It is understood and agreed that the representations and warranties set
forth in this Section 2.3 shall survive delivery of the respective Mortgage
Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by
the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the
foregoing representations and warranties (referred to herein as a "breach"),
without regard to any limitation set forth in such representation or warranty
concerning the knowledge of the Depositor as to the facts stated therein, which
breach materially and adversely affects the interests of the Certificateholders
in the related Loan, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
Within 90 days of its discovery or its receipt or any Seller's receipt
of notice of breach, the Depositor shall or shall cause such Seller to cure such
breach in all material respects or shall repurchase the Loan or any property
acquired in respect thereof from the Trustee at a repurchase price equal to 100%
of the Principal Balance of such Loan plus accrued interest on such Principal
Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date
of such Loan or remove such Loan from the Trust Fund and substitute in its place
a Substitute Loan or Loans with the characteristics set forth in Section 2.2
above for Substitute Loans; provided, however, that if such breach would cause
the Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure, repurchase or substitution must occur
within 90 days from the date such breach was discovered; provided, further, that
no substitution (or cure which would constitute a loan modification for federal
income tax purposes) may be effected any later than two years after the Closing
Date; provided, further, that as a pre-condition to any substitution (or cure
which would constitute a loan modification for federal income tax purposes) to
be effected later than 90 days after the Closing Date (and within two years of
the Closing Date), the Trustee shall receive from the Depositor an Opinion of
Counsel to the effect that such substitution (or cure which would constitute a
loan modification for federal income tax purposes) will not adversely affect the
REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under
the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the
relevant State. Except as expressly set forth herein, neither the Trustee nor
the Servicer is under any obligation to discover any breach of the above
mentioned representations and warranties. It is understood and agreed that the
obligation of the Depositor or the Seller to repurchase or substitute any Loan
or property as to which a breach has occurred and is continuing shall constitute
the sole remedy respecting such breach available to Certificateholders or the
Trustee on behalf of Certificateholders, and such obligation shall survive as
the obligation of the Depositor, the Seller or their respective successors.
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Section 2.4 Authentication and Delivery of Certificates; Designation of
Certificates as REMIC Regular and Residual Interests.
(a) The Trustee acknowledges the transfer to the extent
provided herein and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has caused to be
authenticated and delivered to or upon the order of the Depositor, in
exchange for the Trust Fund, Certificates evidencing the entire
ownership of the Trust Fund.
(b) This Agreement shall be construed so as to carry out the
intention of the parties that each of REMIC I and REMIC II be treated
as a REMIC at all times prior to the date on which the Trust Fund is
terminated. The "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC II shall consist of the Class A
Certificates and the Subordinate Certificates. The "residual interest"
(within the meaning of Section 860G(a)(2) of the Code) in REMIC II
shall consist of Component R-2 of the Class R Certificate. The "regular
interests" (within the meaning of Section 860(G)(a)(1) of the Code) of
REMIC I shall consist of three Pre-Strip PAC Regular Interests, two
Pre-Strip TAC Regular Interests, the Class A-5-3 Regular Interest, the
Class A-5-4 Regular Interest, the Class A-5-5 Regular Interest, the
Class A-6 Regular Interest, the Class A-7 Regular Interest, the Class
A-8 Regular Interest, the Class A-9 Regular Interest, the Class A-10
Regular Interest, the Class M Regular Interest, the Class B-1 Regular
Interest, the Class B-2 Regular Interest, the Class B-3 Regular
Interest, the Class B-4 Regular Interest and the Class B-5 Regular
Interest. (The Pre-Strip PAC Regular Interests shall consist of three
REMIC I regular interests, each of which shall correspond as to
principal amount to one of the Class A-1, Class A-2, and Class A-3
Certificates.) (The Pre-Strip TAC Regular Interests shall consist of
two REMIC I regular interests, each of which shall correspond as to
principal amount to one of the Class A-4 and Class A-11 Certificates.)
The "residual interest" (within the meaning of Section 860(G)(a)(2) of
the Code) of REMIC I shall consist of Component R-1 of the Class R
Certificate.
(c) All payments with respect to each of the Class A-5-3,
A-5-4 and A-5-5 Components, the Class A-6, A-7, A-8, A-9, A-10, M, B-1,
B-2, B-3, B-4 and B-5 Certificates shall each be considered to have
been made solely from the Regular Interest of REMIC I having the same
designation. All principal payments with respect to each of the Class
A-1, A-2 and A-3 Certificates shall be considered to have been made
solely from the principal payments of the corresponding Pre-Strip PAC
Regular Interest of REMIC I. All principal payments with respect to
each of the Class A-4 and A-11 Certificates shall be considered to have
been made solely from the principal payments of the corresponding Pre-
Strip TAC Regular Interest of REMIC I. All interest payments with
respect to the Class A-1, A-2 and A-3 Certificates and Component A-5-1
shall be considered to have been made solely from the interest payments
of the Pre-Strip PAC Regular Interests of REMIC I. All interest
payments with respect to the Class A-4 and A-11 Certificates and
Component A-5-2 shall be considered to have been made solely from the
interest payments of the Pre-Strip TAC Regular Interests of REMIC I.
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The interest rate of each of the REMIC I Regular Interest
Classes A-5-3, A-5-5, A-6, A-8, A-9, A-10, M, B-1, B-2, B-3, B-4 and
B-5 of REMIC I shall be the same as the Remittance Rate of the
Certificate or Component of REMIC II having the same designation. The
Class A-5-4 and A-7 Regular Interest Classes shall not bear interest,
but will receive principal only in respect of the Loans.
The Pre-Strip PAC Regular Interests and the Pre-Strip TAC
Regular Interests shall each have an interest rate of 6.75%.
The principal balance of each of the Regular Interests of
REMIC I (except the Pre- Strip PAC Regular Interests, the Pre-Strip TAC
Regular Interests and the Class A-5-5 Regular Interest) is equal at all
times to the Class Principal Balance or Component Principal Balance of
the Class or Component of REMIC II which has the same designation. The
principal balance of each Pre-Strip PAC Regular Interest is equal at
all times to the Class Principal Balance of the corresponding Class
A-1, A-2 and A-3 Certificates. The principal balance of each Pre-Strip
TAC Regular Interest is equal at all times to the Class Principal
Balance of the corresponding Class A-4 and A-11 Certificates. The
notional principal balance of the Class A-5-5 Regular Interest is equal
at all times to the Component A-5-5 Notional Amount.
(d) The Component A-5-1 Notional Amount shall for purposes of
the REMIC provisions be deemed to be composed of three component
notional principal balances, each of which corresponds at all times to
the principal balance of a Pre-Strip PAC Regular Interest. The
Component A-5-2 Notional Amount shall for purposes of the REMIC
provisions be deemed to be composed of two component notional principal
balances, each of which corresponds at all times to the principal
balance of a Pre-Strip TAC Regular Interest.
Section 2.5 Designation of Startup Day. The Closing Date is hereby
designated as the "startup day" of each of REMIC I and REMIC II within the
meaning of Section 860G(a)(9) of the Code.
Section 2.6 No Contributions. The Trustee shall not accept or make any
contribution of cash to the Trust Fund after 90 days of the Closing Date, and
shall not accept or make any contribution of other assets to the Trust Fund
unless, in either case, it shall have received an Opinion of Counsel to the
effect that the inclusion of such assets in the Trust Fund will not cause either
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any Class A
or Subordinate Certificates are outstanding or subject the Trust Fund to any tax
on contributions to the REMIC under Section 860G(d) of the Code.
Section 2.7 Representations and Warranties of the Servicer. The
Servicer hereby represents, warrants and covenants to the Trustee for the
benefit of Certificateholders that, as of the date of execution of this
Agreement:
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(a) the Servicer is a corporation duly formed and validly
existing under the laws of the State of Illinois;
(b) the execution and delivery of this Agreement by the
Servicer and its performance of and compliance with the terms of this
Agreement will not violate the Servicer's corporate charter or by-laws
or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to
which the Servicer is a party or which may be applicable to the
Servicer or any of its assets;
(c) this Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Servicer, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(d) the Servicer 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 might
have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Servicer or its
properties or might have consequences that would affect its performance
hereunder;
(e) no litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit its
entering into this Agreement or performing its obligations under this
Agreement; and
(f) as long as the Servicer has any obligations to service the
Loans hereunder (and it has not assigned such obligations pursuant to
Section 3.1(c)), it shall be a FNMA or a FHLMC-qualified servicer.
It is understood and agreed that the representations and warranties set
forth in this Section 2.7 shall survive delivery of the respective Mortgage
Files to the Trustee, or to a Custodian, as the case may be.
ARTICLE III
ADMINISTRATION AND SERVICING OF LOANS
Section 3.1 Servicer to Act as Servicer; Administration of the Loans.
(a) The Servicer shall service and administer the Loans on
behalf of the Trust Fund solely in the best interests of and for the
benefit of the Certificateholders (as
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determined by the Servicer in its reasonable judgment) and the Trustee
(as trustee for Certificateholders) in accordance with the terms of
this Agreement and the respective Loans and, to the extent consistent
with such terms, in the same manner in which, and with the same care,
skill, prudence and diligence with which, it services and administers
similar mortgage loans for other portfolios, giving due consideration
to customary and usual standards of practice of prudent institutional
residential mortgage lenders and loan servicers, and taking into
account its other obligations hereunder, but without regard to:
(i) any relationship that the Servicer, any
sub-servicer, any special servicer or any Affiliate of the
Servicer, any sub-servicer or any special servicer may have
with the related Mortgagor;
(ii) the ownership of any Certificate by the
Servicer, any special servicer or any Affiliate of the
Servicer, any sub-servicer or any special servicer;
(iii) the Servicer's, any sub-servicer's or any
special servicer's right to receive compensation for its
services hereunder or with respect to any particular
transaction; or
(iv) the ownership, or servicing or management for
others, by the Servicer, any sub-servicer or any special
servicer, of any other mortgage loans or property.
To the extent consistent with the foregoing and subject to any
express limitations set forth in this Agreement, the Servicer shall
seek to maximize the timely and complete recovery of principal and
interest on the Mortgage Notes; provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the
Servicer of the collectability of the Loans. Subject only to the
above-described servicing standards and the terms of this Agreement and
of the respective Loans, the Servicer, as an independent contractor,
shall service and administer the Loans and shall have full power and
authority, acting alone or through one or more subservicers, special
servicers or agents (subject to paragraph (c) of this Section 3.1), to
do any and all things in connection with such servicing and
administration which it may deem necessary or desirable for the purpose
of conserving the assets of the Trust Fund. Without limiting the
generality of the foregoing, the Servicer shall and is hereby
authorized and empowered by the Trustee to continue to execute and
deliver, on behalf of itself, the Certificateholders and the Trustee or
any of them, any and all financing statements, continuation statements
and other documents or instruments necessary to maintain the lien on
each Mortgaged Property and related collateral; and modifications,
waivers, consents or amendments to or with respect to any documents
contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the
Loans and with respect to the related Mortgaged Properties.
Notwithstanding the foregoing, the Servicer (whether acting alone or
through one or more subservicers, special servicers or agents) shall
not modify, amend, waive or otherwise consent to the change of the
terms of any of the Loans (including without limitation extending the
stated maturity date of any
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Loan or forgiving principal of or interest on any Loan), except as
permitted by Section 3.2 hereof. The Servicer shall service and
administer the Loans in accordance with applicable law and shall
provide to the Mortgagors any reports required to be provided to them
thereby. To enable the Servicer to carry out its servicing and
administrative duties hereunder, upon the Servicer's written request
accompanied by the forms of any documents requested, the Trustee shall
execute and deliver to the Servicer any powers of attorney and other
documents necessary or appropriate and the Trustee shall not be
responsible for releasing such powers of attorney. The Trustee shall
not be responsible for, and the Servicer shall indemnify the Trustee
for, any action taken by the Servicer pursuant to the application of
any such power of attorney. The relationship of the Servicer (and of
any successor thereto) to the Trustee under this Agreement is intended
by the parties to be that of an independent contractor and not that of
a joint venturer, partner or agent.
(b) The Servicer, Trustee and Depositor intend that REMIC I
and REMIC II formed hereunder shall constitute, and that the Servicer
shall perform its duties and obligation hereunder so as to qualify each
of them as, a "real estate mortgage investment conduit" as defined in
and in accordance with the REMIC Provisions. The Tax Matters Person, or
the Person acting as attorney-in-fact and agent therefor, shall: (a)
prepare and file, or cause to be prepared and filed, federal tax
returns (as well as any other federal and state information and other
returns) using a calendar year as the taxable year when and as required
by the REMIC Provisions; (b) make (or cause to be made) an election, on
behalf of each of REMIC I and REMIC II, to be treated as a REMIC on the
Federal tax return and any applicable state or local returns for the
first taxable year, in accordance with the REMIC Provisions; (c)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders all information reports (including, without
limitation, the information required in connection with the computation
of the present value of anticipated excess inclusions as required by
'SS' 1.860E-2(a)(5) of the REMIC Provisions) as and when required to be
provided to them in accordance with the REMIC Provisions; (d) conduct
the affairs of the Trust Fund at all times that REMIC I Regular
Interests or REMIC II Certificates are outstanding so as to maintain
the status of each of REMIC I and REMIC II as a REMIC under the REMIC
Provisions; and (e) not knowingly or intentionally take any action or
omit to take any action that would cause the termination of the REMIC
status of either REMIC I or REMIC II.
(c) The Servicer may enter into sub-servicing agreements with
third parties with respect to any of its respective obligations
hereunder, provided, that (1) any such agreement shall be consistent
with the provisions of this Agreement and (2) no sub-servicer retained
by the Servicer shall grant any modification, waiver or amendment to
any Loan without the approval of the Servicer. Any such sub-servicing
agreement may permit the sub-servicer to delegate its duties to agents
or subcontractors so long as the related agreements or arrangements
with such agents or subcontractors are consistent with the provisions
of this Section 3.1(c).
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Any sub-servicing agreement entered into by the Servicer with
a Person other than the Depositor shall provide that it may be assumed
or terminated by the Trustee if the Trustee has assumed the duties of
the Servicer, without cost or obligation to the assuming or terminating
party or the Trust Fund, upon the assumption by such party of the
obligations of the Servicer pursuant to Section 7.5.
Any sub-servicing agreement, and any other transactions or
services relating to the Loans involving a sub-servicer, including (if
applicable) the Depositor in its capacity as sub-servicer under a
sub-servicing agreement and not in its capacity as a party to this
Agreement, shall be deemed to be between the Servicer and such
sub-servicer (including the Depositor) alone, and the Trustee and the
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 3.1(d).
In the event that the Trustee assumes the servicing
obligations of the Servicer, upon request of the Trustee, the Servicer
shall at its own expense deliver to the Trustee all documents and
records relating to any sub-servicing agreement and the Loans then
being serviced thereunder and an accounting of amounts collected and
held by it, if any, and will otherwise use its best efforts to effect
the orderly and efficient transfer of any sub-servicing agreement to
the Trustee.
(d) Costs incurred by the Servicer in effectuating the timely
payment of taxes and assessments on the Mortgaged Property securing a
Mortgage Note shall be recoverable by the Servicer pursuant to Section
3.3. The Servicer shall ensure all such taxes and assessments are
timely paid.
The Servicer, as initial servicer, shall pay all of its costs
and proven damages incurred with respect to or arising out of any
allegation of impropriety in its servicing of the Loans. Further, the
Servicer shall not be entitled to reimbursement or indemnification from
either the Trust Fund or the Certificateholders with respect to any
such costs, claims and damages.
(e) Notwithstanding any sub-servicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements
between the Servicer and any Person (including the Depositor) acting as
sub-servicer (or its agents or subcontractors) or any reference to
actions taken through any Person (including the Depositor) acting as
sub-servicer or otherwise, the Servicer shall remain obligated and
primarily liable to the Trustee and Certificateholders for the
servicing and administering of the Loans in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such sub-servicing agreements or arrangements or
by virtue of indemnification from the Depositor or any other Person
acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Loans. The Servicer shall be
entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Servicer by such sub-servicer
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(including the Depositor and the Trustee), and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification,
but no such agreement for indemnification shall be deemed to limit or
modify this Agreement.
Section 3.2 Collection of Certain Loan Payments; Certificate Account.
(a) The Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Loans, and
shall, to the extent such procedures shall be consistent with this
Agreement, follow such collection procedures as it follows with respect
to conventional mortgage loans it services for itself and any of its
Affiliates; provided, however, that the Servicer agrees not to permit
any modification with respect to any Loan that would change the manner
in which the Mortgage Interest Rate is computed, forgive any principal
or interest or change the term of such Loan. Consistent with the
foregoing, the Servicer may in its discretion (i) waive any assumption
fee, late payment charge or other charge in connection with a Loan, and
(ii) arrange a schedule, running for no more than 180 days after the
scheduled Due Date, for payment of any installment on any Mortgage Note
or after the due date of any other payment due under the related
Mortgage Note for the liquidation of delinquent items, provided, that
the Servicer shall continue to be obligated to make Advances in
accordance with Section 4.3 during the continuance of such period. With
respect to any Loans which provide for the right of the holder thereof
to call for early repayment thereof at times specified therein, neither
the Trustee nor the Servicer shall exercise any such right, except that
the Trustee shall exercise such right at the written direction of the
Servicer set forth in an Officer's Certificate in connection with a
default under the related Note. Notwithstanding anything herein to the
contrary, neither the Servicer nor any other party may take any action
that would cause a "significant modification" of any Loan within the
meaning of the REMIC Provisions that would cause REMIC I or REMIC II to
fail to qualify as a REMIC at any time or cause a tax to be imposed on
the Trust Fund under the REMIC Provisions.
(b) The Servicer shall establish and maintain a separate
account as set forth in Article I (the "Custodial Account for P&I"),
and shall on the Closing Date credit any amounts representing scheduled
payments of principal and interest due after the Cut-off Date but
received by the Servicer on or before the Closing Date, and thereafter
on a daily basis the following payments and collections received or
made by it (other than in respect of principal of and interest on the
Loans due on or before the Cut-off Date):
(i) All Mortgagor payments on account of principal,
including Principal Prepayments on the Loans;
(ii) All Mortgagor payments on account of interest on
the Loans, which may be net of that portion thereof which the
Servicer is entitled to retain as Servicing Fees (adjusted for
any amounts related to Compensating Interest) pursuant to
Section 3.9, as adjusted pursuant to Section 4.6;
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(iii) All net Liquidation Proceeds;
(iv) All Insurance Proceeds received by the Servicer,
other than proceeds to be applied to the restoration or repair
of the property subject to the related Mortgage or released to
the Mortgagor in accordance with the Servicer's normal
servicing procedures, and all amounts deposited by the
Servicer with respect to the failure to maintain flood or fire
and hazard insurance policies, pursuant to Section 3.5;
(v) All Advances made by the Servicer pursuant to
Section 4.3;
(vi) All repurchase proceeds from the repurchase of a
Loan pursuant to a Purchase Obligation;
(vii) any amounts required to be deposited pursuant
to Section 3.2(c) in connection with net losses realized on
Eligible Investments with respect to funds held in the
Custodial Account for P&I;
(viii) all income and gain realized from any
investment of the funds in the Custodial Account for P&I in
Eligible Investments;
(ix) all net income from the renting of REO Property
pursuant to Section 3.7(c); and
(x) All other amounts required to be deposited in the
Custodial Account for P&I pursuant to this Agreement.
(c) The Servicer may invest the funds in the Custodial Account
for P&I in Eligible Investments which shall mature not later than the
second Business Day preceding the next Distribution Date unless the
Custodial Account for P&I is maintained with the Trustee in which case
they may mature one Business Day prior to the Distribution Date. The
Eligible Investments may not be sold or disposed of prior to their
maturity. All such Eligible Investments shall be made in the name of
the Servicer (in its capacity as such) or its nominee. All income and
gain realized from any such investment shall be for the benefit of the
Servicer, and shall be payable to the Servicer. The amount of any
losses incurred in respect of any such investments shall be deposited
in the Custodial Account for P&I by the Servicer, out of its own funds
immediately as realized without right to reimbursement therefor.
(d) The foregoing requirements for deposit in the Custodial
Account for P&I shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments in the
nature of those described in the last paragraph of this Section 3.2 and
payments in the nature of late payment charges or assumption fees need
not be deposited by the Servicer in the Custodial Account for P&I. All
funds deposited by the Servicer in the
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Custodial Account for P&I shall be held by it in trust in the Custodial
Account for P&I until disbursed in accordance with Section 4.1 or
withdrawn in accordance with Section 3.3; provided, however, that the
Servicer shall withdraw such funds and deposit them in such manner as
to not result in a downgrading or withdrawal of the rating then
assigned to the Certificates by each Rating Agency. If the Servicer
deposits in the Custodial Account for P&I any amount not required to be
deposited therein, it may at any time withdraw such amount from the
Custodial Account for P&I pursuant to Section 3.3(i) of this Agreement.
Certain of the Loans may provide for payment by the Mortgagor of
amounts to be used for payment of taxes, assessments, hazard or other insurance
premiums or comparable items for the account of the Mortgagor. The Servicer may
deal with these amounts in accordance with its normal servicing procedures.
Section 3.3 Permitted Withdrawals from the Custodial Account for P&I.
The Servicer may, from time to time, make withdrawals from the Custodial Account
for P&I for the following purposes:
(a) to reimburse itself for Advances made by it pursuant to
Section 3.4 or 4.3, the Servicer's right to reimburse itself pursuant
to this subclause (a) being limited to amounts received on or in
respect of particular Loans (including, for this purpose, Liquidation
Proceeds and Insurance Proceeds which represent late recoveries of
payments of principal and/or interest respecting which any such Advance
was made and any net income received from the renting of REO Property
pursuant to Section 3.7(c)) or to reimburse itself for Advances from
funds in the Custodial Account for P&I held for future distribution or
withdrawal, such funds to be replaced by the Servicer to the extent
that funds in the Custodial Account for P&I on a future Withdrawal Date
are less than the payment required to be made to the Certificate
Account therefrom as of such future Distribution Date;
(b) (i) to reimburse itself from Liquidation Proceeds for
Liquidation Expenses, (ii) for amounts expended by it pursuant to
Section 3.7 in good faith in connection with the restoration of damaged
property and (iii) to the extent that Liquidation Proceeds after such
reimbursement are in excess of the Principal Balance of the related
Loan together with accrued and unpaid interest thereon at the
applicable Pass-Through Rate to the date of such liquidation, net of
any related Advances which were unreimbursed prior to the receipt of
such Liquidation Proceeds, to pay to itself any unpaid Servicing Fees,
and any assumption fees, late payment charges or other Mortgage charges
on the related Loan;
(c) to pay to itself from any Mortgagor payment as to interest
or other recovery with respect to a particular Loan, to the extent
permitted by this Agreement, that portion of any payment as to interest
in excess of interest at the applicable Pass-Through Rate which the
Servicer is entitled to retain as Servicing Fees pursuant to Section
3.9 or otherwise;
(d) to reimburse itself for expenses incurred by and
recoverable by or reimbursable to it pursuant to Section 3.1 or 3.5
after the related Mortgagor has reimbursed
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the Trust Fund for such expenses or following liquidation of the
related Loan, or pursuant to Section 6.3;
(e) to pay to itself with respect to each Loan or property
acquired in respect thereof that has been repurchased pursuant to
Section 2.2 or 2.3 or purchased by the Class R Certificateholder
pursuant to Section 9.1 all amounts received thereon and not
distributed as of the date on which the related Principal Balance is
determined;
(f) to reimburse itself for any Nonrecoverable Advances;
(g) to disburse to the Trustee in order that the Trustee may
make payments to Certificateholders in the amounts and in the manner
provided for in Section 4.1;
(h) to pay itself any net interest or other income earned and
received on or investment income received with respect to funds in the
Custodial Account for P&I; and
(i) to make payments to itself or others pursuant to any
provision of this Agreement and to remove any amounts not required to
be deposited therein and to clear and terminate the Custodial Account
for P&I pursuant to Section 9.1.
Since in connection with withdrawals pursuant to subclauses (a), (b),
(c) and (e) the Servicer's entitlement thereto is limited to collections or
other recoveries on the related Loan, the Servicer shall keep and maintain a
separate accounting for each Loan for the purpose of justifying any withdrawal
from the Custodial Account for P&I pursuant to such subclauses.
The Servicer shall make the withdrawal referred to in subclause (g)
above and shall deposit the amount so withdrawn into the Certificate Account
prior to 4:00 P.M. New York City time on each related Withdrawal Date.
Section 3.4 Taxes, Assessments and Similar Items; Escrow Accounts.
(a) The Servicer shall establish and maintain one or more
accounts (each, an "Escrow Account") into which all Escrow Payments
shall be deposited and in which all Escrow Payments shall be retained.
Escrow Accounts shall be Eligible Accounts, and funds in the Escrow
Account may be invested in Eligible Investments. The Servicer shall
notify the Trustee in writing of the location and account number of
each Escrow Account it establishes and shall notify the Trustee prior
to any subsequent change thereof. Withdrawals of amounts from an Escrow
Account may be made only to: (i) effect payment of taxes, assessments
and comparable items; (ii) refund to Mortgagors any sums that are
determined to be overages; (iii) pay interest, if required and as
described below, to Mortgagors on balances in the Escrow Account; (iv)
withdraw interest or other income which may lawfully be retained by the
Trust Fund, for deposit into the Certificate Account; or (v) clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 9.1. Unless otherwise required by applicable
law, any interest earned on funds in
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Escrow Accounts shall be remitted to the related Mortgagors if required
by the related Mortgage Note or otherwise to the Servicer.
(b) With respect to each Loan, the Servicer shall maintain
accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items
that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. The Servicer
shall require that payments for taxes, assessments, insurance premiums
and other similar items be made by the Mortgagor at the time they first
become due. If a Mortgagor fails to make any such payment on a timely
basis, the Servicer shall advance the amount of any shortfall unless
the Servicer determines in its good faith judgment that such advance
would not be ultimately recoverable from future payments and
collections on the related Loan (including without limitation Insurance
Proceeds and Liquidation Proceeds), or otherwise. The Servicer shall be
entitled to reimbursement of advances it makes pursuant to the
preceding sentence, together with interest thereon at the Federal Funds
Rate, from amounts received on or in respect of the related Loan
respecting which such advance was made or if such advance has become
nonrecoverable, in either case to the extent permitted by Section 3.3
of this Agreement. No costs incurred by the Servicer in effecting the
payment of taxes and assessments on the Mortgaged Properties shall, for
the purpose of calculating distributions to Certificateholders, be
added to the amount owing under the related Loans, notwithstanding that
the terms of such Loans so permit.
Section 3.5 Maintenance of Insurance. The Servicer shall also cause to
be maintained for each Loan fire and hazard insurance with extended coverage as
is customary in the area where the Mortgaged Property is located in an amount
which is at least equal to the lesser of (i) the Principal Balance of such Loan
or (ii) the replacement value costs of improvements securing such Loan. The
Servicer shall cause to be maintained fire and hazard insurance with extended
coverage on each REO Property in an amount which is at least equal to the
greater of (i) an amount not less than is necessary to avoid the application of
any co-insurance clause contained in the related fire and hazard insurance
policy or (ii) the replacement cost of the improvements which are a part of such
property. The Servicer shall also cause to be maintained for each Loan with a
Loan-to-Value Ratio greater than 80% a primary mortgage insurance policy which
will cover at least 75% of the original fair market value of the related
Mortgaged Property until such time as the principal balance of such Loan is
reduced to 80% of the current fair market value or otherwise in accordance with
applicable law. The Servicer on behalf of the Trustee as Mortgagee shall
maintain or cause the related Mortgagor to maintain for each Loan such other
insurance on the related Mortgaged Property as may be required by the terms of
the related Mortgage Note. If the Mortgaged Property is in an area identified in
the Federal Register by the Flood Emergency Management Agency as having special
flood hazards the Servicer will cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (i) the full insurable value,
(ii) the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, and (iii) the Principal Balance of the related Loan. The
Servicer shall also maintain fire and hazard insurance with extended coverage
and, if applicable, flood insurance on
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property acquired upon foreclosure, or by deed in lieu of foreclosure, of any
Loan in an amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the principal balance owing on such Loan at the time of such foreclosure or
grant of deed in lieu of foreclosure plus accrued interest and related
Liquidation Expenses. If an REO Property was located at the time of origination
of the related Loan in a federally designated special flood hazard area, the
Servicer will obtain flood insurance in respect thereof providing substantially
the same coverage as described in the preceding sentence. If at any time during
the term of this Agreement a recovery under a flood or fire and hazard insurance
policy in respect of an REO Property is not available but would have been
available if such insurance were maintained thereon in accordance with the
standards applied to Mortgaged Properties described herein, the Servicer shall
either (i) immediately deposit into the Custodial Account for P&I from its own
funds the amount that would have been recovered or (ii) apply to the restoration
and repair of the property from its own funds the amount that would have been
recovered, if such application would be consistent with the servicing standard
set forth in Section 3.1. It is understood and agreed that such insurance shall
be with insurers approved by the Servicer and that no earthquake or other
additional insurance is to be required of any Mortgagor, other than pursuant to
such applicable laws and regulations or policies of the Servicer as shall at any
time be in force and as shall require such additional insurance. Pursuant to
Section 3.2, any amounts collected by the Servicer under any insurance policies
maintained pursuant to this Section 3.5 (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the Servicer's normal servicing
procedures) shall be deposited into the Custodial Account for P&I, subject to
withdrawal pursuant to Section 3.3. Any cost incurred by the Servicer in
maintaining any such insurance shall be recoverable by the Servicer pursuant to
Section 3.3. In the event that the Servicer shall obtain and maintain a blanket
policy issued by an insurer that qualifies under the guidelines set forth for
the Servicer by FNMA or FHLMC, insuring against hazard losses on all of the
Loans, then, to the extent such policy provides coverage in an amount equal to
the unpaid principal balance on the Loans without co-insurance and otherwise
complies with all other requirements set forth in the first paragraph of this
Section 3.5, it shall conclusively be deemed to have satisfied its obligation as
set forth in such first paragraph, it being understood and agreed that such
policy may contain a deductible clause, in which case the Servicer shall, in the
event that there shall not have been maintained on the related mortgaged or
acquired property an insurance policy complying with the first paragraph of this
Section 3.5 and there shall have been a loss which would have been covered by
such a policy had it been maintained, be required to deposit from its own funds
into the Custodial Account for P&I or apply to the restoration of the property
the amount not otherwise payable under the blanket policy because of such
deductible clause.
The Servicer shall obtain and maintain at its own expense throughout
the term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy with broad coverage with responsible companies covering the
Servicer's officers and employees and other persons acting on behalf of the
Servicer in connection with its activities under this Agreement. Any such
fidelity bond and errors and omissions insurance shall provide an amount of
coverage and will maintain such coverage at a level which will permit the
Servicer to continue to be a FNMA or a FHLMC-qualified Servicer and shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such persons. No
provision of this
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Section 3.5 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the Servicer from its duties and obligations as set
forth in this Agreement.
Section 3.6 Enforcement of Due-on-Sale Clauses; Assumption and
Substitution Agreements. In any case in which property subject to a Mortgage is
conveyed by the Mortgagor, the Servicer reserves the right to enforce any
due-on-sale clause contained in the related Mortgage Note or Mortgage, to the
extent permitted under applicable law and governmental regulations, but only to
the extent that such enforcement will not adversely affect or jeopardize
coverage under any related insurance policy or result in legal action by the
Mortgagor. Subject to the foregoing, the Servicer is authorized to take or enter
into an assumption or substitution agreement from or with the Person to whom
such property has been or is about to be conveyed. The Servicer is also
authorized to release the original Mortgagor from liability upon the Loan and
substitute the new Mortgagor as obligor thereon. In connection with such
assumption or substitution, the Servicer shall apply such underwriting standards
and follow such practices and procedures as shall be normal and usual and as it
applies to mortgage loans owned solely by it or any of its Affiliates. The
Servicer shall notify the Trustee that any such assumption or substitution
agreement has been completed by forwarding to the Trustee the original copy of
such assumption or substitution agreement, which copy shall be added by the
Trustee to the related Mortgage File and 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
or substitution agreement, the interest rate of the related Mortgage Note shall
not be changed. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Servicer as servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any conveyance by the
Mortgagor of the Mortgaged Property or any assumption of a Loan by operation of
law which the Servicer in good faith determines it may be restricted by law from
preventing, for any reason whatsoever.
Section 3.7 Realization upon Defaulted Loans.
(a) Consistent with the servicing standard set forth in
Section 3.1 and with a view to the best economic interest of the Trust
Fund, the Servicer shall foreclose upon or otherwise comparably convert
(which may include acquisition of an REO Property) the Mortgaged
Properties securing such of the Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 3.2. In
connection with such foreclosure or other conversion, the Servicer
shall follow such practices and procedures as it shall deem necessary
or advisable and as shall be normal and usual in its general mortgage
servicing activities. The foregoing is subject to the proviso that the
Servicer shall not be required to expend its own funds in connection
with any foreclosure or to restore any damaged property unless it shall
determine (i) that such foreclosure and/or restoration expenses will
increase the Liquidation Proceeds to Certificateholders after
reimbursement to itself for such expenses and (ii) that such
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expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawal
from the Custodial Account for P&I pursuant to Section 3.3). Any gain
on foreclosure or other conversion of a Liquidated Loan shall be
distributed to the Class R Certificateholder. The 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 any Servicing Fees and other amounts
due it, if any), to the extent, but only to the extent, that
withdrawals from the Custodial Account for P&I with respect thereto are
permitted under Section 3.3. Within 30 days after receipt of
Liquidation Proceeds in respect of a Liquidated Loan, the Servicer
shall provide to the Trustee a statement of accounting for the related
Liquidated Loan, including without limitation (i) the Loan number, (ii)
the date the Loan was acquired in foreclosure or deed in lieu, and the
date the Loan became a Liquidated Loan, (iii) the gross sales price and
the related selling and other expenses, (iv) accrued interest
calculated from the foreclosure date to the liquidation date, and (v)
such other information as the Trustee may reasonably specify.
(b) Prior to any such foreclosure, the Servicer may, at its
option, repurchase any Loan which is 90 days or more delinquent and
which the Servicer determines in good faith would otherwise become
subject to foreclosure proceedings or any Loan as to which the
Mortgagor tenders a deed in lieu of foreclosure at a price equal to the
outstanding Principal Balance of the Loan plus accrued interest at the
applicable Pass-Through Rate to the next Due Date. Any such repurchase
shall be deemed a Principal Prepayment for purposes of this Agreement
and all amounts in respect thereof shall be deposited into the
Custodial Account for P&I pursuant to Section 3.2(b).
(c) The Trust Fund shall not acquire any real property (or
personal property incident to such real property) except in connection
with a default or imminent default of a Loan. Based on a report
prepared by an Independent Person who regularly conducts environmental
audits that the Mortgaged Property for which foreclosure proceedings
are contemplated is in compliance with applicable environmental laws,
and there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous materials,
wastes, or petroleum based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or that it would be in the best
economic interest of the Trust Fund to acquire title to such Mortgaged
Property and further to take such actions as would be necessary and
appropriate to effect such compliance and/or respond to such
circumstances, the Servicer will not conduct such foreclosure
proceedings. If the Servicer otherwise becomes aware, under its
customary servicing procedures, of an environmental hazard with respect
to a Loan for which foreclosure proceedings are contemplated, the
Servicer will not conduct such foreclosure proceedings unless it
determines in good faith that the liability associated with the
environmental hazard will be less than the Liquidation Proceeds to be
realized from the sale of the related Mortgaged Property. 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
imminent default of a Loan, such REO Property shall be disposed of by
the Trust Fund within three years after its acquisition by the Trust
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Fund unless the Trustee shall have received from the Servicer an
Opinion of Counsel to the effect that the holding by the Trust Fund of
such REO Property subsequent to three years after its acquisition will
not cause either REMIC I or REMIC II to fail to qualify as a REMIC
under the REMIC Provisions at any time that any REMIC I Regular
Interests or Certificates are outstanding, in which case such REO
Property shall be disposed of as soon as possible by the Trust Fund but
in no event shall be held longer than the maximum period of time during
which the Trust Fund is then permitted to hold such REO Property and
allow REMIC I and REMIC II to remain qualified as REMICs under the
REMIC Provisions. The Servicer shall manage, conserve, protect and
operate each such REO Property for the Certificateholders solely for
the purpose of its prompt disposition and sale in a manner which does
not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code.
Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and
conserve such REO Property in the same manner and to such extent as is
customary in the locality where such property is located and may,
incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Servicer
deems to be in the best interest of the Servicer and the
Certificateholders for the period prior to the sale of such REO
Property. All proceeds from the renting of such REO Property shall, net
of any costs or expenses of the Servicer in connection therewith, be
deposited into the Custodial Account for P&I pursuant to Section
3.3(b)(ix).
(d) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee
on behalf of Certificateholders. Notwithstanding any such acquisition
of title and cancellation of the related Loan, such Loan shall (except
for purposes of Section 9.1) be considered to be a Loan held in the
Trust Fund until such time as the related REO Property shall be sold by
the Trust Fund and shall be reduced only by collections net of
expenses. Consistent with the foregoing, for purposes of all
calculations hereunder, so long as such Loan shall be considered to be
an outstanding Loan, it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Mortgage Note shall have been
discharged, such Mortgage Note and, for purposes of determining the
Scheduled Principal Balance thereof, the related amortization schedule
in effect at the time of any such acquisition of title remain in
effect.
(e) The Servicer shall not acquire for the benefit of the
Trust Fund any personal property pursuant to this Section 3.7 unless
either:
(i) such personal property is incident to real
property (within the meaning of Section 856(e)(1) of the Code)
so acquired by the Servicer for the benefit of the Trust Fund;
or
(ii) the Servicer shall have requested and received
an Opinion of Counsel (which opinion shall be an expense of
the Trust Fund) to the effect that the holding of such
personal property by the Trust Fund will not cause the
imposition of a tax on
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the Trust Fund under the REMIC Provisions or cause either
REMIC I or REMIC II of the Trust Fund to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
Section 3.8 Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Loan, or the receipt by the Servicer of a notification
that the payment in full will be escrowed in a manner customary for such
purposes, the Servicer will immediately notify the Trustee by an Officer's
Certificate (which Officer's Certificate shall include a statement to the effect
that all amounts received in connection with such payment which are required to
be deposited in the Custodial Account for P&I pursuant to Section 3.2 have been
or will be so deposited) and shall by such Officer's Certificate request
delivery to it of the Mortgage File. Upon receipt of such Officer's Certificate
and request, the Trustee shall promptly release or cause to be released the
related Mortgage File to the Servicer. From time to time and as appropriate for
the servicing or foreclosure of any Loan, the Trustee shall, upon written
request of the Servicer and delivery to the Trustee of a trust receipt signed by
a Servicing Officer, release or cause to be released the related Mortgage File
to the Servicer and shall execute such documents furnished to it as shall be
necessary to the prosecution of any such proceedings. Such trust receipt shall
obligate the Servicer to return each and every document previously requested
from the Mortgage File to the Trustee when the need therefor by the Servicer no
longer exists unless the Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that hereinabove specified,
the trust receipt shall be released by the Trustee to the Servicer by delivery
to a Servicing Officer and the Trustee shall have no further responsibility with
respect to such Mortgage Files.
Section 3.9 Servicing Compensation. The Servicer shall be entitled to
retain or, if not retained, to withdraw from the Certificate Account as
servicing compensation its Servicing Fee out of each payment on account of
interest on each Loan, subject to adjustment as provided in Section 4.6. The
Servicer shall also be entitled to payment of unpaid Servicing Fees with respect
to a delinquent Loan out of Liquidation Proceeds with respect to such Loan, to
the extent permitted by Section 3.3(b). Servicing compensation in the form of
assumption fees, late payment charges or otherwise shall be retained by the
Servicer and need not be deposited in the Custodial Account for P&I. The
Servicer shall also be entitled to additional servicing compensation out of
Liquidation Proceeds to the extent provided in Section 3.3(b). The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including maintenance of the blanket hazard
insurance policy and the blanket fidelity bond and errors and omissions policy
required by Section 3.5) and shall not be entitled to reimbursement therefor
except as specifically provided in Sections 3.1, 3.3, 3.5 and 3.7.
On each Distribution Date, the Servicer shall pay to the Certificate
Administrator and the Trustee the Certificate Administration and Trustee Fee out
of the Servicing Fee retained by the Servicer on such Distribution Date. Such
amounts shall be compensation for the activities of the Certificate
Administrator and the Trustee hereunder. The Certificate Administrator and the
Trustee shall be required to pay all expenses incurred by it in connection with
its activities hereunder and shall not be entitled to reimbursement therefor,
except as specifically provided herein.
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Section 3.10 Reports to the Trustee; Custodial Account for P&I
Statements. On or before each Determination Date, the Servicer shall deliver or
cause to be delivered to the Trustee or its designee a statement in electronic
or written form as may be agreed upon by the Servicer and the Trustee containing
the information described in Section 4.2 and such other information as may be
necessary for the Trustee to compute the amounts to be distributed to the
Certificateholders by the Trustee (the "Servicer's Section 3.10 Report"). Not
later than 25 days after each Distribution Date, the Servicer shall forward or
cause to be forwarded to the Trustee a statement, certified by a Servicing
Officer, setting forth the status of the Custodial Account for P&I as of the
close of business on the related Distribution Date, stating that all
distributions from the Custodial Account for P&I required to be made by this
Agreement have been made for the period covered by such statement (or if any
required distribution has not been made, specifying the nature and status
thereof) and showing, for the period covered by such statement, the aggregate of
deposits into and withdrawals from the Custodial Account for P&I for each
category of deposit specified in Section 3.2 and each category of withdrawal
specified in Section 3.3. Such statement shall also include information as to
the aggregate Principal Balance of all of the Loans as of the last day of the
calendar month immediately preceding such Distribution Date. Copies of such
statement shall be provided to any Certificateholder upon request by the
Servicer, or by the Trustee so long as the Trustee has received the report as
stipulated above at the Servicer's expense if the Servicer shall fail to provide
such copies.
Section 3.11 Annual Statement as to Compliance. The Servicer will
deliver to the Trustee, on or before March 15 of each year, beginning March 15,
2000, an Officer's Certificate stating as to each signer thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout 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. Copies of such statement shall be provided to each
Rating Agency and to any Certificateholder upon request by the Servicer, or by
the Trustee at the Servicer's expense.
Section 3.12 Annual Independent Public Accountants' Servicing Report.
On or before March 15 of each year, beginning March 15, 2000, the 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 the Trustee and each Rating Agency to the effect that such firm has
examined certain documents and records relating to the servicing of the Loans
and that, either (a) on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for FHLMC, such firm is
of the opinion that such servicing has been conducted in compliance with the
manner of servicing set forth in agreements substantially similar to this
Agreement except for (i) such exceptions as such firm shall believe to be
immaterial and (ii) such other exceptions as shall be set forth in such
statement or, (b) that their examination conducted substantially in compliance
with the uniform single audit program for mortgage bankers disclosed no
exceptions or errors in records relating to mortgage loans serviced for others
that in their opinion are material and that Paragraph 4 of that program requires
them to report. Copies of such statement
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shall be provided to Certificateholders upon request by the Servicer, or by the
Trustee at the Servicer's expense.
Section 3.13 Access to Certain Documentation and Information Regarding
the Loans. The Servicer shall provide access to the Trustee or to its designees
at its request, and to Certificateholders which are savings and loan
associations, banks or insurance companies, the OTS, the FDIC and the
supervisory agents and examiners of the OTS and the FDIC or examiners of any
other federal or state banking or insurance regulatory authority to the
documentation regarding the Loans if so required by applicable regulations of
the OTS or other regulatory authority, such access to be afforded without charge
but only upon reasonable request and during normal business hours at the offices
of the Servicer designated by it. The Trustee or its designee may without charge
copy any document or electronic record maintained by the Servicer hereunder.
Section 3.14 [Reserved].
Section 3.15 Sale of Defaulted Loans and REO Properties.
(a) With respect to any Defaulted Loan or REO Property which
the Servicer has determined to sell in accordance with the standards
set forth in Section 3.7, the Servicer shall deliver to the Trustee an
Officer's Certificate to the effect that no satisfactory arrangements
can be made for collection of delinquent payments thereon pursuant to
Section 3.2, and, consistent with the servicing standard set forth in
Section 3.1 and with a view to the best economic interest of the Trust
Fund, the Servicer has determined to sell such Defaulted Loan or REO
Property in accordance with this Section 3.15. The Servicer may then
offer to sell to any Person any Defaulted Loan or any REO Property or,
subject to the following sentence, purchase any such Defaulted Loan or
REO Property (in each case at the Repurchase Price therefor), but shall
in any event, so offer to sell any REO Property no later than the time
determined by the Servicer to be sufficient to result in the sale of
such REO Property within the period specified in Section 3.7(c). The
Servicer shall accept the highest bid received from any Person for any
Defaulted Loan or any REO Property in an amount at least equal to the
Purchase Price therefor or, at its option, if it has received no bid at
least equal to the Purchase Price therefor, purchase the Defaulted Loan
or REO Property at the Purchase Price.
In the absence of any such bid or purchase by the Servicer,
the Servicer shall accept the highest bid received from any Person that
is determined by the Servicer to be a fair price for such Defaulted
Loan or REO Property, if the highest bidder is a Person other than an
Interested Person, or is determined to be such a price by the Trustee,
if the highest bidder is an Interested Person. Notwithstanding anything
to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Loan or any REO Property pursuant hereto.
The Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest bid if the Servicer
determines, in accordance with the servicing standard stated in Section
3.1, that rejection of such bid would be in the best interests of the
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Certificateholders. In addition, the Servicer may accept a lower bid if
it determines, in accordance with the servicing standard stated in
Section 3.1, that acceptance of such bid would be in the best interests
of the Certificateholders (for example, if the prospective buyer making
the lower bid is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower bid are more
favorable). In the event that the Servicer determines with respect to
any REO Property that the bids being made with respect thereto are not
in the best interests of the Certificateholders and that the end of the
period referred to in Section 3.7(c) with respect to such REO Property
is approaching, the Servicer shall seek an extension of such period in
the manner described in Section 3.7(c).
(b) In determining whether any bid received from an Interested
Person represents a fair price for any Defaulted Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an
Independent appraiser or other expert in real estate matters retained
by the Trustee the expense of which shall be an expense of the Trust
Fund. In determining whether any bid constitutes a fair price for any
Defaulted Loan or any REO Property, the Servicer or the Trustee (or, if
applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the period and amount of
any delinquency on the affected Defaulted Loan, the physical condition
of the related Mortgaged Property or such REO Property, the state of
the local economy and the Trust Fund's obligation to dispose of any REO
Property within the time period specified in Section 3.7(c).
(c) The Servicer shall act on behalf of the Trust Fund in
negotiating and taking any other action necessary or appropriate in
connection with the sale of any Defaulted Loan or REO Property,
including the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Loan or any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Servicer or the Trust Fund (except that any contract of
sale and assignment and conveyance documents may contain customary
warranties of title, so long as the only recourse for breach thereof is
to the Trust Fund), and, if consummated in accordance with the terms of
this Agreement, neither the Servicer, the Depositor nor the Trustee
shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Servicer or
the Trustee.
(d) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be promptly
deposited in the Custodial Account for P&I in accordance with Section
3.2(b).
Section 3.16 Delegation of Duties. In the ordinary course of business,
the Servicer or the Trustee may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the applicable terms
of this Agreement. In case of such delegation, the Servicer or the Trustee shall
supervise, administer, monitor and oversee the activities of such Person
hereunder to insure that such Person performs such duties in accordance herewith
and shall be responsible for the acts and omissions of such Person to the same
extent as it is responsible for its
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own actions or omissions hereunder. Any such delegations shall not relieve the
Servicer or the Trustee of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Section 6.4
hereof and shall be revocable by any successor Servicer or the Trustee.
Section 3.17 [Reserved].
Section 3.18 [Reserved].
Section 3.19 Appointment of a Special Servicer. The Servicer may enter
into a special servicing agreement with an unaffiliated holder of a 100%
Percentage Interest of a Subordinate Certificate or a holder of a class of
securities representing interests in such Subordinate Certificate and/or other
subordinate mortgage pass-through certificates, such agreement to be (i)
substantially in the form of Exhibit R hereto or (ii) subject to each Rating
Agency's acknowledgment that the ratings of the Certificates in effect
immediately prior to the entering into of such agreement would not be qualified,
downgraded or withdrawn and the Certificates would not be placed on credit
review status (except for possible upgrading) as a result of such agreement. Any
such agreement may contain provisions whereby such holder may instruct the
Servicer to commence or delay foreclosure proceedings with respect to delinquent
Loans and will contain provisions for the deposit of cash by the holder that
would be available for distribution to Certificateholders if Liquidation
Proceeds are less than they otherwise may have been had the Servicer acted in
accordance with its normal procedures.
Section 3.20 Allocation of Realized Losses. Prior to each Distribution
Date, the Servicer shall determine the amount of Realized Losses, if any, with
respect to each Loan. The amount of Realized Losses shall be evidenced by an
Officer's Certificate signed by a Responsible Officer of the Servicer. All
Realized Losses, except for Special Hazard Losses, Fraud Losses and Bankruptcy
Losses in excess of the designated amounts of the applicable Special Hazard
Coverage, Fraud Coverage and Bankruptcy Coverage (each, as defined herein), will
be allocated as follows: (i) for losses allocable to principal (a) first, to the
Subordinate Certificates in reverse order of seniority until each of their Class
Principal Balances have been reduced to zero and (b) second, to the Senior
Certificates and Components (other than the Principal Only Component and the
Interest Only Components), pro rata, according to their Class Principal Balances
or Component Principal Balances (or, in the case of any of the Accrual
Certificate or Accrual Component, the Class Principal Balance or Component
Principal Balance of such Certificate or Component on the Closing Date, if
lower) in reduction of their respective Class or Component Principal Balances,
as applicable; provided, however, that if the loss is recognized with respect to
a Discount Loan, the Discount Fraction of such loss will first be allocated to
Component A-5-4 of the Class A-5 Certificates and the remainder of such loss
will be allocated as described above in this clause (i), provided, further, that
all losses allocable to the Class A-5 Certificates will be allocated to the
Class A-10 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; and (ii) for losses allocable to interest (a) first, to the
Subordinate Certificates in reverse order of seniority, in reduction of accrued
but unpaid interest thereon and then in reduction of the Class Principal Balance
of such Certificates and (b) second, to the Senior Certificates and Components
thereof (other than the Principal Only
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Certificate and Principal Only Component), pro rata according to accrued but
unpaid interest thereon and then pro rata according to their Class Principal
Balances or Component Principal Balances in reduction of their respective Class
Principal Balance or Component Principal Balances, as applicable, provided,
however, that all losses allocable to the Class A-5 Certificates will be
allocated to the Class A-10 Certificates until the Certificate Principal Balance
thereof has been reduced to zero.
Special Hazard Losses in excess of the Special Hazard Coverage, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of the
Bankruptcy Coverage shall be allocated among the Senior Certificates and the
Subordinate Certificates by Pro Rata Allocation.
On each Distribution Date, after giving effect to the principal
distributions and allocations of losses as provided in this Agreement (without
regard to this paragraph), if the Aggregate Certificate Principal Balance of all
outstanding Classes of Certificates exceeds the aggregate principal balance of
the Loans, after deduction of (i) all principal payments due on or before the
Cut-Off Date in respect of each such Loan whether or not paid and (ii) all
amounts of principal in respect of each such Loan that have been received or
advanced and included in the Available Distribution Amount, and all losses in
respect of such Loans that have been allocated to the Certificates, on such
Distribution Date or prior Distribution Dates, then such excess will be deemed a
principal loss and will be allocated to the most junior Class of Subordinate
Certificates then outstanding, in reduction of the Certificate Principal Balance
thereof.
Section 3.21 Maintenance of the Rounding Account; Collections
Thereunder. On or prior to the Closing Date, the Trustee shall establish the
Rounding Account and Lehman Brothers Inc. shall deposit $999.99 therein. The
Trustee shall maintain such account to provide, if needed, the applicable
Rounding Amount on any Distribution Date. On the first Distribution Date with
respect to which the Trustee determines that amounts are available out of the
Available Distribution Amount for distributions of principal on the Class A-9
Certificates, and the aggregate amount allocable to such distributions of
principal is not an amount equal to an integral multiple of $1,000, the Trustee
shall withdraw from the Rounding Account the applicable Rounding Amount. On each
succeeding Distribution Date, prior to the Credit Support Depletion Date, with
respect to which the Trustee determines that amounts are available out of the
Available Distribution Amount for distributions of principal on the Class A-9
Certificates, the aggregate amount allocable to such Class will be applied first
to replenish any funds withdrawn from the Rounding Account on prior Distribution
Dates which have not been repaid. If the remainder of the aggregate amount
allocable to distributions of principal to the Class A-9 Certificates is not an
amount equal to an integral multiple of $1,000, the Trustee shall withdraw from
the Rounding Account, to the extent funds are available therein, the applicable
Rounding Amount.
Any amounts withdrawn by the Trustee from the Rounding Account shall be
deposited in the Certificate Account for distribution to the Holders of Class
A-9 Certificateholders as described in the immediately preceding paragraph.
Funds held in the Certificate Account shall be invested in Eligible Investments
which shall mature not later than one Business Day prior to the Distribution
Date.
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On or promptly after the Credit Support Depletion Date, the Trustee
shall be entitled to withdraw and pay to itself as additional compensation any
remaining amounts on deposit in the Rounding Account.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
Section 4.1 Distributions to Certificateholders. (a) The Trustee shall
establish and maintain a separate account as set forth in Article I (the
"Certificate Account"), the purpose of which is to accept deposits from the
Servicer and to make distributions to the Certificateholders of the amounts set
forth in this Section 4.1.
(b) On each Distribution Date, the Trustee or the Paying
Agent, if any, shall (i) withdraw from the Certificate Account the
Available Distribution Amount for such Distribution Date and shall
distribute to each Certificateholder, from the amount so withdrawn and
to the extent of the Available Distribution Amount, such
Certificateholder's share (based on the aggregate Percentage Interests
represented by the Certificates of the applicable Class held by such
Certificateholder) of the amounts and in the order of priority as set
forth in the definition of "Certificate Distribution Amount", and (ii)
distribute Excess Liquidation Proceeds to the Class R Certificateholder
by wire transfer in immediately available funds for the account of the
Certificateholder, or by any other means of payment acceptable to each
Certificateholder of record on the immediately preceding Record Date
(other than as provided in Section 9.1 respecting the final
distribution), as specified by each such Certificateholder and at the
address of such Holder appearing in the Certificate Register; provided,
that if the Trustee has appointed a Certificate Administrator, such
distributions in (i) and (ii) above shall be made in accordance with
written statements received from the Certificate Administrator pursuant
to Section 4.3.
(c) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal or allocations of
Realized Losses with respect to Loans made on any Distribution Date
shall be binding upon all Holders of such Certificate and of any
Certificate issued upon the registration of transfer or exchange
therefor or in lieu thereof, whether or not such distribution is noted
on such Certificate. The final distribution of principal of each
Certificate (and the final distribution with respect to the Class R
Certificate upon termination of the Trust Fund) shall be payable in the
manner provided above only upon presentation and surrender thereof on
or after the Distribution Date therefor at the office or agency of the
Trustee or Certificate Administrator, if any, specified in the notice
delivered pursuant to Section 4.1(d) or Section 9.1.
(d) Whenever, on the basis of Curtailments, Payoffs and
Monthly Payments on the Loans and Insurance Proceeds and Liquidation
Proceeds received and expected to be
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received during the applicable Prepayment Period, the Trustee believes,
or the Certificate Administrator, if any, has notified the Trustee that
it believes, that the entire remaining unpaid Class Principal Balance
of any Class of Certificates will become distributable on the next
Distribution Date, the Trustee or the Certificate Administrator, if
any, shall, no later than the Determination Date of the month of such
Distribution Date, mail or cause to be mailed to each Person in whose
name a Certificate to be so retired is registered at the close of
business on the Record Date, to the Underwriters and to each Rating
Agency a notice to the effect that:
(i) it is expected that funds sufficient to make such
final distribution will be available in the Certificate
Account on such Distribution Date, and
(ii) if such funds are available, (A) such final
distribution will be payable on such Distribution Date, but
only upon presentation and surrender of such Certificate at
the office or agency of the Certificate Registrar maintained
for such purpose (the address of which shall be set forth in
such notice), and (B) no interest shall accrue on such
Certificate after such Distribution Date.
(e) Prior to the Credit Support Depletion Date, distributions
in reduction of the outstanding Certificate Principal Balance of the
Class A-9 Certificates will be made in integral multiples of $1,000 at
the request of the appropriate representatives of Deceased Holders of
Certificates and at the request of Living Holders of Certificates or by
mandatory distributions, pursuant to Section 4.1(e)(i) and Section
4.1(e)(iv). On and after the Credit Support Depletion Date,
distributions in reduction of the outstanding Certificate Principal
Balances of the Class A-9 Certificates will be made on a pro rata basis
pursuant to Section 4.1(e)(v).
(i) On each Distribution Date prior to the Credit
Support Depletion Date on which principal distributions to the
Class A-9 Certificates are made pursuant to Section 4.1, such
distributions shall be made to the Class A-9
Certificateholders by the Depository pursuant to the
Depository Agreement in the following priority:
(1) first, to requesting Deceased Holders,
in the order in which such requests are received by
the Depository, but not exceeding an aggregate amount
of $25,000 for each requesting Deceased Holder; and
(2) second, to requesting Living Holders, in
the order in which such requests are received by the
Depository, but not exceeding an aggregate amount of
$10,000 for each requesting Living Holder.
Thereafter, the Depository shall make distributions with
respect to the Class A-9 Certificates as provided in clauses
(1) and (2) above up to a second $25,000 and $10,000,
respectively. This sequence of priorities shall be repeated
until the Depository has honored all requests for principal
distributions by Deceased Holders
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and Living Holders to the extent of amounts available for
principal distributions to the Class A-9 Certificates.
All requests for principal distributions to the Class
A-9 Certificates will be accepted in accordance with the
provisions set forth in Section 4.1(e)(iii). Requests for
principal distributions that are received by the Trustee after
the related Record Date and requests for principal
distributions received in a timely manner but not accepted
with respect to any Distribution Date, will be treated as
requests for principal distributions by the Beneficial
Holder(s) making such requests on the next succeeding
Distribution Date, and each succeeding Distribution Date
thereafter, until each such request is accepted or is
withdrawn as provided in Section 4.1(e)(iii). Such requests as
are not so withdrawn shall retain their order of priority
without the need for any further action on the part of the
appropriate Beneficial Holder of the Class A-9 Certificates,
all in accordance with the procedures of the Depository and
the Trustee. Upon the transfer of beneficial ownership of the
Class A-9 Certificates, any distribution request previously
submitted shall be deemed to have been withdrawn only upon the
receipt by the Trustee, on or before the Record Date for any
applicable Distribution Date of notification of such
withdrawal in the manner set forth in Section 4.1(e)(iii)
using a form required by the Depository.
Distributions in reduction of the outstanding
Certificate Principal Balance of the Class A-9 Certificates
shall be applied by the Trustee in an amount equal to the
portion of the Certificate Distribution Amount allocable to
the Class A-9 Certificates, plus any amounts available for
distribution from the Rounding Account established as provided
in Section 3.21, provided that the aggregate distribution of
principal to the Class A-9 Certificateholders on any
Distribution Date shall be made in an integral multiple of
$1,000.
To the extent that the portion of the Certificate
Distribution Amount allocable to the Class A-9 Certificates on
any Distribution Date exceeds the outstanding Certificate
Principal Balance of the Class A-9 Certificates with respect
to which principal distribution requests, as set forth above,
have been received, principal distributions in reduction of
the outstanding Certificate Principal Balance of the Class A-9
Certificates will be made by mandatory distribution pursuant
to Section 4.1(e)(iv).
(ii) The Class A-9 Certificates shall be deemed to be
held by a Deceased Holder for purposes of this Section 4.1(e)
if the death of the Beneficial Holder thereof is deemed to
have occurred by the Trustee. Class A-9 Certificates
beneficially owned by tenants by the entirety, joint tenants
or tenants in common shall be considered to be beneficially
owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common shall be deemed to
be the death of the Beneficial Holder, and the Class A-9
Certificates so beneficially owned shall be eligible for
priority with respect to principal distributions, subject to
the limitations
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stated above. The Class A-9 Certificates beneficially owned by
a trust shall be considered to be beneficially owned by each
beneficiary of the trust to the extent of such beneficiary's
beneficial interest therein, but in no event will a trust's
beneficiaries collectively be deemed to be Beneficial Holders
of a number of Class A-9 Certificates greater than the number
of Class A-9 Certificates of which such trust is the owner.
The death of a beneficiary of a trust shall be deemed to be
the death of a Beneficial Holder of Class A-9 Certificates
beneficially owned by the trust to the extent of such
beneficiary's beneficial interest in such trust. The death of
an individual who was a tenant by the entirety, joint tenant
or tenant in common in a tenancy which is the beneficiary of a
trust shall be deemed to be the death of the beneficiary of
such trust. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial
ownership interests in Class A-9 Certificates shall be deemed
to be the death of the holder of such Class A-9 Certificates
regardless of the registration of ownership, if such
beneficial ownership interest can be established to the
satisfaction of the Trustee. Such beneficial interest shall be
deemed to exist in typical cases of street name or nominee
ownership, ownership by a trustee, ownership under the Uniform
Gifts to Minors Act and community property or other joint
ownership arrangements between a husband and wife. Beneficial
interest shall include the power to sell, transfer or
otherwise dispose of Class A-9 Certificates and the right to
receive the proceeds therefrom, as well as interest and
principal distributions, as applicable, payable with respect
thereto. Neither the Trustee nor the Paying Agent shall be
under any duty to determine independently the occurrence of
the death of any Deceased Holder. The Trustee may rely
entirely upon documentation delivered to it pursuant to
Section 4.1(e)(iii) in establishing the eligibility of any
Holder to receive the priority accorded Deceased Holders in
Section 4.1(e)(i).
(iii) Requests for principal distributions to Class
A-9 Certificates shall be made by delivering a written request
therefor to the DTC Participant or Indirect DTC Participant
that maintains the account evidencing such Beneficial Holder's
interest in such Certificate. In the case of a request on
behalf of a Deceased Holder, appropriate evidence of death and
any tax waivers are required to be forwarded to the Trustee,
under separate cover; provided, however, that the Trustee has
no obligation and will incur no liability for failure to
examine the sufficiency of such tax waiver. The DTC
Participant shall in turn make the request of the Depository
(or, in the case of an Indirect DTC Participant, such Indirect
DTC Participant shall notify the related DTC Participant of
such request, which DTC Participant should make the request of
the Depository) on a form required by the Depository and
provided to the DTC Participant. Upon receipt of such request,
the Depository will date and time stamp such request and
forward such request to the Trustee. The Depository may
establish such procedures as it deems fair and equitable to
establish the order of receipt of requests for such
distributions received by it on the same day. None of the
Company, the Servicer, the Paying Agent or the Trustee shall
be liable for any delay
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in delivery of requests for distributions or withdrawals of
such requests by the Depository, a DTC Participant or any
Indirect DTC Participant.
The Trustee shall maintain a list of those DTC
Participants representing the appropriate holders of Class A-9
Certificates that have submitted requests for principal
distributions, together with the order of receipt and the
amounts of such requests. The Trustee shall notify the
Depository as to which requests should be honored on each
Distribution Date at least two Business Days prior to such
Distribution Date and shall notify the Depository as to the
portion of the Certificate Distribution Amount (together with
any amounts available for distribution from the Rounding
Account) to be distributed to Class A-9 Certificates by
mandatory distribution pursuant to Section 4.1(e)(iv).
Requests shall be honored by the Depository in accordance with
the procedures, and subject to the priorities and limitations,
described in this Section 4.1(e). The exact procedures to be
followed by the Trustee and the Depository for purposes of
determining such priorities and limitations will be those
established from time to time by the Trustee or the
Depository, as the case may be. The decisions of the Trustee
and the Depository concerning such matters will be final and
binding on all affected persons.
Class A-9 Certificates that have been accepted for a
distribution shall receive distributions on the applicable
Distribution Date. Such Certificates shall cease to bear
interest on the amount of principal to be distributed on any
Distribution Date after the last calendar day of the month
preceding the month in which such Distribution Date occurs.
Any Beneficial Holder of a Class A-9 Certificate that
has requested a principal distribution may withdraw its
request by so notifying in writing the DTC Participant or
Indirect DTC Participant that maintains such Beneficial
Holder's account. In the event that such account is maintained
by an Indirect DTC Participant, such Indirect DTC Participant
must notify the related DTC Participant which in turn must
forward the withdrawal of such request, on a form required by
the Depository, to the Depository to be forwarded to the
Trustee. If such notice of withdrawal of a request for
distribution has not been received by the Depository and
forwarded to the Trustee on or before the Record Date for the
next Distribution Date, the previously made request for a
principal distribution shall be irrevocable with respect to
the making of principal distributions on such Distribution
Date.
In the event any requests for principal distributions
are rejected by the Trustee for failure to comply with the
requirements of this Section 4.1(e), the Trustee shall return
such request to the appropriate DTC Participant with a copy to
the Depository with an explanation as to the reason for such
rejection.
(iv) To the extent, if any, that principal
distributions to be made to the applicable Class A-9
Certificates on a Distribution Date exceed the aggregate
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amount of principal distribution requests which have been
received on or before the applicable Record Date, as provided
in Section 4.1(e)(i) above, additional Class A-9 Certificates
will be selected to receive mandatory principal distributions
in lots equal to $1,000 in accordance with the then-applicable
Random Lot procedures of the Depository, and the
then-applicable procedures of the DTC Participants and
Indirect DTC Participants representing the Beneficial Holders
(which procedures may or may not be by random lot). The
Trustee shall notify the Depository of the aggregate amount of
the mandatory principal distribution to be made on the next
Distribution Date. The Depository shall then allocate such
aggregate amount among the DTC Participants on a Random Lot
basis. Each DTC Participant and, in turn, each Indirect DTC
Participant shall then select, in accordance with its own
procedures, the applicable Class A-9 Certificates from among
those held in its accounts to receive mandatory principal
distributions, such that the total amount of principal
distributed to the so selected is equal to the aggregate
amount of such mandatory distributions allocated to such DTC
Participant by the Depository and to such Indirect DTC
Participant by its related DTC Participant, as the case may
be. DTC Participants and Indirect DTC Participants that hold
Class A-9 Certificates selected for mandatory principal
distributions are required to provide notice of such mandatory
distributions to the affected Beneficial Holders.
(v) Notwithstanding any provisions herein to the
contrary, on each Distribution Date on and after the Credit
Support Depletion Date, distributions in reduction of the
outstanding Certificate Principal Balance of the Class A-9
Certificates will be made pro rata (based upon their
respective outstanding Certificate Principal Balances) among
the Beneficial Holders of the Class A-9 Certificates and shall
not be made in integral multiples of $1,000 nor pursuant to
requests for distribution or by mandatory distributions as
provided for by this Section 4.1(e).
Subject to the third paragragh of Section 10.1
hereof, in the event that Definitive Certificates representing
Class A-9 Certificates are issued, an amendment to this
Agreement, which may be approved without the consent of any
Certificateholders, shall establish procedures relating to the
manner in which distributions in reduction of the outstanding
Certificate Principal Balance of Class A-9 Certificates are to
be made.
Section 4.2 Statements to Certificateholders. (a) Not later than three
(3) days prior to each Distribution Date, the Servicer shall forward to the
Trustee or the Certificate Administrator, if any, the Servicer's Section 3.10
Report setting forth certain information with respect to the Loans. With each
distribution from the Certificate Account on a Distribution Date, the Trustee or
the Certificate Administrator, if any, shall, based on the information set forth
in the Servicer's Section 3.10 Report, prepare and forward to each
Certificateholder, a statement (each a "Certificateholders' Report") setting
forth, to the extent applicable, the amount of the distribution
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payable to the applicable Class that represents principal and the amount that
represents interest, and the applicable Class Principal Balance after giving
effect to such distribution.
In addition, not later than each Distribution Date, the Certificate
Administrator or Trustee, as applicable, shall forward to such
Certificateholder, the Trustee (if the Trustee has appointed a Certificate
Administrator) and the Depositor an additional report which sets forth with
respect to the Loans:
(i) The number and aggregate Principal Balance of the
Loans delinquent one, two and three months or more;
(ii) The (A) number and aggregate Principal Balance
of Loans with respect to which foreclosure proceedings have
been initiated, and (B) the number and aggregate book value of
Mortgaged Properties acquired through foreclosure, deed in
lieu of foreclosure or other exercise of rights respecting the
Trustee's security interest in the Loans;
(iii) The amount of Special Hazard Coverage available
to the Senior Certificates remaining as of the close of
business on the applicable Determination Date;
(iv) The amount of Bankruptcy Coverage available to
the Certificateholders remaining as of the close of business
on the applicable Determination Date;
(v) The amount of Fraud Coverage available to the
Certificateholders remaining as of the close of business on
the applicable Determination Date;
(vi) The amount of Realized Losses allocable to the
related Certificates on the related Distribution Date and the
cumulative amount of Realized Losses incurred allocated to
such Certificates since the Cut-Off Date;
(vii) The amount of interest accrued but not paid on
the each Class of Certificates entitled to interest since (a)
the prior Distribution Date and (b) the Cut-Off Date;
(viii) The amount of funds advanced by the Servicer
on the related Withdrawal Date; and
(ix) The total amount of Payoffs and Curtailments
received during the related Prepayment Period.
Upon request by any Certificateholder, the Trustee or the Certificate
Administrator (if so appointed by the Trustee), as soon as reasonably
practicable, shall provide the requesting
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Certificateholder with such information as is necessary and appropriate, in
Trustee's or the Certificate Administrator's sole discretion, for purposes of
satisfying applicable reporting requirements under Rule 144A of the Securities
Act.
(b) Upon request to the Trustee or Certificate Administrator (if so
appointed by the Trustee) by any Certificateholder who is a Holder thereof at
the time of making such request (an "Eligible Certificateholder"), the Trustee
or the Certificate Administrator, if applicable, shall provide in electronic
format loan by loan data with respect to the payment experience of the Loans
containing at least the fields of information listed on Exhibit E hereto (based
on information provided by the Servicer). In addition, upon the written request
of any Eligible Certificateholder, the Trustee or the Certificate Administrator
shall provide similar loan by loan data with respect to any prior monthly
remittance report to the Certificateholders pursuant to this Agreement (as and
when such information becomes available). The expense of providing any tape or
disk pursuant to this subsection shall be an expense of the Eligible
Certificateholder.
Section 4.3 Advances by the Servicer; Distribution Reports to the
Trustee. To the extent described below, the Servicer is obligated to advance its
own funds to the Certificate Account to cover any shortfall between (i) payments
scheduled to be received in respect of Loans serviced by such Servicer, and (ii)
the amounts actually deposited in the Certificate Account on account of such
payments. The Servicer's obligation to make any Advance or Advances described in
this Section 4.3 is effective only to the extent that such Advance is, in the
good faith judgment of the Servicer, reimbursable from Insurance Proceeds or
Liquidation Proceeds of the related Loans or recoverable as late Monthly
Payments with respect to the related Loans or otherwise.
Prior to the close of business on each Determination Date, the Servicer
shall determine whether or not it will make an Advance on the next Withdrawal
Date and shall furnish a statement to the Certificate Administrator, if any, the
Trustee, the Paying Agent, if any, and to any Certificateholder requesting the
same, setting forth the aggregate amount to be distributed on the next
succeeding Distribution Date on account of principal and interest in respect of
the Loans, stated separately. In the event that full scheduled amounts of
principal and interest in respect of the related Loans shall not have been
received by or on behalf of the Servicer prior to the Withdrawal Date preceding
such Distribution Date and the Servicer shall have determined that an Advance
shall be made in accordance with this Section 4.3, the Servicer shall so specify
and shall specify the aggregate amount of such Advance.
In the event that the Servicer shall be required to make an Advance, it
shall on the Withdrawal Date either (i) deposit in the Certificate Account an
amount equal to such Advance, (ii) direct the Trustee or the Certificate
Administrator (if so appointed by the Trustee) to make an appropriate entry in
the records of the Certificate Account that funds in such account being held for
future distribution or withdrawal have been, as permitted by this Section 4.3,
used by such Servicer to make such Advance, or (iii) make advances in the form
of any combination of (i) and (ii) aggregating the amount of such Advance. Any
funds being held for future distribution to Certificateholders and so used shall
be replaced by the related Servicer by deposit in the Certificate Account on any
future Withdrawal Date to the extent that funds in the Certificate Account on
the
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related Distribution Date with respect to the related Loans shall be less than
payments to Certificateholders required to be made on such date with respect to
such Loans. The Servicer is entitled to receive from the Custodial Accounts for
P&I established by the Servicer under its supervision amounts received by the
Servicer on particular Loans as late payments of principal and interest or as
Liquidation or Insurance Proceeds and respecting which the Servicer has made an
unreimbursed Advance of principal and interest. The Servicer is also entitled to
receive other amounts from the related Custodial Accounts for P&I established by
the Servicer under its supervision to reimburse the Servicer for prior
Nonrecoverable Advances.
In accordance with Section 3.3, Advances are reimbursable to the
Servicer from cash in the Custodial Account for P&I to the extent that the
Servicer shall determine that any such advances previously made are
Nonrecoverable Advances pursuant to Section 4.4.
In the event that the Trustee has appointed a Certificate
Administrator, prior to 5:00 P.M. New York City time on the Withdrawal Date, the
Certificate Administrator shall provide the Trustee with a statement regarding
the amount of principal and interest, the Residual Distribution Amount and the
Excess Liquidation Proceeds to be distributed to each Class of Certificates on
such Distribution Date (such amounts to be determined in accordance with the
definition of "Certificate Distribution Amount", Section 4.1 hereof and other
related definitions set forth in Article I hereof).
Section 4.4 Nonrecoverable Advances. Any Advance previously made by the
Servicer with respect to a Loan that the Servicer shall determine in its good
faith judgment not to be ultimately recoverable from Insurance Proceeds or
Liquidation Proceeds or otherwise with respect to such Loan or recoverable as
late Monthly Payments with respect to such Loan shall be a Nonrecoverable
Advance. The determination by the Servicer that it has made a Nonrecoverable
Advance or that any advance would constitute a Nonrecoverable Advance, shall be
evidenced by an Officer's Certificate of the Servicer delivered to the Trustee
on the Determination Date and detailing the reasons for such determination.
Notwithstanding any other provision of this Agreement, any insurance policy
relating to the Loans, or any other agreement relating to the Loans to which the
Depositor or the Servicer is a party, (a) the Depositor and the Servicer shall
not be obligated to, and shall not, make any advance that, after reasonable
inquiry and in its sole discretion, the Depositor or the Servicer shall
determine would be a Nonrecoverable Advance, and (b) the Depositor and the
Servicer shall be entitled to reimbursement for any Advance as provided in
Section 3.5 of this Agreement.
Section 4.5 Foreclosure Reports. Each year beginning in 1999 the
Servicer shall make any reports of foreclosures and abandonments of any
Mortgaged Property required by Section 6050J of the Code. In order to facilitate
this reporting process, the Servicer, on or before February 28th of each year,
commencing with 1999, shall provide to the Internal Revenue Service, the Trustee
and the Certificate Administrator, if any, reports relating to each instance
occurring during the previous calendar year in which the Servicer (i) on behalf
of the Trustee acquires an interest in a Mortgaged Property through foreclosure
or other comparable conversion in full or partial satisfaction of a Loan, or
(ii) knows or has reason to know that a Mortgaged Property has been abandoned.
The reports
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from the Servicer shall be in form and substance sufficient to meet the
reporting requirements imposed by such Section 6050J.
Section 4.6 Adjustment of Servicing Fees with Respect to Payoffs. The
aggregate amount of the Servicing Fee subject to retention from deposit into or
withdrawal from the Certificate Account by the Servicer, in any month of
distribution shall be decreased by any Compensating Interest due and owing with
respect to any Loan with respect to which a Payoff has occurred in the related
Prepayment Period. The Servicer shall include the amount of any such
Compensating Interest with the deposits into the Certificate Account on the
related Withdrawal Date. Notwithstanding the foregoing, the amount by which the
Servicing Fee may be reduced with respect to the related Prepayment Period
pursuant to this Section 4.6 shall not exceed an amount greater than the amount
described in clause (i) of the definition of Compensating Interest for all Loans
as to which Payoffs have occurred and the rights of the Certificateholders to
such portion of the Servicing Fee shall not be cumulative.
Section 4.7 Prohibited Transactions Taxes and Other Taxes.
(a) In the event that any tax (including a tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and
including any and all interest, penalties, fines and additions to tax,
as well as any and all reasonable counsel fees and out-of-pocket
expenses incurred in contesting the imposition of such tax) is imposed
on the Trust Fund and is not otherwise paid pursuant to Section 4.7(b)
hereof, the Servicer shall pay such taxes when and as the same shall be
due and payable (but such obligation shall not prevent the Servicer,
the Trustee, the Certificate Administrator, if any, or any other
appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such
proceedings); provided, that the Servicer shall be entitled to be
indemnified for any such taxes (excluding taxes referred to in Section
4.7(b)) to the extent set forth in Section 6.3 hereof so long as the
Servicer's failure to exercise reasonable care with respect to the
performance of its duties hereunder was not the primary cause of the
imposition of such taxes. If the Servicer is indemnified for such taxes
pursuant to this Section 4.7(a), such amount shall be first charged
against amounts otherwise distributable to the Holders of Component R-1
of the Class R Certificate (or, if the tax relates to REMIC II,
Component R-2 of the Class R Certificate) on a pro rata basis, then
against amounts otherwise distributable with respect to the REMIC I
Regular Interests (or, if the tax relates to REMIC II, to the Holders
of the REMIC II Certificates) on a pro rata basis. The Trustee is
hereby authorized to retain from amounts otherwise distributable to the
Certificateholders sufficient funds to reimburse the Servicer for the
payment of such tax for which the Servicer is entitled to
indemnification.
(b) The Servicer shall pay on written demand, and shall
indemnify and hold harmless the Trust Fund from and against, any and
all taxes imposed on the Trust Fund (including, for this purpose, any
and all interest, penalties, fines and additions to tax, as well
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as any and all reasonable counsel fees and out-of-pocket expenses
incurred in contesting the imposition of such tax).
Section 4.8 Tax Administration.
(a) The Trustee is hereby appointed as attorney-in-fact and
agent for the initial Tax Matters Person; provided, that the Trustee
may appoint, and hereby does so appoint, the Certificate Administrator
as attorney-in-fact and agent for the Tax Matters Person. The Trustee
may, by written notice delivered to the Certificate Administrator,
revoke the appointment of the Certificate Administrator as
attorney-in-fact and agent for the Tax Matters Person, in which case
the Trustee shall act in such capacity.
(b) In order to enable the Trustee or the Certificate
Administrator, as applicable, to perform its duties as set forth in
this Section 4.8 and Section 3.1(b), the Servicer agrees to provide any
tax forms, instruments or other documents related thereto, as the
Trustee or the Certificate Administrator, as applicable, may reasonably
request, including, without limitation, any tax forms, instruments or
other documents prepared by the Servicer pursuant to this Section 4.8.
In order to enable the Trustee or the Certificate Administrator, as
applicable, to perform its duties as set forth in this Section 4.8 and
Section 3.1(b), the Servicer shall use its best efforts to cause to be
delivered to the Trustee or the Certificate Administrator, as
applicable, within ten (10) days after the Closing Date all information
or data that the Trustee or the Certificate Administrator, as
applicable, determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash
flows. Thereafter, the Servicer shall use its best efforts to provide
to the Trustee or the Certificate Administrator, as applicable,
promptly upon request therefor, any such additional information or data
that the Trustee or the Certificate Administrator, as applicable, may,
from time to time, request in order to enable the Trustee or the
Certificate Administrator, as applicable, to perform its duties as set
forth in this Section 4.8 and Section 3.1(b).
Section 4.9 Equal Status of Servicing Fee. The right of the Servicer to
receive its Servicing Fee will be equal and not subordinate to the right of the
Certificateholders to receive principal and interest payments based on their
interests as provided herein. The Servicer's Servicing Fee may be collected from
Monthly Payments as received pursuant to Section 3.2 without deposit into the
Certificate Account, whereas the Certificateholders' distributions shall be made
on a delayed basis as set forth in the terms of the Certificates.
Section 4.10 Appointment of Paying Agent and Certificate Administrator.
The Trustee may appoint an Eligible Institution to act as a paying agent (the
"Paying Agent") or a certificate administrator (the "Certificate
Administrator"), as the case may be, in order to delegate to such Eligible
Institution any of its duties under this Agreement to administer the issuance,
transfer and exchange of the Certificates, administer payments to
Certificateholders or prepare information related to the Certificates; provided,
that the Trustee shall remain primarily responsible for any
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duties so delegated; provided, further, that the Trustee shall receive no
additional compensation in connection with such appointment and delegation.
Initially, LaSalle National Bank will be the Certificate Administrator
and Paying Agent. If LaSalle National Bank ceases to serve as Certificate
Administrator or Paying Agent, the Trustee shall send written notice to all
Certificateholders (i) indicating that LaSalle National Bank is no longer in
such capacity and (ii) setting forth its replacement, if any, appointed pursuant
to this Section 4.10.
ARTICLE V
THE CERTIFICATES
Section 5.1 The Certificates.
(a) The Certificates shall be substantially in the forms set
forth in Exhibits A and B attached hereto, and shall be executed by the
Trustee, authenticated by the Trustee (or any duly appointed
Authenticating Agent) and delivered to or upon the order of the
Depositor upon receipt by the Trustee of the documents specified in
Section 2.1. The Certificates shall be issuable in Authorized
Denominations evidencing Percentage Interests. Certificates shall be
executed by manual or facsimile signature on behalf of the Trustee by
authorized officers of the Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were at the time of execution
the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the
form provided for herein executed by the Trustee or any Authenticating
Agent by manual signature, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) The following definitions apply for purposes of this
Section 5.1: "Disqualified Organization" means any Person which is not
a Permitted Transferee, but does not include any "Pass-Through Entity"
which owns or holds a Residual Certificate and of which a Disqualified
Organization, directly or indirectly, may be a stockholder, partner or
beneficiary; "Pass-Through Entity" means any regulated investment
company, real estate investment trust, common trust fund, partnership,
trust or estate, and any organization to which Section 1381 of the Code
applies; "Ownership Interest" means, with respect to any Residual
Certificate, any ownership or security interest in such Residual
Certificate, including any interest in a Residual Certificate as the
Holder thereof and any other interest therein whether direct or
indirect, legal or beneficial, as owner or as pledgee; "Transfer"
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means any direct or indirect transfer or sale of, or directly or
indirectly transferring or selling, any Ownership Interest in a
Residual Certificate; and "Transferee" means any Person who is
acquiring by Transfer any Ownership Interest in a Residual Certificate.
(c) Restrictions on Transfers of the Residual Certificate to
Disqualified Organizations are set forth in this Section 5.1(c).
(i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee, the Certificate
Administrator or the Paying Agent under clause (iii)(A) below
to deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of transfer and
to do all other things necessary in connection with any such
sale. The rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to
the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be
a Permitted Transferee and shall promptly notify the
Trustee or the Certificate Registrar if not the same
Person as the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer
of any Ownership Interest in a Residual Certificate
to a U.S. Person, the Trustee or the Certificate
Registrar if not the same Person as the Trustee shall
require delivery to it, and shall not register the
Transfer of any Residual Certificate until its
receipt of (1) an affidavit and agreement (a
"Transferee Affidavit and Agreement") attached hereto
as Exhibit J from the proposed Transferee, in form
and substance satisfactory to the Depositor,
representing and warranting, among other things, that
it is not a Non-U.S. Person, that such transferee is
a Permitted Transferee, that it not acquiring its
Ownership Interest in the Residual Certificate that
is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a
Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it
will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section
5.1(c) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit I, from the
Holder wishing to transfer the Residual Certificate,
in form and substance satisfactory to the Depositor,
representing and warranting, among other things, that
no purpose of the proposed Transfer is to allow such
Holder to impede the assessment or collection of tax.
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(C) Notwithstanding the delivery of a
Transferee Affidavit and Agreement by a proposed
Transferee under clause (B) above, if the Trustee or
the Certificate Registrar if not the same Person as
the Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Residual Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate agrees
by holding or acquiring such Ownership Interest (i)
to require a Transferee Affidavit and Agreement from
any other Person to whom such Person attempts to
transfer its Ownership Interest and to provide a
certificate to the Trustee or the Certificate
Registrar if not the same Person as the Trustee in
the form attached hereto as Exhibit J; (ii) to obtain
the express written consent of the Depositor prior to
any transfer of such Ownership Interest, which
consent may be withheld in the Depositor's sole
discretion; and (iii) to provide a certificate to the
Trustee or the Certificate Registrar if not the same
Person as the Trustee in the form attached hereto as
Exhibit I.
(ii) The Trustee or the Certificate Registrar if not
the same Person as the Trustee shall register the Transfer of
any Residual Certificate only if it shall have received the
Transferee Affidavit and Agreement, a certificate of the
Holder requesting such transfer in the form attached hereto as
Exhibit J and all of such other documents as shall have been
reasonably required by the Trustee or the Certificate
Registrar if not the same Person as the Trustee as a condition
to such registration.
(iii) (A) If any "disqualified organization" (as
defined in Section 860E (e)(5) of the Code) shall become a
Holder of a Residual Certificate, then the last preceding
Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. If any Non-U.S. Person
shall become a Holder of a Residual Certificate, then the last
preceding Holder which is a U.S. Person shall be restored, to
the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of the
Transfer to such Non- U.S. Person of such Residual
Certificate. If a transfer of a Residual Certificate is
disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. The Trustee, the
Certificate Administrator, the Certificate Registrar and the
Paying Agent shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in
fact not permitted by this Section 5.1(c) or for making any
payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the
provisions of this Agreement.
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(B) If any purported Transferee shall become
a Holder of the Residual Certificate in violation of
the restrictions in this Section 5.1(c) and to the
extent that the retroactive restoration of the rights
of the Holder of such Residual Certificate as
described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Depositor shall
have the right, without notice to the Holder or any
prior Holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by
the Depositor on such terms as the Depositor may
choose. Such purported Transferee shall promptly
endorse and deliver the Residual Certificate in
accordance with the instructions of the Depositor.
Such purchaser may be the Depositor itself or any
affiliate of the Depositor. The proceeds of such
sale, net of the commissions (which may include
commissions payable to the Depositor or its
affiliates), expenses and taxes due, if any, shall be
remitted by the Depositor to such purported
Transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the
sole discretion of the Depositor, and the Depositor
shall not be liable to any Person having an Ownership
Interest in the Residual Certificate as a result of
its exercise of such discretion.
(iv) The Depositor, on behalf of the Trustee, shall
make available, upon written request from the Trustee, or the
Certificate Administrator all information necessary to compute
any tax imposed (A) as a result of the Transfer of an
Ownership Interest in the Residual Certificate to any Person
who is not a Permitted Transferee, including the information
regarding "excess inclusions" of such Residual Certificate
required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulation Section
1.860D-1(b)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organizations described in
Section 1381 of the Code having as among its record holders at
any time any Person who is not a Permitted Transferee.
Reasonable compensation for providing such information may be
required by the Depositor from such Person.
(v) The provisions of this Section 5.1 set forth
prior to this Section 5.1(c)(v) may be modified, added to or
eliminated, provided, that there shall have been delivered to
the Trustee and the Certificate Administrator the following:
(A) written notification from each Rating
Agency to the effect that the modification, addition
to or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current
Ratings of the Certificates; and
(B) an Opinion of Counsel, in form and
substance satisfactory to the Depositor (as evidenced
by a certificate of the Depositor), to the effect
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that such modification, addition to or absence of
such provisions will not cause the Trust Fund to
cease to qualify as a REMIC and will not create a
risk that (1) the Trust Fund may be subject to an
entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a
Permitted Transferee or (2) a Certificateholder or
another Person will be subject to a REMIC-related tax
caused by the Transfer of a Residual Certificate to a
Person which is not a Permitted Transferee.
(vi) The following legend shall appear on all
Residual Certificates:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE MAY BE MADE ONLY IF THE
PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE DEPOSITOR, THE TRUSTEE AND THE
CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE
IS NOT EITHER (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 HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE
OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH
AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS
AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE
OR OTHER DISPOSITION OF THIS CLASS R 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
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HOLDER OF THE CLASS R CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
(vii) The Holder of the Class R Certificate issued
hereunder, while not a Disqualified Organization, is the Tax
Matters Person.
(d) In the case of any Class A-10, Subordinate or Class R
Certificate presented for registration in the name of an employee
benefit plan or other plan or arrangement subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) (a "Plan"), a
trustee of any Plan, or any other Person who is using the "plan assets"
of any Plan to effect such acquisition, the Trustee or the Certificate
Registrar, if not the same Person as the Trustee, shall require such
transferee to provide an Officer's Certificate signed by a Responsible
Officer of such transferee stating that the transferee is an insurance
company using assets of an "insurance company general account" (within
the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60) to effect such purchase and satisfies all of
the requirements for exemptive relief under Sections I and III of PTCE
95-60, which Officer's Certificate shall not be an expense of the
Trustee, the Certificate Administrator, if any, the Certificate
Registrar or the Depositor.
So long as the Class A-10, Class M, Class B-1 and Class B-2
Certificates are Book-Entry Certificates, each Person who has or who
acquires any Class M or Class B Certificates shall be deemed by the
acceptance or acquisition of such Certificate to have represented that
(a) such Person is not a Plan, and such Person is not using "plan
assets" of any such Plan to effect such acquisition or (b) if the
transferee is an insurance company and the source of funds used to
purchase such Certificate is an "insurance company general account" (as
such term is defined in PTCE 95-60) and the conditions set forth in
Sections I and III of PTCE 95-60 have been satisfied.
(e) No transfer, sale, pledge or other disposition of a Junior
Subordinate Certificate shall be made unless such transfer, sale,
pledge or other disposition is made in accordance with this Section
5.1(e) or Section 5.1(f). Each Person who, at any time, acquires any
ownership interest in any Junior Subordinate Certificate shall be
deemed by the acceptance or acquisition of such ownership interest to
have agreed to be bound by the following provisions of this Section
5.1(e) and Section 5.1(f), as applicable. No transfer of a Junior
Subordinate Certificate shall be deemed to be made in accordance with
this Section 5.1(e) unless such transfer is made pursuant to an
effective registration statement under the Securities Act or unless the
Trustee or the Certificate Registrar, if not the same Person as the
Trustee, is provided with the certificates and an Opinion of Counsel,
if required, on which the Trustee and the Certificate Registrar may
conclusively rely, which establishes or establish to the Trustee's or
the Certificate Registrar's, as applicable, satisfaction that such
transfer is exempt from the registration requirements under the
Securities Act, as follows: In the event that a transfer is to be made
in reliance upon an
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exemption from the Securities Act, the Trustee or the Certificate
Registrar, if not the same Person as the Trustee, shall require, in
order to assure compliance with the Securities Act, that the
Certificateholder desiring to effect such transfer certify to the
Trustee and the Certificate Registrar in writing, in substantially the
form attached hereto as Exhibit F, the facts surrounding the transfer,
with such modifications to such Exhibit F as may be appropriate to
reflect the actual facts of the proposed transfer, and that the
Certificateholder's proposed transferee certify to the Trustee and the
Certificate Registrar in writing, in substantially the form attached
hereto as Exhibit G, the facts surrounding the transfer, with such
modifications to such Exhibit G as may be appropriate to reflect the
actual facts of the proposed transfer. If such certificate of the
proposed transferee does not contain substantially the substance of
Exhibit G, the Trustee or the Certificate Registrar, if not the same
Person as the Trustee, shall require an Opinion of Counsel satisfactory
to it that such transfer may be made without registration, which
Opinion of Counsel shall not be obtained at the expense of the Trustee,
the Certificate Administrator, the Certificate Registrar, the Trust
Fund or the Depositor. Such Opinion of Counsel shall allow for the
forwarding, and the Trustee shall forward, a copy thereof to each
Rating Agency. Notwithstanding the foregoing, any Class of Junior
Subordinate Certificates may be transferred, sold, pledged or otherwise
disposed of in accordance with the requirements set forth in Section
5.1(f).
(f) Transfers of the Junior Subordinate Certificates may be
made in accordance with this Section 5.1(f). To effectuate a
Certificate transfer in accordance with this Section 5.1(f), the
proposed transferee of such Certificate must provide the Trustee, the
Certificate Registrar and the Depositor with an investment letter
substantially in the form of Exhibit L attached hereto, which
investment letter shall not be an expense of the Trustee, the
Certificate Administrator, the Certificate Registrar or the Depositor,
and which investment letter states that, among other things, such
transferee (i) is a "qualified institutional buyer" as defined under
Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A, and (ii)
is aware that the proposed transferor intends to rely on the exemption
from registration requirements under the Securities Act provided by
Rule 144A. Notwithstanding the foregoing, the proposed transferee of
such Certificate shall not be required to provide the Trustee, the
Certificate Registrar or the Depositor with Annex 1 or Annex 2 to the
form of Exhibit L attached hereto if the Depositor so consents prior to
each such transfer. Such transfers shall be deemed to have complied
with the requirements of this Section 5.1(f). The Holder of a
Certificate desiring to effect such transfer does hereby agree to
indemnify the Trustee, the Certificate Administrator, if any, the
Depositor, and the Certificate Registrar against any liability that may
result if transfer is not made in accordance with this Agreement.
(g) None of the Trustee, the Certificate Administrator, the
Certificate Registrar or the Paying Agent shall have any liability to
the Trust Fund arising from a registration or transfer of a Certificate
in reliance upon a certification, Officer's Certificate, affidavit,
ruling or Opinion of Counsel described in this Section 5.1.
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Section 5.2 Certificates Issuable in Classes; Distributions of
Principal and Interest; Authorized Denominations. The aggregate principal amount
of Certificates that may be authenticated and delivered under this Agreement is
limited to the aggregate Principal Balance of the Loans as of the Cut-Off Date,
as specified in the Preliminary Statement to this Agreement, except for
Certificates authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Certificates pursuant to Section 5.3. Such
aggregate principal amount shall be allocated among one or more Classes having
designations, types of interests, initial per annum Remittance Rates, initial
Class Principal Balances, initial Component Principal Balances and last
scheduled Distribution Dates as specified in the Preliminary Statement to this
Agreement. The aggregate Percentage Interest of each Class of Certificates of
which the Class Principal Balance equals zero as of the Cut-Off Date that may be
authenticated and delivered under this Agreement is limited to 100%.
Certificates shall be issued in Authorized Denominations.
Section 5.3 Registration of Transfer and Exchange of Certificates. The
Trustee shall cause to be maintained at one of its offices or at its designated
Certificate Registrar, a Certificate Register in which there shall be recorded
the name and address of each Certificateholder. Subject to such reasonable rules
and regulations as the Trustee may prescribe, the Certificate Register shall be
amended from time to time by the Trustee or its agent to reflect notice of any
changes received by the Trustee or its agent pursuant to Section 10.5. The
Trustee hereby appoints itself as the initial Certificate Registrar. The Trustee
may appoint an Eligible Institution to act as its agent in order to delegate to
such Eligible Institution its duties as Certificate Registrar under this
Agreement.
Upon surrender for registration of transfer of any Certificate to the
Trustee at the office of First Trust of New York, National Association, 100 Wall
Street, Suite 1600, New York, NY 10005, Attention: Glenn Anderson, or such other
address or agency as may hereafter be provided to the Certificate Administrator,
if any, and the Servicer in writing by the Trustee, the Trustee shall execute,
and the Trustee or any Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of Authorized Denominations of like Percentage Interest. At the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in Authorized Denominations of like Percentage Interest, upon
surrender of the Certificates to be exchanged at any such office or agency.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, and the Trustee, or any Authenticating Agent, shall authenticate and
deliver, the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer
shall (if so required by the Trustee or any Authenticating Agent) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee or any Authenticating Agent and duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing.
A reasonable service charge may be made for any such exchange or
transfer of Certificates, and the Trustee or an Authenticating Agent may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange or transfer of Certificates.
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Upon the transfer of a Class Certificate each transferee that purchases
a Class A Certificate with the assets of one or more Plans shall be deemed to
represent that each such Plan qualifies as an "accredited investor" as defined
in Rule 501(a)(1) of Regulation D under the Securities Act. If at any time the
Class A Certificates fail to receive a rating from any of S&P or Fitch that is
one of the three highest generic rating categories for that respective rating
agency, then such Class A Certificate shall not thereafter be eligible for
transfer to a Plan, and each transferee shall be deemed to represent that it is
not purchasing or holding its Class A Certificate with plan assets of a Plan.
All Certificates surrendered for exchange or transfer shall be
cancelled by the Trustee or any Authenticating Agent.
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee or any Authenticating
Agent, or (ii) the Trustee or any Authenticating Agent receives evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
there is delivered to the Trustee or any Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or any Authenticating Agent that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Trustee or any Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Percentage Interest. Upon the
issuance of any new Certificate under this Section 5.4, the Trustee or any
Authenticating Agent may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or any
Authenticating Agent) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.4 shall constitute complete and indefeasible evidence
of ownership in the Trust Fund, as if originally issued, whether or not the lost
or stolen Certificate shall be found at any time.
Section 5.5 Persons Deemed Owners. The Depositor, the Certificate
Administrator, the Servicer, the Trustee and any agent of any of them 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 4.1
and for all other purposes whatsoever, and neither the Depositor, the
Certificate Administrator, if any, the Servicer, the Trustee, the Certificate
Registrar nor any agent of the Depositor, the Certificate Administrator, if any,
the Servicer or the Trustee shall be affected by notice to the contrary.
Section 5.6 Temporary Certificates. Upon the initial issuance of the
Certificates, the Trustee may execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, temporary Certificates which are printed,
lithographed, typewritten or otherwise produced, in any Authorized Denomination,
of the tenor of the definitive Certificates in lieu of which they are issued and
with such variations in form from the forms of the Certificates set forth as
Exhibits A and B hereto as the Trustee's officers executing such Certificates
may determine, as evidenced by their execution of the Certificates.
Notwithstanding the foregoing, the Certificates may remain in the form set forth
in this Section.
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If temporary Certificates are issued, the Trustee shall cause
definitive Certificates to be prepared within ten Business Days of the Closing
Date or as soon as practicable thereafter. After preparation of definitive
Certificates, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of the temporary Certificates at the office or
agency of the Trustee to be maintained as provided in Section 5.10 hereof,
without charge to the Holder. Any tax or governmental charge that may be imposed
in connection with any such exchange shall be borne by the Depositor. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Certificates of Authorized Denominations. Until so exchanged, the
temporary Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 5.7 Book-Entry for Book-Entry Certificates. Notwithstanding the
foregoing, the Book-Entry Certificates, upon original issuance, shall be issued
in the form of one or more typewritten Certificates of Authorized Denomination
representing the Book-Entry Certificates, to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of Cede & Co., the nominee of DTC, as the initial Clearing Agency, and no
Beneficial Holder shall receive a definitive certificate representing such
Beneficial Holder's interest in any Class of Book-Entry Certificate, except as
provided above and in Section 5.9. Each Book-Entry Certificate shall bear the
following legend:
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Trustee 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 is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Unless and until definitive, fully registered Book-Entry Certificates (the
"Definitive Certificates") have been issued to the Beneficial Holders pursuant
to Section 5.9:
(a) the provisions of this Section 5.7 shall be in full force
and effect with respect to the Book-Entry Certificates;
(b) the Certificate Administrator, if any, and the Trustee may
deal with the Clearing Agency for all purposes with respect to the
Book-Entry Certificates (including the making of distributions on the
Book-Entry Certificates) as the sole Certificateholder;
(c) to the extent that the provisions of this Section 5.7
conflict with any other provisions of this Agreement, the provisions of
this Section 5.7 shall control; and
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(d) the rights of the Beneficial Holders shall be exercised
only through the Clearing Agency and the DTC Participants and shall be
limited to those established by law and agreements between such
Beneficial Holders and the Clearing Agency and/or the DTC Participants.
Pursuant to the Depositary Agreement, unless and until Definitive
Certificates are issued pursuant to Section 5.9, the initial Clearing
Agency will make book-entry transfers among the DTC Participants and
receive and transmit distributions of principal and interest on the
related Class of Book-Entry Certificates to such DTC Participants.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of Book-Entry
Certificates evidencing a specified Percentage Interest, such direction or
consent may be given by the Clearing Agency at the direction of Beneficial
Holders owning Book-Entry Certificates evidencing the requisite Percentage
Interest represented by the Book-Entry Certificates. The Clearing Agency may
take conflicting actions with respect to the Book-Entry Certificates to the
extent that such actions are taken on behalf of the Beneficial Holders.
Section 5.8 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 5.9, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related DTC Participants in accordance with its applicable
rules, regulations and procedures.
Section 5.9 Definitive Certificates. If (a) the Clearing Agency
notifies the Certificate Administrator, if any, or the Trustee that it is no
longer willing or able to discharge properly its responsibilities under the
Depositary Agreement with respect to the Book-Entry Certificates and the Trustee
or the Certificate Administrator is unable to locate a qualified successor, (b)
the Depositor, at its option, advises the Certificate Administrator, if any, or
the Trustee in writing that it elects to terminate the book-entry system with
respect to the Book-Entry Certificates through the Clearing Agency or (c) after
the occurrence of an Event of Default, Certificateholders holding Book-Entry
Certificates evidencing Percentage Interests aggregating not less than 66% of
the aggregate Class Principal Balance of such Certificates advise the
Certificate Administrator, if any, or the Trustee and the Clearing Agency
through DTC Participants in writing that the continuation of a book-entry system
with respect to the Book-Entry Certificates through the Clearing Agency is no
longer in the best interests of the Certificateholders with respect to such
Certificates, the Trustee shall notify or cause to be notified all
Certificateholders of Book-Entry Certificates of the occurrence of any such
event and of the availability of Definitive Certificates. Upon surrender to the
Trustee of the Book- Entry Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the Trustee
shall execute and the Trustee or any Authenticating Agent shall authenticate and
deliver the Definitive Certificates. Neither the Depositor, the Certificate
Administrator, if any, the Authenticating Agent nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for all of the Certificates all
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references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Trustee, the
Certificate Administrator, if any, and the Trustee, the Certificate
Administrator, the Certificate Registrar and the Paying Agent shall recognize
the Holders of Definitive Certificates as Certificateholders hereunder.
Section 5.10 Office for Transfer of Certificates. The Trustee shall
maintain in New York, New York, an office or agency where Certificates may be
surrendered for registration of transfer or exchange. First Trust of New York,
National Association, 100 Wall Street, Suite 1600, New York, New York 10005,
Attention: Glenn Anderson, is initially designated for said purposes.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.1 Liability of the Depositor and the Servicer. The Depositor
and the Servicer shall each be liable in accordance herewith only to the extent
of the obligations specifically imposed by this Agreement and undertaken
hereunder by the Depositor and the Servicer herein.
Section 6.2 Merger or Consolidation of the Depositor or the Servicer.
Subject to the following paragraph, the Depositor and the Servicer each will
keep in full effect its existence, rights and franchises as corporations, each
under the laws of the jurisdiction 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
Loans and to perform its respective duties under this Agreement.
The Depositor or the Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or Servicer shall be a party, or any Person succeeding to
the business of the Depositor or Servicer, shall be the successor of the
Depositor or Servicer hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 6.3 Limitation on Liability of the Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect any director, officer,
employee or agent of the Servicer against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder, nor shall this provision protect the Servicer against any
liability that would otherwise be imposed by reason of negligence in the
performance of duties hereunder. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising
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hereunder. The Servicer and any director, officer, employee or agent of the
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability or
expense, in the case of the Servicer and any director, officer, employee or
agent of the Servicer, incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder or, in the case of the Servicer,
as Servicer, incurred by reason of negligence in the performance of any duties
hereunder. The Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties to
service the Loans in accordance with this Agreement and which in its opinion may
involve it in any expense or liability; provided, however, that the Servicer may
in its discretion undertake any such action which it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund, and the Servicer
shall be entitled to be reimbursed therefor out of the Custodial Account for P&I
as provided by Section 3.3.
Section 6.4 Servicer Not to Resign. The Servicer shall not resign from
the obligations and duties hereby imposed on it, except upon determination that
its duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it, the other activities of the Servicer so causing such a conflict being
of a type and nature carried on by the Servicer at the date of this Agreement.
Any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. The
Servicer shall notify each Rating Agency of any such resignation. No such
resignation shall become effective until a successor servicer shall have assumed
the Servicer's responsibilities and obligations in accordance with Section 7.5
hereof.
Notwithstanding the limitations stated above, the Servicer may transfer
its obligations, duties and rights hereunder without the consent of the
Certificateholders, provided, that (i) the Servicer obtains the prior written
consent of each Rating Agency, (ii) the transferee is a FNMA- or FHLMC-approved
servicer having a net worth of not less than $15,000,000, (iii) the successor
servicer assumes all of the Servicer's responsibilities and obligations in
accordance with Section 7.5 hereof, and (iv) the then-current rating of the
Class A Certificates will not be reduced as a result of such transfer, and (v)
the successor servicer has, in the reasonable opinion of the Trustee, the
qualifications, resources and experience to properly carry out, observe and
perform the duties, obligations and responsibilities of Servicer hereunder;
provided, that the foregoing clause (v) is intended solely for the benefit of
(and may be exercised or waived at the sole discretion of) the Trustee, to
enable the Trustee to assure itself that any successor Servicer has such
acceptable qualifications, resources and experience, and such clause (v) is not
intended to be for the benefit of, and shall not be relied upon or enforced by,
any Certificateholder, and provided, further, that any consent to such transfer
will not be unreasonably withheld by the Trustee.
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ARTICLE VII
DEFAULT
Section 7.1 Events of Default. In case one or more of the following
Events of Default by the Servicer shall occur and be continuing, that is to say:
(i) any failure by the Servicer to distribute or
cause to be distributed to the Trustee or its delegate on the
Withdrawal Date any payment required to be made to the Trustee
under the terms of this Agreement;
(ii) any failure on the part of the Servicer duly to
observe or perform in any material respect any other of the
covenants or agreements on the part of the Servicer in the
Certificates or in this Agreement which continues unremedied
for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee, or to the Servicer
and the Trustee by the Holders of Certificates evidencing, in
aggregate, not less than 25% of the Trust Fund or 51% of the
aggregate Percentage Interests of any Class of Certificates;
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, shall have been entered against
the Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days;
(iv) the Servicer shall consent to the appointment of
a conservator or receiver or liquidator or liquidating
committee in any insolvency, readjustment of debt marshalling
of assets and liabilities, voluntary liquidation or similar
proceedings of or relating to the Servicer or of or relating
to all or substantially all of its property;
(v) the Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition
to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of
its creditors or voluntarily suspend payment of its
obligations; or
(vi) any failure of the Servicer to make any Advance
required to be made from its own funds pursuant to Section 4.3
which continues unremedied for a period of one Business Day
after the date upon which such Advance was to have been made;
then, if an Event of Default described in clauses (i)-(v) of this Section 7.1
shall occur, and in each and every such case, subject to applicable law, so long
as an Event of Default shall not have been
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remedied, either the Trustee or the Holders of Certificates evidencing, in
aggregate, not less than 25% of the Trust Fund or 51% of the aggregate
Percentage Interests of any Class of Certificates by notice in writing to the
Servicer (and to the Trustee if given by the Certificateholders) may terminate
all of the rights and obligations of the Servicer under this Agreement, but
without prejudice to any rights it may have to reimbursement of expenses,
Advances and other advances of its own funds as Servicer to the extent permitted
by this Agreement, other than the Depositor's (or its successors') obligation to
repurchase any Loans pursuant to Section 2.2 or 2.3 shall survive any such
termination. If an Event of Default described in clause (vi) hereof shall occur,
the Trustee shall, by notice in writing to the Servicer, which shall be
telecopied to the Servicer, immediately terminate all of the rights and
obligations of the Servicer, under this Agreement and in and to the Loans and
the proceeds thereof. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Certificates or the Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section 7.1 (subject to the
provisions of Section 7.5); and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the 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 Loans and related documents or otherwise at the
expense of the Servicer. The Servicer agrees to cooperate with the Trustee in
effecting the termination of the Servicer's responsibilities and rights
hereunder and shall promptly provide the Trustee all documents and records
whether in written or electronic form reasonably requested by it to enable it to
assume the Servicer's functions hereunder and shall promptly also transfer to
the Trustee of this Agreement all amounts which then have been or should have
been deposited in the Custodial Account for P&I by the Servicer or which are
thereafter received with respect to the Loans as well as any escrowed funds held
by it or in connection with its servicing activities hereunder. The Servicer and
the Trustee shall give each Rating Agency notice of any Event of Default.
Section 7.2 Other Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 7.1, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies, and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 7.3 Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing, in aggregate, not less than 25% of the Trust Fund or
51% of the aggregate Percentage Interests of any Class of Certificates may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under
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this Agreement; provided, however, that the Trustee shall be under no obligation
to pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Servicer or any successor servicer from
its rights and duties as servicer hereunder) at the request, order or direction
of any of the Certificateholders, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; and,
provided, further, that, subject to the provisions of Section 8.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee, in
accordance with an Opinion of Counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal liability
or be unjustly prejudicial to the non-assenting Certificateholders or if the
Trustee has received contrary directions pursuant to this Section 7.3.
Section 7.4 Action upon Certain Failures of Servicer and upon Event of
Default. In the event that the Trustee shall have knowledge of any failure of
the Servicer specified in Section 7.1 (i) or (ii) which would become an Event of
Default upon the Servicer's failure to remedy the same after notice, the Trustee
shall give notice thereof to the Servicer. In the event that the Trustee shall
have knowledge of an Event of Default, the Trustee shall give prompt written
notice thereof to the Certificateholders and to each Rating Agency. For all
purposes of this Agreement, in the absence of actual knowledge by a Responsible
Officer of the Trustee, the Trustee shall not be deemed to have knowledge of any
failure of the Servicer as specified in Section 7.1(i) and (ii) or any Event of
Default unless notified thereof in writing by the Servicer or by a
Certificateholder.
Section 7.5 Appointment of Successor Servicer.
(a) When the Servicer receives a notice of termination
pursuant to Section 7.1 or the Trustee receives the resignation of the
Servicer evidenced by an Opinion of Counsel pursuant to Section 6.4,
the Trustee shall become the successor in all respects to the Servicer
in its capacity as Servicer under this Agreement and the transactions
set forth or provided for herein, provided, however, that the Trustee's
obligation to make any Advances shall be no greater than set forth in
Section 4.3 of this Agreement, and the Trustee shall have all the
rights and powers and be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms
and provisions hereof and in its capacity as such successor shall have
the same limitation of liability herein granted to the Servicer and
provided, further, that the Trustee shall not be required to make an
Advance from its own funds if such Advance would be prohibited by law.
As compensation therefor, the Trustee shall be entitled to receive
monthly an amount not to exceed the Servicing Fee as agreed by the
Trustee and the Servicer, together with such other servicing
compensation in the form of assumption fees, late charges, prepayment
fees or otherwise provided in Section 3.9. If the agreed amount is less
than the Servicing Fee, the excess shall be paid to the Class R
Certificateholder. If the Trustee and the Servicer shall not agree on
the amount of such compensation, the Trustee shall solicit bids for a
successor servicer as described in Section 7.5(b), provided, however,
if no successor servicer is obtained through the bidding process,
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the Trustee may act as such, or may pursuant to Section 7.5(b) appoint
a successor servicer to act as such, for the Servicing Fee together
with such other servicing compensation as provided in Section 3.9. In
no event shall the Trustee's assumption of or succession to the
obligations of the Servicer make the Trustee liable for any actions or
omissions of the Servicer in its capacity as Servicer.
(b) Notwithstanding the above, the Trustee may and shall, if
it is unable (or unwilling due to disagreement on compensation as
provided in Section 7.5 (a)) to act as Servicer, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and
home finance institution, bank or mortgage servicing institution which
is an approved FNMA or FHLMC servicer having a net worth of not less
than $15,000,000 and meeting such other standards as are set forth in
Section 6.4 hereof for a successor to the Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or
liabilities of the Servicer hereunder (except the repurchase
obligations set forth in Sections 2.2 and 2.3 hereof, which shall
remain obligations of the Depositor); provided, however, that until
such appointment and assumption, the Trustee will continue to perform
the servicing obligations pursuant to this Agreement (and until such
time shall be entitled to receive the Servicing Fees pursuant to
Section 3.9); provided, further, that prior to the appointment of any
successor servicer, the Rating Agencies confirm that the appointment of
such successor servicer would not result in the downgrade of the Rating
assigned to any Class of Certificates. The compensation of any
successor servicer so appointed shall be equal to the Servicing Fees
specified in Section 3.9 together with such other compensation as is
provided in said Section 3.9. In the event the Trustee is required to
solicit bids as provided above, the Trustee shall solicit, by public
announcement, bids from housing and home finance institutions, banks
and mortgage servicing institutions acceptable to the Trustee and
meeting the qualifications set forth above in this Section 7.5(b) for
the purchase of the servicing functions. Such public announcement shall
specify that the successor servicer shall be entitled to the full
amount of the Servicing Fee on the aggregate unpaid principal balance
of the Loans as servicing compensation for servicing the Loans,
together with the other servicing compensation in the form of
assumption fees, late payment charges, prepayment fees or otherwise as
provided in Section 3.9. Within 45 days after any such public
announcement, the Trustee shall negotiate and effect the sale, transfer
and assignment of the servicing rights and responsibilities hereunder
(except the repurchase obligations set forth in Sections 2.2 and 2.3
hereof, which shall remain obligations of the Depositor) to the
qualified party submitting the highest qualifying bid. The Trustee
shall deduct all costs and expenses of any public announcement and of
any sale, transfer and assignment of the servicing rights and
responsibilities hereunder from any sum received by the Trustee from
the successor to the Servicer in respect of such sale, transfer and
assignment. After such deductions, the remainder of such sum shall be
paid by the Trustee to the Class R Certificateholder at the time of
such sale, transfer and assignment to the Servicer's successor.
(c) The Servicer agrees to cooperate with the Trustee and any
successor servicer in effecting the termination of the Servicer's
servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor servicer, as applicable, all
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documents and records reasonably requested by it to enable it to assume
the Servicer's functions hereunder and shall promptly also transfer to
the Trustee or such successor servicer, as applicable, all amounts
which then have been or should have been deposited in the Custodial
Account for P&I by the Servicer or which are thereafter received with
respect to the Loans. Neither the Trustee nor any other successor
servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by the failure of the Servicer to deliver,
or any delay in delivering, cash, documents or records to it.
Section 7.6 Notification to Certificateholders. Upon any termination of
the Servicer or appointment of a successor to the Servicer, in each case as
provided herein, the Trustee shall as soon as practicable give written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and each Rating Agency.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties of Trustee. The Trustee, prior to the occurrence of
an Event of Default and after the curing 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. In case an Event of Default has
occurred (which has not been cured), the Trustee, subject to the provisions of
Sections 7.1, 7.3, 7.4 and 7.5, shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs. Any permissive right of the Trustee
enumerated in this Agreement shall not be construed as a duty.
Subject to Sections 8.2(i), 8.3 and 8.4, the Trustee, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee which are specifically required to
be furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they are in the form required by this Agreement; provided,
however, that the Trustee shall not be responsible for the accuracy or content
of any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by any party hereunder. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's reasonable
satisfaction, the Trustee will provide notice thereof to the Certificateholders
and each Rating Agency.
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 or in the event the Trustee is acting as
successor servicer pursuant to Section 7.5, to the standard imposed on the
Servicer pursuant to Section 6.3 of this Agreement; provided, however, that:
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(i) Prior to the occurrence of an Event of Default
and after the curing 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 personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with this Agreement or at
the direction of Certificateholders holding Certificates which
have an aggregate Principal Balance not less than 25% of the
aggregate Principal Balance of all Certificates relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising or omitting
to exercise any trust or power conferred upon the Trustee,
under this Agreement;
(iii) The Trustee shall not be liable in its
individual capacity for any error of judgment made in good
faith by any Responsible Officer, unless it shall be proved
that the Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts;
(iv) The Trustee shall not be liable for any act or
omission of the Depositor or the Servicer (except for its own
acts or omissions as Servicer hereunder) or for any but its
own acts or omissions;
(v) The Trustee shall not be deemed to take notice or
be deemed to have knowledge of any matter, including without
limitation any default or Event of Default, unless written
notice thereof, referring to the Certificates, the Depositor,
the Trust Fund or this Agreement is received by a Responsible
Officer of the Trustee at its Corporate Trust Office; and
(vi) Subject to the other provisions of this
Agreement and without limiting the generality of this Section
8.1, the Trustee shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to
see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of
any thereof, (B) to see any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other
governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of
the Trust Fund other than from funds available in the
Certificate Account, and (D) to confirm or verify the contents
of any reports or certificates of
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the Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties as Trustee hereunder or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Servicer under
this Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement.
Section 8.2 Certain Matters Affecting Trustee. Except as otherwise
provided in Section 8.1:
(i) Before acting or refraining from acting the
Trustee may request or require an Officer's Certificate; the
Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's
Certificate, opinion of counsel, 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 or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) The right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable
for other than its negligence or willful misconduct in the
performance of such act;
(v) The Trustee shall not be required to give any
bond or surety in respect of the execution of the Trust Fund
created hereby or the powers granted hereunder; and
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(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys or custodians, and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney or
custodian appointed by the Trustee with care. Any such agents,
attorneys or custodians shall be entitled to all indemnities
and protection afforded to the Trustee. Any designee of the
Trustee shall be considered its "agent" hereunder whether
performing it as an independent contractor or otherwise.
Section 8.3 Trustee Not Required to Make Investigation. Prior to the
occurrence of an Event of Default hereunder and after the curing of all Events
of Default which may have occurred, the Trustee shall not be bound to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, Mortgage, Mortgage Note
or other paper or document, unless requested in writing so to do by Holders of
Certificates having a Percentage Interest not less than 51% of the Trust Fund;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to such proceeding. The reasonable expense of every such
examination shall be paid by the Depositor or, if paid by the Trustee, shall be
repaid by the Depositor upon demand.
Section 8.4 Trustee Not Liable for Certificates or Loans. The recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations or warranties as to the validity or
sufficiency of this Agreement or of the Certificates or of any Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates or
for the use or application of any funds paid to the Servicer in respect of the
Loans or deposited in or withdrawn from the Custodial Account for P&I by the
Servicer or for investment of any such amounts. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder. 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.
Neither the Trustee nor any of the directors, officers, employees or
agents of the Trustee shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment while
an Event of Default exists; provided, however, that this provision shall not
protect the Trustee or any such person against any liability which would
otherwise be imposed by reason
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of willful misfeasance, bad faith or negligence in the performance of duties.
The Trustee and any director, officer, employee or agent of the Trustee shall be
indemnified by the Depositor and held harmless against any loss, liability or
expense, including reasonable attorneys' fees, incurred in connection with or
related to the Trustee's performance of its powers and duties under this
Agreement (including, without limitation, performance under Section 8.1 hereof),
or any action relating to this Agreement or the Certificates, or the performance
of the Trustee's duties hereunder, other than any loss, liability or expense
incurred by any such Person by reason of willful misfeasance, bad faith or
negligence in the performance of duties. Any such losses, liabilities and
expenses resulting therefrom shall be losses, liabilities and expenses of the
Depositor. The indemnification provided hereunder shall survive termination of
this Agreement.
Section 8.5 Trustee May Own Certificates. The Trustee and any agent of
the Trustee in its individual or any other capacity may become the owner of or a
pledgee of the Certificates with the same rights it would have if it were not
Trustee or such agent, and may otherwise deal with the parties hereto.
Section 8.6 Servicer to Pay Trustee's Fees and Expenses. The Servicer
covenants and agrees to pay to the Trustee monthly (or as otherwise agreed), and
the Trustee shall be entitled to receive, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and the Servicer shall pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances, including reasonable attorneys' fees, incurred or
made by the Trustee in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The Tax
Matters Person (or Person acting as its attorney-in-fact or agent) shall
indemnify the Trustee for any liability of or assessment against the Trustee
resulting from any error in any tax or tax information returns prepared or
caused to be prepared by such Person. In the event that (i) the Servicer does
not pay to the Trustee any compensation owed to the Trustee pursuant to this
Agreement or (ii) the Trustee is not reimbursed for any expense, disbursement or
advance incurred or made by the Trustee pursuant to this Agreement, the Trustee
shall be entitled to withdraw and retain such amount from the Certificate
Account. In the event the Trustee incurs expenses or renders services in any
proceedings which result from an Event of Default under Section 7.1, subsections
(iii), (iv) or (v) of this Agreement, or from any default which, with the
passage of time, would become an Event of Default, the expenses so incurred and
compensation for services so rendered are intended to constitute expenses of
administration under the United States Bankruptcy Code or equivalent law.
Section 8.7 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing business
under the laws of any state of the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. The Trustee shall not control the Servicer nor be a
parent of or a
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subsidiary of the Servicer. If such corporation or association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.7 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.7, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.8.
Section 8.8 Resignation and Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice of resignation to the Servicer. Such notice shall also be furnished to
each Rating Agency. Upon receiving such notice of resignation, the Servicer
shall promptly appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to 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 at the expense of the
Servicer.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.7 and shall fail to resign after written
request for the Trustee's resignation by the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged 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, with or without cause, the Servicer may remove the Trustee
and appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
The Holders of Certificates having a Percentage Interest aggregating
not less than 51% of the aggregate Denomination of all Certificates may at any
time remove the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such holders or their attorneys-in-fact
duly authorized, one complete set of which instrument or instruments shall be
delivered to the Servicer, one complete set to the Trustee so removed and one
complete set to the successor trustee so appointed.
Any resignation or removal of the Trustee and appointment of successor
trustee pursuant to any of the provisions of this Section 8.8 shall become
effective only upon acceptance of appointment by the successor trustee as
provided in Section 8.9.
Section 8.9 Successor Trustee. Any successor trustee appointed as
provided in Section 8.8 shall execute, acknowledge and deliver to the Servicer
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective, and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as trustee herein. The predecessor
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trustee shall deliver or cause to be delivered to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held by the Custodian, if it shall agree to
become the agent of any successor trustee hereunder), and the Servicer and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.9 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.7.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.9, the Servicer shall mail notice of the succession of such
trustee hereunder to all holders of Certificates at their addresses as shown in
the Certificate Register and to each Rating Agency. If the Servicer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 8.10 Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided, that such Person shall be eligible under the
provisions of Section 8.7, 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 8.11 Appointment of Co-Trustee or Separate Trustee.
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 Fund or property securing the same may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee 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 Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.11, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. Each co-trustee
separate trustee hereunder shall not be required to meet the terms of
eligibility as a successor trustee under Section 8.7 hereunder and no notice to
holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.9 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular
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act or acts are to be performed (whether as Trustee hereunder or as successor to
the 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 Fund or a portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
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 VIII. 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.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trustee shall not be responsible
for any action or inaction of any such separate trustee or co-trustee. 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.
The Trustee may appoint one or more Eligible Institutions to act as its
agent or agents to perform any or all of its duties and obligations under this
Agreement. Each such agent shall be subject to all of 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.
Section 8.12 Appointment of Custodians. The Trustee may, with the
consent of the Servicer, appoint one or more Custodians, not affiliated with the
Depositor, to review, pursuant to Section 2.2 hereof, and hold all or a portion
of the Mortgage Files as agent for the Trustee provided, however, that such
appointed Custodian may be LaSalle National Bank. Any Custodian appointed shall
be an institution subject to supervision by federal or state authority, shall
have combined capital and surplus of at least $50,000,000 and shall be qualified
to do business in the jurisdiction in which it holds any Mortgage File.
Section 8.13 Authenticating Agent.
(a) The Trustee may appoint from time to time an
authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of the Trustee in authenticating
Certificates. Wherever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's
certificate of authentication,
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such reference shall be deemed to include authentication on behalf of
the Trustee by the Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by the Authenticating
Agent. Any successor Authenticating Agent must be acceptable to the
Servicer and have a principal office and place of business in New York,
New York or Chicago, Illinois, have a combined capital and surplus of
at least $50,000,000, and be authorized to do a trust business and
subject to supervision or examination by federal or state authorities.
(b) Any corporation into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which the Authenticating Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate agency business
of the Authenticating Agent, shall continue to be the Authenticating
Agent without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee
and to the Servicer. The Trustee may at any time terminate the agency
of the Authenticating Agent by giving written notice of termination to
the Authenticating Agent and to the Servicer. Upon receiving a notice
of resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.13, the Trustee promptly shall appoint a
successor Authenticating Agent, shall give written notice of such
appointment to the Servicer and shall mail notice of such appointment
to all Certificateholders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 8.13.
(d) The Authenticating Agent shall have no responsibility or
liability for any action taken by it as such at the direction of the
Trustee. Any reasonable compensation paid to the Authenticating Agent
shall be a reimbursable expense under Section 8.6.
Section 8.14 Bloomberg. As soon as practicable after the Closing Date,
the Trustee or the Certificate Administrator, if any, will arrange with
Bloomberg to have the Depositor set up on Bloomberg to provide the information
set forth on Exhibit Q (the "Data") with respect to the Loans on a monthly basis
in a format acceptable to Bloomberg and acceptable to the Underwriters. During
the term of this Agreement, the Trustee will provide updated Data to Bloomberg
on or before each Distribution Date.
Section 8.15 Reports to Securities and Exchange Commission. Unless
otherwise directed by the Depositor in writing, the Certificate Administrator or
the Trustee, as applicable, shall prepare, sign and file with the Securities and
Exchange Commission, on behalf of the Depositor, (i) no later
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than ten days after each Distribution Date, the Certificateholders' Report on
the appropriate form and in the appropriate medium authorized or prescribed
therefor under the Exchange Act, (ii) no later than March 25 of each calendar
year, an annual report meeting the requirements of the Exchange Act on the
appropriate form and in the appropriate medium authorized or prescribed therefor
under the Exchange Act. The Trustee or the Certificate Administrator, as
applicable, shall promptly forward copies of all filings made pursuant to this
Section 8.15 to the Depositor.
ARTICLE IX
TERMINATION
Section 9.1 Termination upon Purchase by the Depositor or Liquidation
of All Loans. The respective obligations and responsibilities of the Servicer
and the Trustee created hereby (other than the obligation to make payments to
Certificateholders as hereafter set forth in this Section 9.1 and obligations to
the Trustee in Sections 8.4 and 8.6) shall terminate upon the earlier of (i) the
later of the final payment or other liquidation (or any Advance with respect
thereto) of the last Loan remaining in the Trust Fund and the disposition of all
property acquired in respect of any Loan or (ii) the purchase by the Depositor
of all Loans at a price equal to the sum of (a) the principal balance of each
Loan plus accrued interest thereon at the applicable Pass-Through Rate to the
next scheduled Installment Due Date, less any Nonrecoverable Advances made with
respect to any such Loans and (b) the fair market value of all acquired property
in respect of Loans, less any Nonrecoverable Advances made with respect to any
such Loans, such fair market value to be determined by an appraiser selected by
the Trustee or (iii) the purchase by the Servicer, so long as the Servicer is
the Depositor, of all outstanding Certificates and delivery of such Certificates
to the Trustee; provided, however, that in no event 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 hereof; and
provided, further, that a "plan of liquidation" of each of REMIC I and II in
accordance with Section 860F of the Code must be adopted in conjunction with any
termination effected pursuant to subclauses (i), (ii), or (iii) of this Section
9.1.
The Depositor is hereby granted the right to purchase the Loans
pursuant to clause (ii) above, provided, however, that such right shall be
conditioned upon the Principal Balances of such Loans, at the time of any such
purchase, aggregating an amount less than 10% of the aggregate Principal Balance
of the Loans on the Cut-off Date, after deduction of payments due on or before
such date.
Notice of any termination pursuant to clause (i) or (ii) above,
specifying the Distribution Date upon which all Certificateholders may surrender
their Certificates to the Trustee or its agent for payment and cancellation,
shall be given promptly by the Trustee or its agent (upon direction by the
Servicer no less than 10 days prior to the date such notice is to be mailed) by
letter to Certificateholders and each Rating Agency mailed by first class mail
no later than the 25th day of the month preceding the month of such final
distribution specifying (i) the Distribution Date upon which final payment on
the Certificates will be made upon presentation and surrender of Certificates
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at the office or agency of the Trustee or the Certificate Registrar therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee or the Certificate Registrar therein specified.
The Trustee or its agent shall give such notice to the Certificate Registrar and
each Rating Agency at the time such notice is given to the Certificateholders.
Upon any such termination, the duties of the Certificate Registrar shall also
terminate. In the event such notice is given in connection with Depositor's
election to purchase, the Depositor shall deposit in the Certificate Account on
the related Withdrawal Date an amount equal to the above-described purchase
price and upon such deposit Certificateholders will be entitled to the amount of
such purchase price but not amounts in excess thereof, all as provided herein.
Upon presentation and surrender of the Certificates pursuant to any termination
under this Section 9.1, the Trustee or Paying Agent shall cause to be
distributed to Certificateholders an amount equal to (a) the amount otherwise
distributable on such Distribution Date, if not in connection with a purchase;
or (b) if the Depositor elected to so purchase, the purchase price calculated as
above provided. Upon any termination pursuant to clause (iii) above, or upon
certification to the Trustee by a Servicing Officer following such final
deposit, the Trustee and any Custodian shall promptly release to the Servicer
the Mortgage Files for the remaining Loans, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within three months after the time specified
in the above-mentioned written notice, the Trustee or its agent 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 three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee or its agent shall
take appropriate and reasonable steps as directed by the Servicer, 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 in
trust hereunder.
Section 9.2 Trusts Irrevocable. Except as expressly provided herein,
all trusts created hereby are irrevocable.
Section 9.3 Additional Termination Requirements.
(a) In the event the Depositor exercises its purchase option
as provided in Section 9.1, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the
Trustee and the Certificate Administrator have received an Opinion of
Counsel to the effect that the failure of the Trust Fund to comply with
the requirements of this Section 9.3 will not (i) result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II
of the Trust Fund as described in Section 860F(a)(2) of the Code, or
(ii) cause either REMIC I or REMIC II of the Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
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(A) Within 90 days prior to the final Distribution
Date set forth in the notice given by the Depositor under
Section 9.1, the Tax Matters Person shall prepare the
documents associated with and shall adopt a plan of complete
liquidation of each of REMIC I and REMIC II of the Trust Fund;
and
(B) At or after the time of adoption of such a plan
of complete liquidation and at or prior to the final
Distribution Date, the Servicer as agent of the Trustee shall
sell all of the assets of the Trust Fund to the Depositor for
cash in accordance with such plan of liquidation; provided,
however, that in the event that a calendar quarter ends after
the time of adoption of such a plan of complete liquidation
but prior to the final Distribution Date, the Servicer shall
not sell any of the assets of the Trust Fund prior to the
close of that calendar quarter.
(b) The Tax Matters Person hereby agrees to adopt such a plan
of complete liquidation and to take such other action in connection
therewith as may be reasonably requested by the Servicer.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Amendment. This Agreement may be amended from time to time
by the Depositor and the Trustee, without the consent of any of the
Certificateholders, (a) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Agreement, (b) to modify, eliminate or add to any provisions to such extent
as shall be necessary to maintain the qualification of the Trust Fund as a REMIC
at all times that any Class A or Subordinate Certificates are outstanding,
provided, that the Trustee has received an Opinion of Counsel to the effect that
such action is necessary or desirable to maintain such qualification, provided,
that such action under clauses (a) and (b) above shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or (c) such amendment is made to conform the terms of this
Agreement to the terms described in the Prospectus dated September 18, 1998,
together with the Prospectus Supplement dated April 26, 1999.
This Agreement may also be amended from time to time by the Depositor
and the Trustee with the consent of the Holders of Certificates evidencing, in
aggregate, not less than 50% of the Trust Fund for the purpose of adding any
provisions or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (a) reduce in any
manner the amount of, or delay the timing of, payments received on Loans which
are required to be distributed in respect of any Certificate without the consent
of the Holder of such Certificate; (b) adversely affect in any material respect
the interest of the Holders of the Class A Certificates in a manner other than
as described in (a) above without the consent of the Holders of Class A
Certificates aggregating not
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less than 66-2/3% of the aggregate Percentage Interest evidenced by all Class A
Certificates; (c) adversely affect in any material respect the interest of the
Holders of the Subordinate Certificates in a manner other than as described in
clause (a) above without the consent of the Holders of Subordinate Certificates
aggregating not less than 66-2/3% of the aggregate Percentage Interest evidenced
by all Subordinate Certificates; (d) adversely affect in any material respect
the interest of the Class R Certificateholder without the consent of the Holder
of the Class R Certificate; (e) change in any material respect the rights and
obligations of the Servicer or successor Servicer under this Agreement without
the prior written consent of such party; or (f) reduce the aforesaid percentage
of the Certificates the Holders of which are required to consent to any such
amendments without the consent of the Holders of all Certificates then
outstanding; provided, that for the purposes of this Agreement, the Holder of
the Class R Certificate shall have no right to vote at all times that any Class
A or Subordinate Certificates are outstanding if such amendment relates to the
modification, elimination or addition of any provision necessary to maintain the
qualification of the Trust Fund as a REMIC.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment will not cause
either REMIC I or REMIC II of the Trust Fund to fail to qualify as a REMIC at
any time that any REMIC I Regular Interests or REMIC II Certificates are
outstanding.
As soon as practicable after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of the Certificateholders
under this Section 10.1 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
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.
Section 10.2 Recordation of Agreement. This Agreement (or an abstract
hereof, if acceptable by the applicable recording office) 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
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Servicer at its expense, but only after the Depositor has delivered to the
Trustee an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
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For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.3 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of the Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Except as otherwise expressly provided herein no Certificateholder,
solely by virtue of its status as Certificateholder, shall have any right to
vote or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless all of the
Holders of Certificates evidencing, in aggregate, not less than 25% 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,
expenses and liabilities to be incurred therein or thereby, and 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; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.4 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 10.5 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified or registered mail, return receipt requested
(a) in the case of the Depositor, to ABN AMRO Mortgage Corporation, 181 West
Madison Street, Suite 3250, Chicago, Illinois 60602, Attention: Maria Fregosi -
Director - ABN AMRO Mortgage Operations, or such other address as may hereafter
be furnished to the Servicer and the Trustee in writing by the Depositor, (b) in
the case of the Servicer, to LaSalle Home Mortgage Corporation, 4242 North
Harlem Avenue, Norridge, Illinois 60634, Attention: Servicer, or such other
address as may hereafter be furnished to the Depositor and the Trustee in
writing by the Servicer, (c) in the case of the Trustee, to the Corporate Trust
Office, or such other address as may hereafter be furnished to the Depositor and
the Servicer in writing by the Trustee, in each case Attention: Corporate Trust
Department, (d) in the case of S&P, to Standard & Poor's Rating Services, 25
Broadway, 10th Floor, New York, New York 10004- 1064, Attention: Residential
Mortgage Surveillance Department, or such other address as may hereinafter be
furnished to the Depositor in writing by S&P and (e) in the case of Fitch, to
Fitch IBCA, Inc., One State Street Plaza, 32nd Floor, New York, New York 10004,
Attention: Alla Tyurina, Residential Mortgage, or such other address as may
hereinafter be furnished to the Depositor in writing by Fitch. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice mailed or transmitted within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the addressee receives such notice; provided, that any
demand, notice or communication to or upon the Depositor, the Servicer or the
Trustee shall not be effective until received.
Section 10.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
ABN AMRO MORTGAGE CORPORATION,
as Depositor
By: /s/ Stewart W. Fleming
---------------------------
Name: Stewart W. Fleming
Its: Senior Vice President
Pooling and Servicing Agreement
112
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<PAGE>
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
/s/ S. Whitten Rusk, III
------------------------
By: S. Whitten Rusk, III
-------------------------
Its: Vice President
--------------------------
Pooling and Servicing Agreement
113
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<PAGE>
LASALLE HOME MORTGAGE
CORPORATION, as Servicer
/s/ Richard Geary
------------------------
By: Richard Geary
------------------------
Its: Senior Vice President
-----------------------
Pooling and Servicing Agreement
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<PAGE>
STATE OF _________________ )
ss.:
COUNTY OF ________________ )
On the ________ day of April, 1999, before me, ____________,
personally appeared Stewart W. Fleming, a Senior Vice-President of ABN AMRO
Mortgage Corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal
Signature _______________________________________________ (SEAL)
Pooling and Servicing Agreement
<PAGE>
<PAGE>
STATE OF __________________ )
ss.:
COUNTY OF _________________ )
On the ___________ day of April, 1999, before me, ___________
________ , personally appeared _______________________ , known to me to be
____________________________ of Chase Bank of Texas, National Association,
one of the corporations 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
[NOTARIAL SEAL]
Pooling and Servicing Agreement
<PAGE>
<PAGE>
STATE OF __________________ )
ss.:
COUNTY OF _________________ )
On the ________________ day of April, 1999, before me, _____
____________________________, personally appeared _________________________,
known to me to be ________________________________ of LaSalle Home Mortgage
Corporation, one of the corporations 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
[NOTARIAL SEAL]
Pooling and Servicing Agreement
<PAGE>
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATES
Pooling and Servicing Agreement
<PAGE>
<PAGE>
Exhibit A-1
CUSIP 00088B GN 7
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-1
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.25% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3
Portion of the Class A-1 Principal Balance
as of the Cut-Off Date evidenced by this
Certificate:
Class A-1 Remittance Rate: 6.25% $54,559,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-1 Principal Balance as of the Cut-Off Date:
$54,559,000
________________
Registered Owner Certificate No. ____
Pooling and Servicing Agreement
A-1-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of __% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-1-2
<PAGE>
<PAGE>
Exhibit A-2
CUSIP 00077B GP 2
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-2
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.30% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-2 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-2 Remittance Rate: 6.30% $48,235,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-2 Principal Balance as of the Cut-Off Date:
$48,235,000
________________
Registered Owner Certificate No. ____
Pooling and Servicing Agreement
A-2-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of % per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-2-2
<PAGE>
<PAGE>
Exhibit A-3
CUSIP 00077B GQ 0
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-3
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.50% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
Series 1999-3 Portion of the Class A-3 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-3 Remittance Rate: 6.50% $4,950,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-3 Principal Balance as of the Cut-Off Date:
$4,950,000
________________
Registered Owner Certificate No._____
Pooling and Servicing Agreement
A-3-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $__________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-3-2
<PAGE>
<PAGE>
Exhibit A-4
CUSIP 00077B GR 8
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-4
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.40% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-4 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-4 Remittance Rate: 6.40% $40,500,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-4 Principal Balance as of the Cut-Off Date:
$40,500,000
________________
Registered Owner Certificate No. ____
Pooling and Servicing Agreement
A-4-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-4-2
<PAGE>
<PAGE>
Exhibit A-5
CUSIP 00077B GS 6
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-5
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
variable.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-5 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-5 Remittance Rate: Variable $38,512,121
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-5 Principal Balance as of the Cut-Off Date:
$38,512,121
________________
Registered Owner Certificate No._____
Pooling and Servicing Agreement
A-5-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $__________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-5-2
<PAGE>
<PAGE>
Exhibit A-6
CUSIP 00077B GT 4
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-6
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.75% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-6 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-6 Remittance Rate: 6.75% $5,420,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-6 Principal Balance as of the Cut-Off Date:
$5,420,000
_______________
Registered Owner Certificate No._____
Pooling and Servicing Agreement
A-6-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of % and OID allocable to the
initial short accrual period of $_________ per $1,000 of original certificate
[notional] principal balance. The prepayment assumption used by the issuer in
pricing this certificate is ___% [PSA, CPR]. The yield to maturity was based
upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-6-2
<PAGE>
<PAGE>
Exhibit A-7
CUSIP 00077B GU 1
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-7
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. Interest is not
payable with respect to this Certificate.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-7 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-7 Remittance Rate: 0.00% $464,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-7 Principal Balance as of the Cut-Off Date:
$464,000
________________
Registered Owner Certificate No.____
Pooling and Servicing Agreement
A-7-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-7-2
<PAGE>
<PAGE>
Exhibit A-8
CUSIP 00077B GV 9
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-8
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
7.00%.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-8 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-8 Remittance Rate: 7.00% $9,528,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-8 Principal Balance as of the Cut-Off Date:
$9,528,000
________________
Registered Owner Certificate No. _____
Pooling and Servicing Agreement
A-8-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of % per annum, an annualized monthly
compounded yield to maturity of ____%, an adjusted issue price as a percentage
of original certificate [notional] principal balance of ___% and OID allocable
to the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-8-2
<PAGE>
<PAGE>
Exhibit A-9
CUSIP 00077B GW 7
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-9
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
7.00%.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-9 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-9 Remittance Rate: 7.00% $3,000,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-9 Principal Balance as of the Cut-Off Date:
$3,000,000
_________________
Registered Owner Certificate No.____
Pooling and Servicing Agreement
A-9-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-9-2
<PAGE>
<PAGE>
Exhibit A-10
CUSIP 00077B GX 5
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-10
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. This issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.75% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-10 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-10 Remittance Rate: 6.75% $2,000,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-10 Principal Balance as of the Cut-Off Date:
$2,000,000
________________
Registered Owner Certificate No. __
Pooling and Servicing Agreement
A-10-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of % and OID allocable to the
initial short accrual period of $_________ per $1,000 of original certificate
[notional] principal balance. The prepayment assumption used by the issuer in
pricing this certificate is ___% [PSA, CPR]. The yield to maturity was based
upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-10-2
<PAGE>
<PAGE>
Exhibit A-11
CUSIP 00077B GY 3
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-11
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, on the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.35% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Series 1999-3 Portion of the Class A-11 Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
Class A-11 Remittance Rate: 6.35% $30,061,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class A-11 Principal Balance as of the Cut-Off Date:
$30,061,000
________________
Registered Owner Certificate No. ____
Pooling and Servicing Agreement
A-11-1
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-11-2
<PAGE>
<PAGE>
Exhibit A-12
CUSIP 00077B HA 4
MORTGAGE PASS-THROUGH CERTIFICATE
Class M
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The issue date (the "Issue Date") of this Certificate is April 28,
1999. The rate at which interest is payable as of the Issue Date with respect to
this Certificate is 6.75% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
IN THE CASE OF ANY CLASS M CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT (i) THE TRANSFEREE IS AN INSURANCE COMPANY
USING ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE
MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60) TO EFFECT SUCH PURCHASE AND (ii) SATISFIES ALL OF THE
REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE
95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR;
PROVIDED THAT IF THE CLASS M CERTIFICATE IS A BOOK-ENTRY CERTIFICATE,
SUCH TRANSFEREE SHALL BE DEEMED BY THE ACCEPTANCE OR ACQUISITION OF
SUCH CERTIFICATE TO HAVE MADE THE REPRESENTATIONS IN CLAUSES (i) AND
(ii) ABOVE.
Pooling and Servicing Agreement
A-12-1
<PAGE>
<PAGE>
The Class M Certificates will be subordinate in right of payment to and provide
credit support to certain Classes of Certificates, as described in the Pooling
Agreement.
Series 1999-3 Portion of the Class M Principal
Balance as of the Cut-Off Date
evidenced by this
Class M Remittance Rate: 6.75% Certificate:
$5,574,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class M Principal Balance as of the Cut-Off Date:
$5,574,000
________________
Registered Owner Certificate No. ___
Pooling and Servicing Agreement
A-12-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of % per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-12-3
<PAGE>
<PAGE>
Exhibit A-13
CUSIP 00077B HB 2
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-1
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.75% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
IN THE CASE OF ANY CLASS B-1 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT (i) THE TRANSFEREE IS AN INSURANCE COMPANY
USING ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE
MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60) TO EFFECT SUCH PURCHASE AND (ii) SATISFIES ALL OF THE
REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE
95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR;
PROVIDED THAT IF THE CLASS B-1 CERTIFICATE IS A BOOK-ENTRY CERTIFICATE,
SUCH TRANSFEREE SHALL BE DEEMED BY THE ACCEPTANCE OR ACQUISITION OF
SUCH CERTIFICATE TO HAVE MADE THE REPRESENTATIONS IN CLAUSES (i) AND
(ii) ABOVE.
Pooling and Servicing Agreement
A-13-1
<PAGE>
<PAGE>
The Class B-1 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 1999-3 Portion of the Class B-1 Principal
Balance as of the Cut-Off Date
evidenced by this
Class B-1 Remittance Rate: 6.75% Certificate:
$1,983,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class B-1 Principal Balance as of the Cut-Off Date:
$1,983,000
________________
Registered Owner Certificate No. __
Pooling and Servicing Agreement
A-13-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-13-3
<PAGE>
<PAGE>
Exhibit A-14
CUSIP 00077B HC 0
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-2
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is April 28, 1999. The rate at which
interest is payable as of the Issue Date with respect to this Certificate is
6.75% per annum.
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
IN THE CASE OF ANY CLASS B-2 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" AF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT (i) THE TRANSFEREE IS AN INSURANCE COMPANY
USING ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE
MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60) TO EFFECT SUCH PURCHASE AND (ii) SATISFIES ALL OF THE
REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE
95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR;
PROVIDED THAT IF THE CLASS B-2 CERTIFICATE IS A BOOK-ENTRY CERTIFICATE,
SUCH TRANSFEREE SHALL BE DEEMED BY THE ACCEPTANCE OR ACQUISITION OF
SUCH CERTIFICATE TO HAVE MADE THE REPRESENTATIONS IN CLAUSES (i) AND
(ii) ABOVE.
Pooling and Servicing Agreement
A-14-1
<PAGE>
<PAGE>
The Class B-2 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 1999-3 Portion of the Class B-2 Principal
Balance as of the Cut-Off Date
evidenced by this
Class B-2 Remittance Rate: 6.75% Certificate:
$992,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class B-2 Principal Balance as of the Cut-Off Date:
$992,000
________________
Registered Owner Certificate No. ___
Pooling and Servicing Agreement
A-14-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $___________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of % and OID allocable to the
initial short accrual period of $_________ per $1,000 of original certificate
[notional] principal balance. The prepayment assumption used by the issuer in
pricing this certificate is ___% [PSA, CPR]. The yield to maturity was based
upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-14-3
<PAGE>
<PAGE>
Exhibit A-15
CUSIP 00077B HD 8
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-3
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The issue date (the "Issue Date") of this Certificate is April 28,
1999. The rate at which interest is payable as of the Issue Date with respect to
this Certificate is 6.75% per annum.
IN THE CASE OF ANY CLASS B-3 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING
ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60) TO EFFECT SUCH PURCHASE AND SATISFIES ALL OF THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, WHICH
OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR.
The Class B-3 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 1999-3 Portion of the Class B-3 Principal
Balance as of the Cut-Off Date
evidenced by this
Class B-3 Remittance Rate: 6.75% Certificate:
$867,000
Cut-Off Date: April 1, 1999
Pooling and Servicing Agreement
A-15-1
<PAGE>
<PAGE>
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class B-3 Principal Balance as of the Cut-Off Date:
$867,000
________________
Registered Owner Certificate No. ___
Pooling and Servicing Agreement
A-15-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-15-3
<PAGE>
<PAGE>
Exhibit A-16
CUSIP 00077B HE 6
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-4
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The issue date (the "Issue Date") of this Certificate is April 28,
1999. The rate at which interest is payable as of the Issue Date with respect to
this Certificate is 6.75% per annum.
IN THE CASE OF ANY CLASS B-4 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING
ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60) TO EFFECT SUCH PURCHASE AND SATISFIES ALL OF THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, WHICH
OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR
The Class B-4 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 1999-3 Portion of the Class B-4 Principal
Balance as of the Cut-Off Date
evidenced by this
Class B-4 Remittance Rate: 6.75% Certificate:
$496,000
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Pooling and Servicing Agreement
A-16-1
<PAGE>
<PAGE>
Last Scheduled Distribution Date: May 25, 2029
Class B-4 Principal Balance as of the Cut-Off Date:
$496,000
________________
Registered Owner Certificate No. ___
Pooling and Servicing Agreement
A-16-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of ___% per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of % and OID allocable to the
initial short accrual period of $_________ per $1,000 of original certificate
[notional] principal balance. The prepayment assumption used by the issuer in
pricing this certificate is ___% [PSA, CPR]. The yield to maturity was based
upon fractional monthly compounding taking into account the initial short
accrual period.
Pooling and Servicing Agreement
A-16-3
<PAGE>
<PAGE>
Exhibit A-17
CUSIP 00077B HF 3
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-5
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The issue date (the "Issue Date") of this Certificate is April 28,
1999. The rate at which interest is payable as of the Issue Date with respect to
this Certificate is 6.75% per annum.
IN THE CASE OF ANY CLASS B-5 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, THE TRUSTEE OR
CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH
TRANSFEREE STATING THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING
ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60) TO EFFECT SUCH PURCHASE AND SATISFIES ALL OF THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, WHICH
OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR.
The Class B-5 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 1999-3 Portion of the Class B-5 Principal
Balance as of the Cut-Off Date
evidenced by this
Class B-5 Remittance Rate: 6.75% Certificate:
$619,570.93
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Pooling and Servicing Agreement
A-17-1
<PAGE>
<PAGE>
Last Scheduled Distribution Date: May 25, 2029
Class B-5 Principal Balance as of the Cut-Off Date:
$619,570.93
________________
Registered Owner Certificate No. ____
Pooling and Servicing Agreement
A-17-2
<PAGE>
<PAGE>
[OID LEGEND]
This certificate was issued on [APRIL 28, 1999] with original issued discount
("OID") of $_________ per $1,000 of original certificate [notional] principal
balance, an initial class coupon rate of % per annum, an annualized monthly
compounded yield to maturity of ___%, an adjusted issue price as a percentage of
original certificate [notional] principal balance of ___% and OID allocable to
the initial short accrual period of $_________ per $1,000 of original
certificate [notional] principal balance. The prepayment assumption used by the
issuer in pricing this certificate is ___% [PSA, CPR]. The yield to maturity was
based upon fractional monthly compounding taking into account the initial short
accrual period.
A-17-3
<PAGE>
<PAGE>
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE
CUSIP 00077B GZ 0
MORTGAGE PASS-THROUGH CERTIFICATE
Class R
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND
THE CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT EITHER (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
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFER TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL
INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R 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 A CLASS R CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
B-1
<PAGE>
<PAGE>
IN THE CASE OF ANY CLASS R CERTIFICATE PRESENTED FOR REGISTRATION IN THE NAME OF
AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY
SUBSEQUENT ENACTMENTS) (A "PLAN"), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER
PERSON WHO IS USING "PLAN ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION,
THE TRUSTEE OR CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH TRANSFEREE STATING
THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING ASSETS OF AN "INSURANCE
COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 95-60) TO EFFECT SUCH PURCHASE AND
SATISFIES ALL OF THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III
OF PTCE 95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE CERTIFICATE ADMINISTRATOR, IF ANY, OR THE DEPOSITOR.
B-2
<PAGE>
<PAGE>
Solely for U.S. federal income tax purposes, this Certificate represents
"residual interests" in "real estate mortgage investment conduits," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended.
Series 1999-3 Percentage Interest evidenced by
this Class R Certificate in the
distributions to be made with
respect to the Class R Certificate:
100%
Class R Remittance Rate: 6.75%. Additionally,
the Class R Certificates are entitled to Excess
Liquidation Proceeds and the Residual
Distribution Amount as defined in the Pooling
Agreement.
Cut-Off Date: April 1, 1999
First Distribution Date: May 25, 1999
Last Scheduled Distribution Date: May 25, 2029
Class R Principal Balance as of the Cut-Off Date:
$100
________________
Registered Owner Certificate No. ____
B-3
<PAGE>
<PAGE>
EXHIBIT C
[RESERVED]
C-1
<PAGE>
<PAGE>
EXHIBIT D
A copy of the Schedule of Loans may be
obtained by contacting the registrant.
D-1
<PAGE>
<PAGE>
EXHIBIT E
FIELDS OF MORTGAGE LOAN INFORMATION
Deal Name
Distribution Date
Loan Number
City
State
Zip Code
Property Type (SFR, CONDO, etc.)
Occupancy Status (Owner, Investor, etc.)
Loan Purpose (Purchase, Refi, etc.)
Loan Type Loan Status (Current, Foreclosure, REO, Bankruptcy)
Original Term of Loan
Amortization Term
First Payment of Loan
Maturity Date
Appraisal Value Original LTV
Original Principal Balance
Previous Month's Balance
Current Principal Balance
Prepay Date Prepay Status (Loan has been prepaid, liquidated or repurchased
by the Servicer)
Original Scheduled P&I
Current Scheduled P&I
Scheduled Interest Amount Scheduled Principal Amount
Curtailment
Note Rate
Paid to Date
Payment Date
E-1
<PAGE>
<PAGE>
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE FOR
PRIVATELY OFFERED CERTIFICATES
[Date]
Chase Bank of Texas, National Association, as Trustee
600 Travis
Houston, Texas 77002
Attn: Corporate Trust Group
[LASALLE NATIONAL BANK, AS CERTIFICATE REGISTRAR
135 SOUTH LASALLE STREET, SUITE 1625
CHICAGO, ILLINOIS 60674-4107
ATTN: ABN AMRO SERIES 1999-3]
Re: Purchase of ABN AMRO Mortgage Corporation Mortgage Pass-Through
Certificates Series 1999-3, Class [B-3] [B-4] [B-5] (the "Certificates")
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act") and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, and
(b) we have not offered or sold any certificates to, or solicited offers to buy
any Certificates from, any person, or otherwise approached or negotiated with
any person with respect thereto, or taken any other action which would result in
a violation of Section 5 of the Act.
Very truly yours,
[Name of Transferor]
By: ______________________
Authorized Officer
F-1
<PAGE>
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE'S CERTIFICATE FOR
PRIVATELY OFFERED CERTIFICATES
[Date]
Chase Bank of Texas, National Association
600 Travis
Houston, Texas 77002
Attn: Corporate Trust Group
ABN AMRO Mortgage Corporation
181 West Madison, 32nd Floor
Chicago, IL 60602
[LASALLE NATIONAL BANK, AS CERTIFICATE REGISTRAR
135 SOUTH LASALLE STREET, SUITE 1625
CHICAGO, ILLINOIS 60674-4107
ATTN: ABN AMRO SERIES 1999-3]
The undersigned (the "Purchaser") proposes to purchase [Class B-3
[Class B-4] [Class B-5] Certificates evidencing an undivided interest in ABN
AMRO Mortgage Corporation Mortgage Pass-Through Certificates, Series 1999-3
(the "Purchased Certificates") in the principal amount of $__________. In doing
so, the Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Pooling
and Servicing Agreement, dated as of April 1, 1999, between ABN AMRO Mortgage
Corporation ("AMAC"), LaSalle Home Mortgage Corporation, as servicer (the
"Servicer") and Chase Bank of Texas, National Association, as trustee (the
"Trustee"), of the ABN AMRO Mortgage Corporation Mortgage Pass-Through
Certificates, Series 1999-3.
Section 2. Representations and Warranties of the Purchaser. In
connection with the proposed transfer, the Purchaser represents and warrants to
AMAC, the Servicer, the Certificate Registrar and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which the Purchaser is organized,
is authorized to invest in the Purchased Certificates, and to enter into this
Agreement, and duly executed and delivered this Agreement;
(b) The Purchaser is acquiring the Purchased Certificates for its own
account as principal and not with a view the distribution thereof, in whole or
in part;
G-1
<PAGE>
<PAGE>
(c) The Purchaser is an "accredited investor" as such term is defined
in paragraph (a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) of Section 501 of
Regulation D under the Securities Act of 1933, as amended (the "Act"), has
knowledge of financial and business matters and is capable of evaluating the
merits and risks of an investment in the Purchased Certificates; the Purchaser
has sought such accounting, legal and tax advice as it has considered necessary
to make an informed investment decision; and the Purchaser is able to bear the
economic risk of an investment in the Purchased Certificates and can afford a
complete loss of such investment;
(d) The Purchaser is not affiliated with the Trustee;
(e) The Purchaser confirms that AMAC has made available to the
Purchaser the opportunity to ask questions of, and receive answers from AMAC
concerning the Trust, the purchase by the Purchaser of the Purchased
Certificates and all matters relating thereto that AMAC possesses or can acquire
without unreasonable effort or expense;
(f) If applicable, the Purchaser has complied, and will continue to
comply, with the guidelines established by Thrift Bulletin 12 issued December
13, 1988, by the Office of Regulatory Activities of the Federal Home Loan Bank
System; and
(g) The Purchaser will provide the Trustee and the Servicer with
affidavits substantially in the form of Exhibit A attached hereto.
Section 3. Transfer of Purchased Certificates.
(a) The Purchaser understands that the Purchased Certificates have not
been registered under the Act, or any state securities laws and that no transfer
may be made unless the Purchased Certificates are registered under the Act and
under applicable state law or unless an exemption from registration is
available. The Purchaser further understands that neither AMAC nor the Trust is
under any obligation to register the Purchased Certificates or make an exemption
available. In the event that such a transfer is to be made within two years from
the Closing Date without registration under the Act or applicable state
securities laws, (i) the Trustee or the Certificate Registrar shall require, in
order to assure compliance with such laws, that the Certificateholder's
prospective transferees each certify to AMAC, the Certificate Registrar and the
Trustee as to the factual basis for the registration or qualification exemption
relied upon, and (ii) the Trustee, the Certificate Registrar or AMAC may require
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act and state securities laws, which Opinion of Counsel shall not be an
expense of the Trustee, the Certificate Registrar or AMAC. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee and AMAC 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.
(b) No transfer of a Purchased Certificate shall be made unless the
transferee provides AMAC, the Certificate Registrar and the Trustee with (i) a
Transferee's Agreement, substantially in the form of this Agreement, and (ii) an
affidavit substantially in the form of Exhibit A hereto that
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<PAGE>
the proposed transferee (x) is not an employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of ERISA or Section
4975 of the Internal Revenue Code of 1986, as amended, or comparable provisions
of any subsequent enactments (a "Plan"), a trustee of any Plan, or any other
Person who is using the "plan assets" of any Plan to effect such acquisition or
(y) is an insurance company, the source of funds to be used by it to purchase
the Purchased Certificates is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.
(c) The Purchaser acknowledges that its Purchased Certificates bear a
legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
validly executed by its duly authorized representative as of the day and the
year first above written.
[Purchaser]
By:
----------------------------
Its:
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<PAGE>
Exhibit A to Form of Transferee Agreement (Exhibit G)
BENEFIT PLAN AFFIDAVIT
RE: ABN AMRO MORTGAGE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-3
(THE "TRUST") [CLASS B-3] [CLASS B-4] [CLASS B-5] CERTIFICATES
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, __________, declare that, to the best of
my knowledge and belief, the following representations are true, correct and
complete; and
1. That I am the __________ of __________ (the "Purchaser"), whose
taxpayer identification number is __________, and on behalf of which I have the
authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate representing
an interest in Trust.
3. That the Purchaser (i) is not an employee benefit plan or other plan
or arrangement subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or comparable
provisions of any subsequent enactments (a "Plan"), a trustee of any Plan, or
any other Person who is using the "plan assets" of any Plan to effect such
acquisition, or (ii) has provided an Officer's Certificate signed by a
Responsible Officer of the Purchaser satisfactory to ABN AMRO Mortgage
Corporation (the "Depositor"), the Certificate Registrar, and the Trustee of the
Trust stating that the Purchaser is an insurance company using assets of an
"insurance company general account" (within the meaning of Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60) to effect such purchase
and satisfies all of the requirements for exemptive relief under Sections I and
III of PTCE 95-60, which Officer's Certificate shall not be an expense of the
Depositor or the Trustee.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf, by its duly authorized officer this __ day of___ , 199_.
[Purchaser]
By:
--------------------------
Its:
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<PAGE>
Personally appeared before me _________________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he executed
the same as his/her free act and deed and as the free act and deed of the
Purchaser.
SUBSCRIBED and SWORN to before me this ___ day of ___________________,
19__.
-------------------
Notary Public
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<PAGE>
EXHIBIT H
[RESERVED]
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<PAGE>
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
[Date]
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, AS TRUSTEE
600 TRAVIS
HOUSTON, TEXAS 77002
ATTN: CORPORATE TRUST GROUP
[LASALLE NATIONAL BANK, AS CERTIFICATE REGISTRAR
135 SOUTH LASALLE STREET, SUITE 1625
CHICAGO, ILLINOIS 60674-4107
ATTN: ABN AMRO SERIES 1999-3_________________________]
RE: ABN AMRO MORTGAGE CORPORATION MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-3 CLASS R
This letter is delivered to you in connection with the sale by
________________ (the "Seller") to _________________(the "Purchaser") of
$__________________ initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 1999-3, Class R (the "Certificate"), pursuant
to Section 5.1 of the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 1999 among ABN AMRO Mortgage
Corporation, as depositor (the "Company"), LaSalle Home Mortgage Corporation, as
servicer (the "Servicer"), and Chase Bank of Texas, National Association, as
trustee (the "Trustee"). All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with the Depositor,
the Servicer, the Certificate Registrar and the Trustee that:
1. No purpose of the Seller relating to the sale of the
Certificate by the Seller to the Purchaser is or will be to enable the Seller to
impede the assessment or collection of tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee, the Servicer, the Certificate Registrar and the Depositor a transferee
affidavit and agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit J. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the Proposed Transferee
is not a Permitted Transferee.
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4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificates.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due, and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificates constitute a noneconomic residual interest, it (i) understands that
as holder of a noneconomic residual interest it may incur tax liabilities in
excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificates as they become due.
Very truly yours,
[Seller]
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
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<PAGE>
EXHIBIT J
---------
FORM OF TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Class R Certificate (the "Owner")), 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 and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of the [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code") and
will endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class R Certificate, and (ii) is acquiring
the Class R Certificate for its own account or for the account of another Owner
from which it has received an affidavit and agreement in substantially the same
form as this affidavit and agreement. (For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity, or any foreign
government or international organization, or any agency or instrumentality of
such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificate; (ii) that such tax would be on the
transferor, or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnished to such person an affidavit
that the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Class R Certificate may represent "noneconomic residual
interests" within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
if a significant purpose of the transfer was to enable the transferor to impede
the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificate if at any time during the taxable year
of the pass-through entity a disqualified
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organization is the record holder of an interest in such entity. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives.)
5. That the Owner is aware that the Trustee and the Certificate
Registrar will not register the transfer of the Class R Certificate unless the
transferee, or other transferee's agent, delivers to each of them an affidavit
and agreement, among other things, in substantially the same form as this
affidavit and agreement. The Owner expressly agrees that it will not consummate
any such transfer if it knows or believes that any of the representations
contained in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the
face of the Class R Certificate and the provisions of Section 5.1 of the Pooling
and Servicing Agreement under which the Class R Certificate was issued. The
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificate will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
8. The Owner's Taxpayer Identification Number is _______________.
9. That no purpose of the Owner relating to the purchase of the
Class R Certificate by the Owner is or will be to enable the transferor to
impede the assessment or collection of tax.
10. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
11. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
12. That the purpose of the Owner relating to the sale of the
Class R Certificate by the Owner will be to impede the assessment or collection
of tax.
13. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
14. The Owner hereby agrees to cooperate with the Depositor and to
take any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the REMIC
status of the REMIC I or the REMIC II.
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<PAGE>
15. The Owner hereby agrees that it will not take any action that
could endanger the REMIC status of the REMIC I or the REMIC II, as applicable,
or result in the imposition of tax on the REMIC I or the REMIC II unless counsel
for, or acceptable to, the Depositor has provided an opinion that such action
will not result in the loss of such REMIC status or the imposition of such tax,
as applicable.
16. The Owner as transferee of the Class R Certificate has
represented to their transferor that, if the Class R Certificate represents
noneconomic residual interests, the Owner (i) understands that as holder of a
noneconomic residual interest it may incur tax liabilities in excess of any cash
flows generated by the interest, and (ii) intends to pay taxes associated with
its holding of the Class R Certificate as they become due.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this_____________ day of _______________, 19___.
[Name of Owner]
By:
--------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
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<PAGE>
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 Owner, and Acknowledged to me that he
executed the same as his free act and deed and free act and deed of the Owner.
Subscribed and sworn before me this ___ day of _________________, 19__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the ___ day
of ____________, 19___
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<PAGE>
EXHIBIT K
FORM OF ADDITIONAL MATTER INCORPORATED
INTO THE FORM OF THE CERTIFICATES
This Certificate does not represent an obligation of or interest in ABN
AMRO Mortgage Corporation or any of its affiliates. Neither this Certificate nor
the underlying Loans are guaranteed by any agency or instrumentality of the
United States.
This certifies that the above-mentioned Registered Owner is the
registered owner of certain interests in a trust fund (the "Certificate Trust
Fund") whose assets consist of, among other things, of a pool (the "Mortgage
Pool") of conventional one- to four-family mortgage loans (the "Loans"), formed
by ABN AMRO Mortgage Corporation (the "Depositor"). The Loans were originated or
acquired by various financial institutions and subsequently acquired by the
Depositor. The Mortgage Pool was created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-Off Date stated above (the "Pooling Agreement"),
between the Depositor, LaSalle Home Mortgage Corporation, as Servicer (the
"Servicer"), and Chase Bank of Texas, National Association, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling Agreement. Nothing herein shall
be deemed inconsistent with such meanings, and in the event of any conflict
between the Pooling Agreement and the terms of this Certificate, the Pooling
Agreement shall control. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to which Pooling
Agreement the Holder of this Certificate, by virtue of the acceptance hereof,
assents and by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), to the
extent of such Certificateholder's Percentage Interest represented by this
Certificate in the portion of the Certificate Distribution Amount for such
Distribution Date then distributable on the Certificates of this Class, as
specified in Section 4.1 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee or its
Paying Agent by wire transfer or by other means of payment acceptable to each
Certificateholder of record on the immediately preceding Record Date.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee or its Paying Agent of the pendency of such
distribution and only upon presentation and surrender of this Certificate to the
Certificate Registrar.
Reference is hereby made to the further provisions of this Certificate
set forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
-----------------------------------
By:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Pooling Agreement.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------
Dated:
----------------
K-2
<PAGE>
<PAGE>
ABN AMRO MORTGAGE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing certain
interests in the Certificate Trust Fund.
The Certificates do not represent an obligation of, or an interest in,
the Depositor or any of its affiliates and are not insured or guaranteed by any
governmental agency. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Loans, all as more specifically set
forth herein and in the Pooling Agreement. To the extent described in the
Pooling Agreement, the Servicer is obligated to advance its own funds to cover
certain shortfalls with respect to payments on the Loans. In the event Servicer
funds are advanced with respect to any Loan, such advance is reimbursable to the
Servicer from the related recoveries on such Loan or from other cash deposited
in the Custodial Account for P&I to the extent that such advance is not
otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Custodial
Account for P&I may be made by the Servicer from time to time for purposes other
than distributions to Certificateholders, such purposes including reimbursement
to the Servicer of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Servicer, and the rights of the
Certificateholders under the Pooling Agreement at any time by the Depositor and
the Trustee, with the consent of the Holders of the Certificates aggregating not
less than 66-2/3% of the aggregate Percentage Interest evidenced by all of the
Certificates of the Trust Fund. For the purposes of such provision and except as
provided below, voting rights related to 100% of the Aggregate Certificate
Principal Balance of any Class will be allocated pro rata (by Certificate
Principal Balance) among the Certificates of such Class. 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 exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Pooling 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 Pooling Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar or the office maintained by
the Trustee in the City and State of New York, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee or any Authenticating Agent duly executed by,
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of Authorized Denominations evidencing
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the same Percentage Interest set forth hereinabove will be issued to the
designated transferee or transferees.
No transfer of a Certificate will be made unless such transfer is
exempt from or is made in accordance with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any applicable
state securities laws. No transfer, sale, pledge or other disposition of a
Junior Subordinate Certificate shall be made unless such transfer, sale, pledge
or other disposition is made in accordance with Section 5.1(e) or Section 5.1(f)
of the Pooling Agreement. Each Person who, at any time, acquires any ownership
interest in any Junior Subordinate Certificate shall be deemed by the acceptance
or acquisition of such ownership interest to have agreed to be bound by the
provisions of such Section 5.1(e) and Section 5.1(f), as applicable. No transfer
of a Junior Subordinate Certificate shall be deemed to be made in accordance
with such Section 5.1(e) unless such transfer is made pursuant to an effective
registration statement under the Securities Act or unless the Trustee and the
Certificate Registrar are provided with the certificates and an Opinion of
Counsel, if required, on which the Trustee and the Certificate Registrar may
conclusively rely, which establishes or establish to the Trustee's and the
Certificate Registrar's satisfaction that such transfer is exempt from the
registration requirements under the Securities Act, as follows: In the event
that a transfer is to be made in reliance upon an exemption from the Securities
Act, the Trustee and the Certificate Registrar shall require, in order to assure
compliance with the Securities Act, that the Certificateholder desiring to
effect such transfer certify to the Trustee and the Certificate Registrar in
writing, in substantially the form attached as Exhibit F to the Pooling
Agreement, the facts surrounding the transfer, with such modifications to such
Exhibit F as may be appropriate to reflect the actual facts of the proposed
transfer, and that the Certificateholder's proposed transferee certify to the
Trustee and the Certificate Registrar in writing, in substantially the form
attached as Exhibit G to the Pooling Agreement, the facts surrounding the
transfer, with such modifications to such Exhibit G as may be appropriate to
reflect the actual facts of the proposed transfer. If such certificate of the
proposed transferee does not contain substantially the substance of Exhibit G,
the Trustee and the Certificate Registrar shall require an Opinion of Counsel
satisfactory to it that such transfer may be made without registration, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Certificate Registrar, the Trust Fund or the Depositor.
Transfers of the Junior Subordinate Certificates may also be made in
accordance with Section 5.1(f) of the Pooling Agreement. To effectuate a
Certificate transfer in accordance with such Section 5.1(f), the proposed
transferee of such Certificate must provide the Trustee, the Certificate
Registrar and the Depositor with an investment letter substantially in the form
of Exhibit L attached to the Pooling Agreement, which investment letter shall
not be an expense of the Trustee, the Certificate Registrar or the Depositor,
and which investment letter states that, among other things, such transferee (i)
is a "qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (ii) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act
provided by Rule 144A. Notwithstanding the foregoing, the proposed transferee of
such Certificate shall not be required to provide the Trustee, the Certificate
Registrar or the Depositor with Annex 1 or Annex 2 to the form of such Exhibit L
if the Depositor
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so consents prior to each such transfer. Such transfers shall be deemed to have
complied with the requirements of Section 5.1(f) of the Pooling Agreement. The
Holder of a Certificate desiring to effect such transfer does hereby agree to
indemnify the Trustee, and the Certificate Registrar, the Depositor, and the
Certificate Registrar against any liability that may result if transfer is not
made in accordance with the Pooling Agreement.
The Certificates are issuable only as registered Certificates without
coupons in Authorized Denominations specified in the Pooling Agreement. As
provided in the Pooling Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of Authorized
Denominations evidencing the same aggregate interest in the portion of the
Available Distribution Amount distributable on this Class of Certificate, as
requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of
transfer or exchange, and the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Depositor, the Certificate Registrar, the Certificate
Administrator, the Servicer, the Trustee and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Certificate Registrar, the
Certificate Administrator, the Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The respective obligations and responsibilities of the Servicer and the
Trustee created under the Pooling Agreement (other than the obligation to make
payments to Certificateholders as set forth therein) shall terminate upon the
earlier of (i) the later of the final payment or other liquidation (or any
Advance with respect thereto) of the last Loan remaining in the Trust Fund and
the disposition of all property acquired in respect of any Loan or (ii) the
purchase by the Class R Certificateholder of all Loans at a price established
pursuant to the Pooling Agreement; provided, however, that in no event shall the
trust created hereby continue beyond 21 years from the death of the survivor of
certain persons identified in the Pooling Agreement.
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address, including postal zip code of
assignee. Please insert social security or other identifying number of
assignee.)
the within Mortgage Pass-Through Certificate and hereby irrevocably constitutes
and appoints ____________________________________Attorney to transfer said
Certificate on the Certificate Register, with full power of substitution in the
premises.
Dated:
---------------- ------------------------------------
Signature Guaranteed
------------------------------------
NOTICE:
The signature to this assignment must correspond with
the name as written upon the face of the within
instrument in every particular, without alteration or
enlargement or any change whatever.
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<PAGE>
EXHIBIT L
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
--------------------
--------------------
--------------------
--------------------
The undersigned seller, as registered holder (the "Seller"), intends to transfer
the Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or any disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities in
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee, the Certificate Registrar and the Servicer (as defined in
the Pooling and Servicing Agreement (the "Agreement") dated as of April 1, 1999
between ABN AMRO Mortgage Corporation, as Depositor, LaSalle Home Mortgage
Corporation, as Servicer, and Chase Bank of Texas, National Association, as
Trustee) pursuant to Section 5.1(f) of the Agreement, as follows:
(a) The Buyer understands that the Rule 144A Securities
have not been registered under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of investment in the Rule 144A Securities.
(c) The Buyer has received and reviewed the Private
Placement Memorandum dated as of April 28, 1999 relating to the Rule 144A
Securities and has been furnished with all
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<PAGE>
information regarding the Rule 144A Securities that it has requested from the
Seller, the Trustee, the Depositor or the Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will it
authorize any person to act, in such manner with respect to the Rule 144A
Securities.
(e) The Buyer is a "qualified institutional buyer" as that
term is defined in Rule 144A under the 1933 Act and has (1) completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
or (2) obtained the waiver of the Depositor with respect to Annex 1 and Annex 2
pursuant to Section 5.1(f) of the Agreement. The Buyer is aware that the sale to
it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to 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 on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
(f) The Buyer is not affiliated with (i) the Trustee or
(ii) any Rating Agency that rated the Rule 144A Securities.
(g) If applicable, the Buyer has complied, and will
continue to comply, with the guidelines established by Thrift Bulletin 12 issued
December 13, 1988, by the Office of Regulatory Activities of the Federal Home
Loan Bank System.
[Required only in the case of a transfer of a Class B-1, Class B-2,
Class B-3, Class B-4, or Class B-5 Certificate] [3. The Buyer warrants and
represents to, and covenants with, the Seller, the Servicer, the Certificate
Registrar and the Depositor that (1) the Buyer is not an employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), subject to the prohibited transaction
provisions of ERISA ("Plan"), or a plan (within the meaning of Section
4975(e)(1) of the Internal Revenue Code of 1986 ("Code")) subject to Section
4975 of the Code (also a "Plan"), and the Buyer is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with "plan assets" of any Plan, or (2) the
Buyer has provided the Seller, the Servicer, the Certificate Registrar and the
Depositor with an Officer's Certificate signed by a Responsible
L-2
<PAGE>
<PAGE>
Officer of the Buyer stating that the Buyer is an insurance company using assets
of an "insurance company general account" (within the meaning of Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 95-60) to effect such
purchase and satisfies all of the requirements for exemptive relief under
Sections I and III of PTCE 95-60, which Officer's Certificate shall not be an
expense of the Servicer or the Depositor.]
3. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
- ----------------------------- -----------------------------
Print Name of Seller Print Name of Seller
By: By:
------------------------- --------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
------ -----
No.: No.:
---------------------- -------------------------
Date: Date:
---------------------- -------------------------
L-3
<PAGE>
<PAGE>
Annex 1 to Exhibit l
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice-President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $_____________(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
__________ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
__________ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the State or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
__________ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements.
- --------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
L-1-1
<PAGE>
<PAGE>
__________ Broker-Dealer. The Buyer is a dealer registered pursuant
to Section 15 of the. Securities Exchange Act of 1934.
__________ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State or territory or the District of Columbia.
__________ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
__________ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and is
subject to the fiduciary responsibility provisions of
ERISA.
__________ Investment Adviser. The Buyer is an investment adviser
registered under the Investment Advisers Act of 1940.
__________ SBIC. The Buyer is 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.
__________ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940.
__________ Trust Fund. The Buyer is a trust fund whose trustee is a
bank or trust company and whose participants are
exclusively (a) plans established and maintained by a
State, its political subdivision, or any agency or
instrumentality of the State or its political subdivision,
for the benefit of its employees, or (b) employee benefit
plans within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, but is not a trust
fund that includes as participants individual retirement
accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
L-1-2
<PAGE>
<PAGE>
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated with
the Buyer in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included
if the Buyer is a majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the Securities Exchange
Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
------------ ---------- Will the Buyer be
Yes No purchasing the Rule 144A
Securities only for the
Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule 144A.
In addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
---------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
Title:
Date:
----------------------------------
L-1-3
<PAGE>
<PAGE>
Annex 2 to Exhibit l
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice-President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is a part of a Family of
Investment Companies (as defined below), is such an officer the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser in a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made
L-2-1
<PAGE>
<PAGE>
herein because one or more sales to the Buyer will be reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-----------------------------------------
Print Name of Buyer
By:
--------------------------------------
Name:
Title:
Date:
------------------------------------
IF AN ADVISER
-----------------------------------------
Print Name of Buyer
By:
--------------------------------------
Name:
Title:
Date:
------------------------------------
(SEAL)
L-2-2
<PAGE>
<PAGE>
EXHIBIT M
---------
[RESERVED]
M-1
<PAGE>
<PAGE>
EXHIBIT N
---------
[RESERVED]
N-2
<PAGE>
<PAGE>
EXHIBIT O
PLANNED PRINCIPAL BALANCES
<TABLE>
<CAPTION>
DISTRIBUTION DATES CLASS A-1 CLASS A-2 CLASS A-3
- ------------------ ----------- ----------- ----------
<S> <C> <C> <C>
Initial Balance................................ $54,559,000.00 $48,235,000.00 $4,950,000.00
May 25, 1999................................... 54,559,000.00 48,235,000.00 4,950,000.00
June 25, 1999.................................. 54,559,000.00 48,235,000.00 4,950,000.00
July 25, 1999.................................. 54,559,000.00 48,235,000.00 4,950,000.00
August 25, 1999................................ 54,559,000.00 48,235,000.00 4,950,000.00
September 25, 1999............................. 54,559,000.00 48,235,000.00 4,950,000.00
October 25, 1999............................... 54,559,000.00 48,235,000.00 4,950,000.00
November 25, 1999.............................. 54,559,000.00 48,235,000.00 4,950,000.00
December 25, 1999.............................. 54,559,000.00 48,235,000.00 4,950,000.00
January 25, 2000............................... 54,559,000.00 48,235,000.00 4,950,000.00
February 25, 2000.............................. 54,559,000.00 48,235,000.00 4,950,000.00
March 25, 2000................................. 54,559,000.00 48,235,000.00 4,950,000.00
April 25, 2000................................. 53,682,481.83 48,235,000.00 4,950,000.00
May 25, 2000................................... 52,757,591.90 48,235,000.00 4,950,000.00
June 25, 2000.................................. 51,784,796.53 48,235,000.00 4,950,000.00
July 25, 2000.................................. 50,764,593.04 48,235,000.00 4,950,000.00
August 25, 2000................................ 49,697,509.36 48,235,000.00 4,950,000.00
September 25, 2000............................. 48,584,103.60 48,235,000.00 4,950,000.00
October 25, 2000............................... 47,424,963.62 48,235,000.00 4,950,000.00
November 25, 2000.............................. 46,220,706.47 48,235,000.00 4,950,000.00
December 25, 2000.............................. 44,971,977.95 48,235,000.00 4,950,000.00
January 25, 2001............................... 43,679,502.72 48,235,000.00 4,950,000.00
February 25, 2001.............................. 42,343,981.27 48,235,000.00 4,950,000.00
March 25, 2001................................. 40,966,288.54 48,235,000.00 4,950,000.00
April 25, 2001................................. 39,547,337.79 48,235,000.00 4,950,000.00
May 25, 2001................................... 38,088,148.57 48,235,000.00 4,950,000.00
June 25, 2001.................................. 36,589,994.38 48,235,000.00 4,950,000.00
July 25, 2001.................................. 35,054,597.87 48,235,000.00 4,950,000.00
August 25, 2001................................ 33,486,058.92 48,235,000.00 4,950,000.00
September 25, 2001............................. 31,899,889.10 48,235,000.00 4,950,000.00
October 25, 2001............................... 30,323,326.56 48,235,000.00 4,950,000.00
November 25, 2001.............................. 28,757,245.39 48,235,000.00 4,950,000.00
December 25, 2001.............................. 27,201,578.34 48,235,000.00 4,950,000.00
January 25, 2002............................... 25,656,258.59 48,235,000.00 4,950,000.00
February 25, 2002.............................. 24,121,219.78 48,235,000.00 4,950,000.00
March 25, 2002................................. 22,596,395.96 48,235,000.00 4,950,000.00
April 25, 2002................................. 21,081,721.63 48,235,000.00 4,950,000.00
May 25, 2002................................... 19,577,131.70 48,235,000.00 4,950,000.00
June 25, 2002.................................. 18,082,561.52 48,235,000.00 4,950,000.00
July 25, 2002.................................. 16,597,946.87 48,235,000.00 4,950,000.00
August 25, 2002................................ 15,123,223.92 48,235,000.00 4,950,000.00
September 25, 2002............................. 13,658.329.28 48,235,000.00 4,950,000.00
October 25, 2002............................... 12,203,199.99 48,235,000.00 4,950,000.00
November 25, 2002.............................. 10,757,773.47 48,235,000.00 4,950,000.00
</TABLE>
O-1
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
DISTRIBUTION DATES CLASS A-1 CLASS A-2 CLASS A-3
- ------------------ ----------- ----------- ----------
<S> <C> <C> <C>
December 25, 2002.............................. $ 9,321,987.57 $48,235,000.00 $ 4,950,000.00
January 25, 2003............................... 7,895,780.54 48,235,000.00 4,950,000.00
February 25, 2003.............................. 6,479,091.04 48,235,000.00 4,950,000.00
March 25, 2003................................. 5,071,858.12 48,235,000.00 4,950,000.00
April 25, 2003................................. 3,674,021.25 48,235,000.00 4,950,000.00
May 25, 2003................................... 2,285,520.28 48,235,000.00 4,950,000.00
June 25, 2003.................................. 906,295.45 48,235,000.00 4,950,000.00
July 25, 2003.................................. 0.00 47,771,287.42 4,950,000.00
August 25, 2003................................ 0.00 46,410,437.21 4,950,000.00
September 25, 2003............................. 0.00 45,058,686.23 4,950,000.00
October 25, 2003............................... 0.00 43,715,976.29 4,950,000.00
November 25, 2003.............................. 0.00 42,382,249.58 4,950,000.00
December 25, 2003.............................. 0.00 41,057,448.64 4,950,000.00
January 25, 2004............................... 0.00 39,741,516.43 4,950,000.00
February 25, 2004.............................. 0.00 38,434,396.26 4,950,000.00
March 25, 2004................................. 0.00 37,136,031.82 4,950,000.00
April 25, 2004................................. 0.00 35,846,367.15 4,950,000.00
May 25, 2004................................... 0.00 34,584,403.44 4,950,000.00
June 25, 2004.................................. 0.00 33,330,943.81 4,950,000.00
July 25, 2004.................................. 0.00 32,085,933.20 4,950,000.00
August 25, 2004................................ 0.00 30,849,316.91 4,950,000.00
September 25, 2004............................. 0.00 29,621,040.61 4,950,000.00
October 25, 2004............................... 0.00 28,401,050.30 4,950,000.00
November 25, 2004.............................. 0.00 27,189.292.35 4,950,000.00
December 25, 2004.............................. 0.00 25,985,713.47 4,950,000.00
January 25, 2005............................... 0.00 24,790,260.72 4,950,000.00
February 25, 2005.............................. 0.00 23,602,881.51 4,950,000.00
March 25, 2005................................. 0.00 22,423,523.58 4,950,000.00
April 25, 2005................................. 0.00 21,258,052.28 4,950,000.00
May 25, 2005................................... 0.00 20,155,208.54 4,950,000.00
June 25, 2005.................................. 0.00 19,087,828.17 4,950,000.00
July 25, 2005.................................. 0.00 18,054,819.14 4,950,000.00
August 25, 2005................................ 0.00 17,055,122.35 4,950,000.00
September 25, 2005............................. 0.00 16,087,710.71 4,950,000.00
October 25, 2005............................... 0.00 15,151,588.13 4,950,000.00
November 25, 2005.............................. 0.00 14,245,788.66 4,950,000.00
December 25, 2005.............................. 0.00 13,369,375.50 4,950,000.00
January 25, 2006............................... 0.00 12,521,440.19 4,950,000.00
February 25, 2006.............................. 0.00 11,701,101.77 4,950,000.00
March 25, 2006................................. 0.00 10,907,505.91 4,950,000.00
April 25, 2006................................. 0.00 10,139,824.13 4,950,000.00
May 25, 2006................................... 0.00 9,440,670.80 4,950,000.00
June 25, 2006.................................. 0.00 8,764,449.77 4,950,000.00
July 25, 2006.................................. 0.00 8,110,438.41 4,950,000.00
August 25, 2006................................ 0.00 7,477,936.29 4,950,000.00
September 25, 2006............................. 0.00 6,866,264.56 4,950,000.00
October 25, 2006............................... 0.00 6,274,765.24 4,950,000.00
November 25, 2006.............................. 0.00 5,702,800.62 4,950,000.00
</TABLE>
O-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
DISTRIBUTION DATES CLASS A-1 CLASS A-2 CLASS A-3
- ------------------ ----------- ----------- ----------
<S> <C> <C> <C>
December 25, 2006.............................. $ 0.00 $ 5,149,752.64 $ 4,950,000.00
January 25, 2007............................... 0.00 4,615,022.29 4,950,000.00
February 25, 2007.............................. 0.00 4,098,029.01 4,950,000.00
March 25, 2007................................. 0.00 3,598,210.20 4,950,000.00
April 25, 2007................................. 0.00 3,115,020.59 4,950,000.00
May 25, 2007 .................................. 0.00 2,682,379.64 4,950,000.00
June 25, 2007 ................................. 0.00 2,263,804.89 4,950,000.00
July 25, 2007 ................................. 0.00 1,858,849.63 4,950,000.00
August 25, 2007 ............................... 0.00 1,467,081.12 4,950,000.00
September 25, 2007 ............................ 0.00 1,088,080.10 4,950,000.00
October 25, 2007 .............................. 0.00 721,440.39 4,950,000.00
November 25, 2007 ............................. 0.00 366,768.53 4,950,000.00
December 25, 2007 ............................. 0.00 23,683.32 4,950,000.00
January 25, 2008 .............................. 0.00 0.00 4,641,815.49
February 25, 2008 ............................. 0.00 0.00 4,320,807.32
March 25, 2008 ................................ 0.00 0.00 4,010,312.32
April 25, 2008 ................................ 0.00 0.00 3,709,994.76
May 25, 2008 .................................. 0.00 0.00 3,444,923.79
June 25, 2008 ................................. 0.00 0.00 3,187,963.16
July 25, 2008 ................................. 0.00 0.00 2,938,867.15
August 25, 2008 ............................... 0.00 0.00 2,697,397.42
September 25, 2008 ............................ 0.00 0.00 2,463,322.79
October 25, 2008 .............................. 0.00 0.00 2,236,419.07
November 25, 2008 ............................. 0.00 0.00 2,016,468.77
December 25, 2008 ............................. 0.00 0.00 1,803,260.98
January 25, 2009 .............................. 0.00 0.00 1,596,591.12
February 25, 2009 ............................. 0.00 0.00 1,396,260.78
March 25, 2009 ................................ 0.00 0.00 1,202,077.51
April 25, 2009 ................................ 0.00 0.00 1,013,854.69
May 25, 2009 .................................. 0.00 0.00 831,411.28
June 25, 2009 ................................. 0.00 0.00 654,571.72
July 25, 2009 ................................. 0.00 0.00 483,165.73
August 25, 2009 ............................... 0.00 0.00 317,028.17
September 25, 2009 ............................ 0.00 0.00 155,998.87
October 25, 2009 and thereafter ............... 0.00 0.00 0.00
</TABLE>
O-3
<PAGE>
<PAGE>
EXHIBIT P
TARGETED PRINCIPAL BALANCES
<TABLE>
<CAPTION>
CLASS A-4 CLASS A-11 CLASS A-4 CLASS A-11
DISTRIBUTION DATES SCHEDULE #1 SCHEDULE #1 SCHEDULE #2 SCHEDULE #2
- ------------------ ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Initial Balance ............................... $40,500,000.00 $30,061,000.00 $40,500,000.00 $30,061,000.00
May 25, 1999 .................................. 40,125,728.18 29,783,197.89 40,125,728.18 29,783,197.89
June 25, 1999 ................................. 39,697,899.68 29,465,643.51 39,697,899.68 29,465,643.51
July 25, 1999 ................................. 39,216,671.80 29,108,453.61 39,216,671.80 29,108,453.61
August 25, 1999 ............................... 38,682,205.37 28,711,747.54 38,682,205.37 28,711,747.54
September 25, 1999 ............................ 38,094,721.74 28,275,689.64 38,094,721.74 28,275,689.64
October 25, 1999 .............................. 37,454,502.89 27,800,489.17 37,454,502.89 27,800,489.17
November 25, 1999 ............................. 36,761,891.31 27,286,400.36 36,761,891.31 27,286,400.36
December 25, 1999 ............................. 36,017,289.80 26,733,722.19 36,017,289.80 26,733,722.19
January 25, 2000 .............................. 35,221,161.18 26,142,798.18 35,221,161.18 26,142,798.18
February 25, 2000 ............................. 34,374,027.85 25,514,016.08 34,374,027.85 25,514,016.08
March 25, 2000 ................................ 33,476,471.25 24,847,807.47 33,476,471.25 24,847,807.47
April 25, 2000 ................................ 33,032,227.62 24,518,069.00 33,032,227.62 24,518,069.00
May 25, 2000 .................................. 32,566,661.96 24,172,504.32 32,566,661.96 24,172,504.32
June 25, 2000 ................................. 32,080,260.75 23,811,474.53 32,080,260.75 23,811,474.53
July 25, 2000 ................................. 31,573,548.39 23,435,368.85 31,573,548.39 23,435,368.85
August 25, 2000 ............................... 31,047,086.28 23,044,603.97 31,047,086.28 23,044,603.97
September 25, 2000 ............................ 30,501,471.86 22,639,623.35 30,501,471.86 22,639,623.35
October 25, 2000 .............................. 29,937,337.51 22,220,896.37 29,741,674.43 22,075,666.05
November 25, 2000 ............................. 29,355,349.45 21,788,917.52 28,148,136.51 20,892,867.45
December 25, 2000 ............................. 28,756,206.40 21,344,205.45 26,512,220.19 19,678,613.61
January 25, 2001 .............................. 28,140,661.05 20,887,318.81 24,838,331.73 18,436,175.07
February 25, 2001 ............................. 27,509,471.93 20,418,820.64 23,130,929.33 17,168,860.90
March 25, 2001 ................................ 26,863,491.46 19,939,343.62 21,394,812.44 15,880,233.50
April 25, 2001 ................................ 26,203,601.67 19,449,542.47 19,634,880.49 14,573,929.44
May 25, 2001 .................................. 25,530,742.75 18,950,115.01 17,856,214.36 13,253,720.00
June 25, 2001 ................................. 24,845,975.22 18,441,848.42 16,064,264.66 11,923,650.86
July 25, 2001 ................................. 24,150,560.48 17,925,678.98 14,265,088.44 10,588,217.87
August 25, 2001 ............................... 23,446,798.46 17,403,313.79 12,468,088.57 9,254,400.26
September 25, 2001 ............................ 22,741,948.44 16,880,141.04 10,698,839.01 7,941,180.23
October 25, 2001 .............................. 22,048,187.31 16,365,198.98 8,998,084.17 6,678,800.21
November 25, 2001 ............................. 21,365,750.19 15,858,662.13 7,365,010.77 5,466,656.52
December 25, 2001 ............................. 20,694,448.64 15,360,390.63 5,797,393.90 4,303,097.73
January 25, 2002 .............................. 20,034,096.65 14,870,246.40 4,293,076.60 3,186,522.86
February 25, 2002 ............................. 19,384,510.58 14,388,093.15 2,849,967.81 2,115,379.81
March 25, 2002 ................................ 18,745,509.18 13,913,796.33 1,466,040.40 1,088,163.96
April 25, 2002 ................................ 18,116,913.49 13,447,223.12 139,329.25 103,416.71
May 25, 2002 .................................. 17,498,546.89 12,988,242.42 0.00 0.00
June 25, 2002 ................................. 16,890,235.01 12,536,724.80 0.00 0.00
</TABLE>
P-1
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
CLASS A-4 CLASS A-11 CLASS A-4 CLASS A-11
DISTRIBUTION DATES SCHEDULE #1 SCHEDULE #1 SCHEDULE #2 SCHEDULE #2
- ------------------ ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
July 25, 2002 ................................. $16,291,805.70 $12,092,542.50 $ 0.00 $ 0.00
August 25, 2002 ............................... 15,703,089.06 11,655,569.39 0.00 0.00
September 25, 2002 ............................ 15,123,917.35 11,225,680.98 0.00 0.00
October 25, 2002 .............................. 14,554,124.99 10,802,754.36 0.00 0.00
November 25, 2002 ............................. 13,993,548.53 10,386,668.21 0.00 0.00
December 25, 2002 ............................. 13,442,026.61 9,977,302.76 0.00 0.00
January 25, 2003 .............................. 12,899,399.95 9,574,539.80 0.00 0.00
February 25, 2003 ............................. 12,365,511.32 9,178,262.61 0.00 0.00
March 25, 2003 ................................ 11,840,205.49 8,788,355.98 0.00 0.00
April 25, 2003 ................................ 11,323,329.24 8,404,706.18 0.00 0.00
May 25, 2003 .................................. 10,814,731.31 8,027,200.94 0.00 0.00
June 25, 2003 ................................. 10,314,262.39 7,655,729.42 0.00 0.00
July 25, 2003 ................................. 9,821,775.07 7,290,182.23 0.00 0.00
August 25, 2003 ............................... 9,337,123.84 6,930,451.35 0.00 0.00
September 25, 2003 ............................ 8,860,165.06 6,576,430.17 0.00 0.00
October 25, 2003 .............................. 8,390,756.92 6,228,013.43 0.00 0.00
November 25, 2003 ............................. 7,928,759.45 5,885,097.23 0.00 0.00
December 25, 2003 ............................. 7,474,034.45 5,547,579.00 0.00 0.00
January 25, 2004 .............................. 7,026,445.50 5,215,357.48 0.00 0.00
February 25, 2004 ............................. 6,585,857.93 4,888,332.72 0.00 0.00
March 25, 2004 ................................ 6,152,138.79 4,566,406.03 0.00 0.00
April 25, 2004 ................................ 5,725,156.85 4,249,480.00 0.00 0.00
May 25, 2004 .................................. 5,314,135.00 3,944,400.30 0.00 0.00
June 25, 2004 ................................. 4,909,517.53 3,644,074.23 0.00 0.00
July 25, 2004 ................................. 4,511,178.39 3,348,408.24 0.00 0.00
August 25, 2004 ............................... 4,118,993.13 3,057,309.94 0.00 0.00
September 25, 2004 ............................ 3,732,838.90 2,770,688.15 0.00 0.00
October 25, 2004 .............................. 3,352,594.42 2,488,452.86 0.00 0.00
November 25, 2004 ............................. 2,978,139.96 2,210,515.19 0.00 0.00
December 25, 2004 ............................. 2,609,357.31 1,936,787.41 0.00 0.00
January 25, 2005 .............................. 2,246,129.79 1,667,182.91 0.00 0.00
February 25, 2005 ............................. 1,888,342.20 1,401,616.17 0.00 0.00
March 25, 2005 ................................ 1,535,880.79 1,140,002.78 0.00 0.00
April 25, 2005 ................................ 1,185,236.97 879,738.48 0.00 0.00
May 25, 2005 .................................. 814,670.14 604,686.40 0.00 0.00
June 25, 2005 ................................. 433,186.14 321,531.07 0.00 0.00
July 25, 2005 ................................. 41,274.91 30,636.18 0.00 0.00
August 25, 2005 and thereafter ................ 0.00 0.00 0.00 0.00
</TABLE>
P-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
CLASS A-5-3 CLASS A-5-3
DISTRIBUTION DATES SCHEDULE #1 SCHEDULE #2
- ------------------ ----------- -----------
<S> <C> <C>
Initial Balance ............................... $34,354,000.00 $34,354,000.00
May 25, 1999 .................................. 34,520,738.96 34,520,738.96
June 25, 1999 ................................. 34,678,370.17 34,678,370.17
July 25, 1999 ................................. 34,826,914.79 34,826,914.79
August 25, 1999 ............................... 34,966,418.50 34,966,418.50
September 25, 1999 ............................ 35,096,951.69 35,096,951.69
October 25, 1999 .............................. 35,218,609.49 35,218,609.49
November 25, 1999 ............................. 35,331,511.81 35,331,511.81
December 25, 1999 ............................. 35,435,803.28 35,435,803.28
January 25, 2000 .............................. 35,531,653.09 35,531,653.09
February 25, 2000 ............................. 35,619,254.75 35,619,254.75
March 25, 2000 ................................ 35,698,825.85 35,698,825.85
April 25, 2000 ................................ 35,770,607.67 34,867,186.94
May 25, 2000 .................................. 35,834,864.70 32,156,995.52
June 25, 2000 ................................. 35,891,884.18 29,300,847.81
July 25, 2000 ................................. 35,941,975.47 26,311,349.49
August 25, 2000 ............................... 35,985,469.38 23,201,945.26
September 25, 2000 ............................ 36,022,717.47 19,986,850.81
October 25, 2000 .............................. 36,054,091.20 17,021,871.18
November 25, 2000 ............................. 36,079,981.08 15,403,115.34
December 25, 2000 ............................. 36,100,795.74 13,769,105.78
January 25, 2001 .............................. 36,116,970.65 12,130,163.89
February 25, 2001 ............................. 36,128,946.85 10,496,634.19
March 25, 2001 ................................ 36,137,208.36 8,879,229.12
April 25, 2001 ................................ 36,142,253.55 7,288,623.30
May 25, 2001 .................................. 36,144,606.71 5,735,506.11
June 25, 2001 ................................. 36,144,843.69 4,230,754.40
July 25, 2001 ................................. 36,143,624.62 2,785,633.55
August 25, 2001 ............................... 36,142,047.61 1,415,153.09
September 25, 2001 ............................ 36,143,304.02 153,821.34
October 25, 2001 .............................. 36,152,614.74 0.00
November 25, 2001 ............................. 36,170,027.84 0.00
December 25, 2001 ............................. 36,195,409.57 0.00
January 25, 2002 .............................. 36,228,628.70 0.00
February 25, 2002 ............................. 36,269,556.48 0.00
March 25, 2002 ................................ 36,318,066.64 0.00
April 25, 2002 ................................ 36,374,035.30 0.00
May 25, 2002 .................................. 36,437,340.96 0.00
June 25, 2002 ................................. 36,507,864.48 0.00
July 25, 2002 ................................. 36,585,488.99 0.00
August 25, 2002 ............................... 36,670,099.90 0.00
September 25, 2002 ............................ 36,761,584.85 0.00
October 25, 2002 .............................. 36,859,833.65 0.00
November 25, 2002 ............................. 36,964,738.29 0.00
December 25, 2002 ............................. 37,076,192.88 0.00
January 25, 2003 .............................. 37,194,093.60 0.00
February 25, 2003 ............................. 37,318,338.69 0.00
March 25, 2003 ................................ 37,488,828.44 0.00
April 25, 2003 ................................ 37,585,465.09 0.00
May 25, 2003 .................................. 37,728,152.86 0.00
June 25, 2003 ................................. 37,876,797.89 0.00
July 25, 2003 ................................. 38,031,308.20 0.00
August 25, 2003................................ 38,191,593.71 0.00
September 25, 2003............................. 38,357,566.15 0.00
October 25, 2003............................... 38,529,139.05 0.00
November 25, 2003.............................. 38,706,227.74 0.00
December 25, 2003.............................. 38,888,749.26 0.00
</TABLE>
P-3
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
CLASS A-5-3 CLASS A-5-3
DISTRIBUTION DATES SCHEDULE #1 SCHEDULE #2
- ------------------ ----------- -----------
<S> <C> <C>
January 25, 2004............................... $39,076,622.42 $ 0.00
February 25, 2004.............................. 39,269,767.68 0.00
March 25, 2004................................. 39,468,107.19 0.00
April 25, 2004................................. 39,671,564.72 0.00
May 25, 2004................................... 39,884,300.96 0.00
June 25, 2004.................................. 40,101,964.61 0.00
July 25, 2004.................................. 40,324,484.45 0.00
August 25, 2004................................ 40,551,309.67 0.00
September 25, 2004............................. 40,779,410.79 0.00
October 25, 2004............................... 41,008,794.98 0.00
November 25, 2004 ............................. 41,239,469.45 0.00
December 25, 2004.............................. 41,471,441.46 0.00
January 25, 2005............................... 41,704,718.32 0.00
February 25, 2005.............................. 41,939,307.36 0.00
March 25, 2005 ................................ 42,175,215.97 0.00
April 25, 2005 ................................ 42,412,451.56 0.00
May 25, 2005 .................................. 42,651,021.60 0.00
June 25, 2005.................................. 42,890,933.59 0.00
July 25, 2005.................................. 43,132,195.10 0.00
August 25, 2005................................ 43,006,093.20 0.00
September 25, 2005............................. 42,574,397.54 0.00
October 25, 2005............................... 42,130,851.34 0.00
November 25, 2005 ............................. 41,676,143.68 0.00
December 25, 2005.............................. 41,210,938.22 0.00
January 25, 2006............................... 40,735,874.00 0.00
February 25, 2006.............................. 40,251,566.25 0.00
March 25, 2006 ................................ 39,758,607.19 0.00
April 25, 2006 ................................ 39,257,566.71 0.00
May 25, 2006 .................................. 38,728,379.03 0.00
June 25, 2006.................................. 38,193,210.70 0.00
July 25, 2006.................................. 37,652,540.12 0.00
August 25, 2006................................ 37,106,826.85 0.00
September 25, 2006............................. 36,556,512.15 0.00
October 25, 2006............................... 36,002,019.68 0.00
November 25, 2006 ............................. 35,443,756.01 0.00
December 25, 2006.............................. 34,882,111.26 0.00
January 25, 2007............................... 34,317,459.60 0.00
February 25, 2007.............................. 33,750,159.80 0.00
March 25, 2007 ................................ 33,180,555.75 0.00
April 25, 2007 ................................ 32,608,976.97 0.00
May 25, 2007 .................................. 32,021,598.48 0.00
June 25, 2007.................................. 31,433,937.49 0.00
July 25, 2007.................................. 30,846,240.42 0.00
August 25, 2007................................ 30,258,742.48 0.00
September 25, 2007............................. 29,671,668.10 0.00
October 25, 2007............................... 29,085,231.29 0.00
November 25, 2007 ............................. 28,499,636.01 0.00
December 25, 2007.............................. 27,915,076.50 0.00
January 25, 2008............................... 27,331,737.67 0.00
February 25, 2008.............................. 26,749,795.39 0.00
March 25, 2008 ................................ 26,169,416.84 0.00
April 25, 2008 ................................ 25,590,760.78 0.00
May 25, 2008 .................................. 25,006,057.42 0.00
June 25, 2008.................................. 24,424,312.32 0.00
July 25, 2008.................................. 23,845,610.91 0.00
August 25, 2008................................ 23,270,033.38 0.00
September 25, 2008............................. 22,697,654.87 0.00
</TABLE>
P-4
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
CLASS A-5-3 CLASS A-5-3
DISTRIBUTION DATES SCHEDULE #1 SCHEDULE #2
- ------------------ ----------- -----------
<S> <C> <C>
October 25, 2008............................... $22,128,545.71 $ 0.00
November 25, 2008 ............................. 21,562,771.53 0.00
December 25, 2008.............................. 21,000,393.48 0.00
January 25, 2009............................... 20,441,468.35 0.00
February 25, 2009.............................. 19,886,048.81 0.00
March 25, 2009 ................................ 19,334,183.49 0.00
April 25, 2009 ................................ 18,785,917.17 0.00
May 25, 2009 .................................. 18,241,290.91 0.00
June 25, 2009.................................. 17,700,342.23 0.00
July 25, 2009.................................. 17,163,105.18 0.00
August 25, 2009................................ 16,629,610.54 0.00
September 25, 2009............................. 16,099,885.91 0.00
October 25, 2009............................... 15,573,878.35 0.00
November 25, 2009 ............................. 14,900,490.40 0.00
December 25, 2009.............................. 14,235,593.65 0.00
January 25, 2010............................... 13,579,062.51 0.00
February 25, 2010.............................. 12,930,773.12 0.00
March 25, 2010 ................................ 12,290,603.25 0.00
April 25, 2010 ................................ 11,658,432.32 0.00
May 25, 2010 .................................. 11,034,141.39 0.00
June 25, 2010.................................. 10,417,613.08 0.00
July 25, 2010.................................. 9,808,731.62 0.00
August 25, 2010................................ 9,207,382.77 0.00
September 25, 2010............................. 8,613,453.84 0.00
October 25, 2010............................... 8,026,833.64 0.00
November 25, 2010 ............................. 7,447,412.47 0.00
December 25, 2010.............................. 6,875,082.11 0.00
January 25, 2011............................... 6,309,735.78 0.00
February 25, 2011.............................. 5,751,268.13 0.00
March 25, 2011 ................................ 5,199,575.23 0.00
April 25, 2011 ................................ 4,654,554.53 0.00
May 25, 2011 .................................. 4,116,104.84 0.00
June 25, 2011.................................. 3,584,126.36 0.00
July 25, 2011.................................. 3,058,520.58 0.00
August 25, 2011................................ 2,539,190.34 0.00
September 25, 2011............................. 2,026,039.75 0.00
October 25, 2011............................... 1,518,974.22 0.00
November 25, 2011 ............................. 1,017,900.41 0.00
December 25, 2011.............................. 522,726.23 0.00
January 25, 2012 .............................. 33,360.81 0.00
February 25, 2012 and
thereafter ............................. 0.00 0.00
</TABLE>
P-5
<PAGE>
<PAGE>
EXHIBIT Q
---------
BLOOMBERG DATA
Loan Number
Property Type
Owner Occupied
Loan Purpose
Loan Type
Current Interest Rate
Original Balance
Current Balance
First Payment Date
Maturity Date
Current PNI
Servicing Fee
Loan Term
Foreclosure/REO
Loan to Value Ratio
State Code
Interest Paid to Date
Zip Code
PIF Data
Amortized Remaining Term
Q-1
<PAGE>
<PAGE>
EXHIBIT R
FORM OF SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the
"Agreement") is made and entered into as of [DATE], between LaSalle Home
Mortgage Corporation (the "LHMC") and _______________ (the "Purchaser").
PRELIMINARY STATEMENT
[The Purchaser] [________________ (the "Owner")] is the holder
of [an] [the entire interest] in the Class __ ABN AMRO Mortgage Corporation
Multi-Class Mortgage Pass-Through Certificates, Series 1999-3 (the
"Certificates"). The Certificates were issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") among ABN AMRO
Mortgage Corporation, as depositor, LaSalle Home Mortgage Corporation, as
servicer thereunder (the "Servicer"), and Chase Bank of Texas, National
Association, as trustee (the "Trustee").
[The Owner intends to resell all of the Certificates directly
to the Purchaser on or promptly after the date hereof.]
In connection with such sale, the parties hereto have agreed
that the LHMC, as Servicer, will engage in certain special servicing procedures
relating to foreclosures for benefit of the Purchaser, and that the Purchaser
will deposit funds in a collateral fund to cover any losses attributable to such
procedures as well as all advances and costs in connection therewith, as set
forth herein.
In consideration of the mutual agreements herein contained,
the receipt and sufficiency of which are hereby acknowledged, the LHMC and the
Purchaser agree to the following:
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Collateral Fund: The fund established and maintained pursuant
to Section 3.01 hereof.
Commencement of Foreclosure: The first official action
required under local law in order to commence foreclosure proceedings or to
schedule a trustee's sale under a deed of trust, including (i) in the case of a
mortgage, any filing or service of process necessary to commence an action to
foreclose, or (ii) in the case of a deed of trust, the posting, publishing,
filing or delivery of a notice of sale, but not including in either case (x) any
notice of default, notice of intent to foreclose or sell or any other action
prerequisite to the actions specified in (i) or (ii) above and upon the consent
of the Purchaser which will be deemed given unless expressly withheld within two
Business
R-1
<PAGE>
<PAGE>
Days of notification, (y) the acceptance of a deed-in-lieu of foreclosure
(whether in connection with a sale of the related property or otherwise) or (z)
initiation and completion of a short pay-off.
Current Appraisal: With respect to any Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser at its expense from an appraiser
(which shall not be an affiliate of the Purchaser) acceptable to the LHMC as
nearly contemporaneously as practicable to the time of the Purchaser's election,
prepared based on the LHMC's customary requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser
to delay the Commencement of Foreclosure, made in accordance with Section
2.02(b).
Election to Foreclose: Any election by the Purchaser to
proceed with the commencement of Foreclosure, made in accordance with Section
2.03(a).
Required Collateral Fund Balance: As of any date of
determination, an amount equal to the aggregate of all amounts previously
required to be deposited in the Collateral Fund pursuant to Section 2.02(d)
(after adjustment for all withdrawals and deposits pursuant to Section 2.02(e))
and Section 2.03(b) (after adjustment for all withdrawals and deposits pursuant
to Section 2.03(c)) and Section 3.02 to be reduced by all withdrawals therefrom
pursuant to Section 2.02(g) and Section 2.03(d).
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement
shall have the meanings assigned in the Pooling and Servicing Agreement.
ARTICLE II.
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of
its duties under the Pooling and Servicing Agreement relating
to the realization upon defaulted Loans, the LHMC, as
Servicer, shall provide to the Purchaser the following notices
and reports:
(i) Within five Business Days after each
Distribution Date (or included in or with the monthly
statement to Certificateholders pursuant to the
Pooling and Servicing Agreement), the LHMC shall
provide to the Purchaser a report indicating for the
Trust the number of Loans that are (A) thirty days,
(B) sixty days, (C) ninety days or more delinquent or
(D) in foreclosure, and indicating for each such Loan
the outstanding principal balance.
(ii) Prior to the Commencement of
Foreclosure in connection with any Loan, the LHMC
shall provide the Purchaser with a notice (sent by
R-2
<PAGE>
<PAGE>
telecopier) of such proposed and imminent
foreclosure, stating the loan number and the
aggregate amount owing under the Loan.
(b) If requested by the Purchaser, the LHMC
shall make its servicing personnel available (during their
normal business hours) to respond to reasonable inquiries by
the Purchaser in connection with any Loan identified in a
report under subsection (a)(i)(B), (a)(i)(C), (a)(i)(D) or
(a)(ii) which has been given to the Purchaser; provided, that
(1) the LHMC shall only be required to provide information
that is readily accessible to its servicing personnel and is
non-confidential and (2) the LHMC shall not be required to
provide any written information under this subsection.
(c) In addition to the foregoing, the LHMC
shall provide to the Purchaser such information as the
Purchaser may reasonably request concerning each Loan that is
at least sixty days delinquent and each Loan which has become
real estate owned, through the final liquidation thereof;
provided that the LHMC shall only be required to provide
information that is readily accessible to its servicing
personnel and is non-confidential.
(d) With respect to all Loans which are
serviced at any time by the LHMC through a Subservicer, the
LHMC shall be entitled to rely for all purposes hereunder,
including for purposes of fulfilling its reporting obligations
under this Section 2.01 on the accuracy and completeness of
any information provided to it by the applicable subservicer.
Section 2.02. Purchaser's Election to Delay Foreclosure
Proceedings.
(a) The Purchaser directs the LHMC that in
the event that the LHMC does not receive written notice of the
Purchaser's election pursuant to subsection (b) below within
24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the LHMC under Section
2.01(a)(ii), subject to extension as set forth in Section
2.02(b), the LHMC shall proceed with the Commencement of
Foreclosure in respect of such Loan in accordance with its
normal foreclosure policies without further notice to the
Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser, if the Loan
has been brought current or if a refinancing or prepayment
occurs with respect to the Loan (including by means of a short
payoff approved by the LHMC) (ii) with notice to the Purchaser
if the LHMC has reached the terms of a forbearance agreement
with the borrower. In such latter case the LHMC may complete
such forbearance agreement unless instructed otherwise by the
Purchaser within one Business Day of notification.
(b) In connection with any Loan with respect
to which a notice under Section 2.01(a)(ii) has been given to
the Purchaser, the Purchaser may elect, for reasonable cause
as determined by the Purchaser, to instruct the LHMC to delay
the Commencement of Foreclosure until such term as the
Purchaser determines that the LHMC may proceed with the
Commencement of Foreclosure. Such election must be evidenced
by written notice received within 24 hours (exclusive of any
R-3
<PAGE>
<PAGE>
intervening non-Business Days) of transmission of the notice
provided by the LHMC under Section 2.01(a)(ii). Such 24 hour
period shall be extended for no longer than an additional four
Business Days after the receipt of the information if the
Purchaser requests additional information related to such
foreclosure; provided, however that the Purchaser will have at
least one Business Day to respond to any requested additional
information. Any such additional information shall (i) not be
confidential in nature and (ii) be obtainable by the LHMC from
existing reports, certificates or statements or otherwise be
readily accessible to its servicing personnel. The Purchaser
agrees that it has no right to deal with the mortgagor. If the
LHMC's normal foreclosure policy includes acceptance of a
deed-in-lieu of foreclosure or short payoff, the Purchaser
will be notified and given one Business Day to respond.
(c) With respect to any Loan as to which the
Purchaser has made an Election to Delay Foreclosure, the
Purchaser shall obtain a Current Appraisal as soon as
practicable, and shall provide the LHMC with a copy of such
Current Appraisal.
(d) Within two Business Days of making any
Election to Delay Foreclosure, the Purchaser shall remit by
wire transfer to the LHMC, for deposit in the Collateral Fund,
an amount, as calculated by the LHMC, equal to the sum of (i)
125% of the greater of the outstanding Principal Balance of
the Loan and the value shown in the Current Appraisal referred
to in subsection (c) above (or, if such Current Appraisal has
not yet been obtained, the LHMC's estimate thereof, in which
case the required deposit under this subsection shall be
adjusted upon obtaining of such Current Appraisal), and (ii)
three months' interest on the Loan at the applicable Mortgage
Interest Rate. If any Election to Delay Foreclosure extends
for a period in excess of three months (such excess period
being referred to herein as the "Excess Period"), the
Purchaser shall remit by wire transfer in advance to the LHMC
for deposit in the Collateral Fund the amount, as calculated
by the LHMC, equal to interest on the Loan at the applicable
Mortgage Interest Rate for the Excess Period. The terms of
this Agreement shall no longer apply to the servicing of any
Loan upon the failure of the Purchaser to deposit the above
amounts relating to the Loan within two Business Days of the
Election to Delay Foreclosure.
(e) With respect to any Loan as to which the
Purchaser has made an Election to Delay Foreclosure, the LHMC
may withdraw from the Collateral Fund from time to time
amounts necessary to reimburse the LHMC for all Advances and
Liquidation Expenses thereafter made by the LHMC as Servicer
in accordance with the Pooling and Servicing Agreement. To the
extent that the amount of any such Liquidation Expense is
determined by the LHMC based on estimated costs, and the
actual costs are subsequently determined to be higher, the
LHMC may withdraw the additional amount from the Collateral
Fund. In the event that the Loan is brought current by the
Mortgagor and the foreclosure action is discontinued, the
amounts so withdrawn from the Collateral Fund shall be
redeposited therein as and to the extent that reimbursement
therefor from amounts paid by the Mortgagor is not prohibited
pursuant to the Pooling and Servicing Agreement. Except as
provided in the preceding sentence, amounts withdrawn from the
Collateral Fund to cover Advances and Liquidation Expenses
shall not be redeposited therein or otherwise reimbursed
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to the Purchaser. If and when any such Loan is brought current
by the Mortgagor, all amounts remaining in the Collateral Fund
in respect of such (after adjustment for all withdrawals and
deposits pursuant to this subsection) shall be released to the
Purchaser.
(f) With respect to any Loan as to which the
Purchaser has made an Election to Delay Foreclosure, the LHMC
shall continue to service the Loan in accordance with its
customary procedures (other than the delay in Commencement of
Foreclosure as provided herein). If and when the Purchaser
shall notify the LHMC that it believes that it is appropriate
to do so, the LHMC shall proceed with the Commencement of
Foreclosure. In any event, if the Loan is not brought current
by the mortgagor by the time the loan becomes 6 months
delinquent, the Purchaser's election shall no longer be
effective and at the Purchaser's option, either (i) the
Purchaser shall purchase the Loan from the Trust Fund at a
purchase price equal to the fair market value as shown on the
Current Appraisal, to be paid by (x) applying any balance in
the Collateral Fund to such purchase price, and (y) to the
extent of any deficiency, by wire transfer of immediately
available funds to the LHMC or Trustee; or (ii) the LHMC shall
proceed with the Commencement of Foreclosure.
(g) Upon the occurrence of a liquidation
with respect to any Loan as to which the Purchaser made an
Election to Delay Foreclosure and as to which the LHMC
proceeded with the Commencement of Foreclosure in accordance
with subsection (f) above, the LHMC shall calculate the
amount, if any, by which the value shown on the Current
Appraisal obtained under subsection (c) exceeds the actual
sales price obtained for the related Mortgaged Property (net
of Liquidation Expenses and accrued interest related to the
extended foreclosure period), and the LHMC shall withdraw the
amount of such excess from the Collateral Fund, shall remit
the same to the Trust Fund and in its capacity as Servicer
shall apply such amount as additional Liquidation Proceeds
pursuant to the Pooling and Servicing Agreement. After making
such withdrawal, all amounts remaining in the Collateral Fund
in respect of such Loan (after adjustment for all withdrawals
and deposits pursuant to subsection (e)) shall be released to
the Purchaser.
Section 2.03. Purchaser's Election to Commence Foreclosure
Proceedings.
(a) In connection with any Loan identified
in a report under Section 2.01(a)(i)(B), the Purchaser may
elect, for reasonable cause as determined by the Purchaser, to
instruct the LHMC to proceed with the Commencement of
Foreclosure as soon as practicable. Such election must be
evidenced by written notice received by the LHMC by 5:00 p.m.,
New York City time, on the third Business Day following the
delivery of such report under Section 2.01(a)(i).
(b) Within two Business Days of making any
Election to Foreclose, the Purchaser shall remit to the LHMC,
for deposit in the Collateral Fund, an amount, as calculated
by the LHMC, equal to 125% of the current Principal Balance of
the Loan and three months' interest on the Loan at the
applicable Mortgage Interest Rate. If and when any such Loan
is brought current by the Mortgagor, all amounts in the
Collateral Fund in respect of such Loan shall be
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released to the Purchaser. The terms of this Agreement shall
no longer apply to the servicing of any Loan upon the failure
of the Purchaser to deposit the above amounts relating to the
Loans within two Business Days at the Election to Foreclose.
(c) With respect to any Loan as to which the
Purchaser has made an Election to Foreclose, the LHMC shall
continue to service the Loan in accordance with its customary
procedures (other than to proceed with the Commencement of
Foreclosure as provided herein). In connection therewith, the
LHMC shall have the same rights to make withdrawals for
Advances and Liquidation Expenses from the Collateral Fund as
are provided under Section 2.02(e), and the LHMC shall make
reimbursements thereto to the limited extent provided under
such subsection. The LHMC shall not be required to proceed
with the Commencement of Foreclosure if (i) the same is stayed
as a result of the Mortgagor's bankruptcy or is otherwise
barred by applicable law, or to the extent that all legal
conditions precedent thereto have not yet been complied with
or (ii) the LHMC believes there is a breach of representation
or warranties by the LHMC, which may result in a repurchase or
substitution of such Loan, or (iii) the LHMC reasonably
believes the Mortgaged Property may be contaminated with or
affected by hazardous wastes or hazardous substances (and the
LHMC supplies the Purchaser with information supporting such
belief). The LHMC will repurchase or substitute a Loan
pursuant to the preceding clause (ii) within the time period
specified in the Pooling and Servicing Agreement. Any
foreclosure that has been initiated may be discontinued (i)
without notice to the Purchaser if the Loan has been brought
current or if a refinancing or prepayment occurs with respect
to the Loan (including by means of a short payoff approved by
the LHMC), or (ii) with notice to the Purchaser if the LHMC
has reached the terms of a forbearance agreement unless
instructed otherwise by the Purchaser within two Business Days
of notification.
(d) Upon the occurrence of a liquidation
with respect to any Loan as to which the Purchaser made an
Election to Foreclose and as to which the LHMC proceeded with
the Commencement of Foreclosure in accordance with subsection
(c) above, the LHMC shall calculate the amount, if any, by
which the Principal Balance of the Loan at the time of
liquidation (plus all unreimbursed Advances and Liquidation
Expenses in connection therewith other than those paid from
the Collateral Fund) exceeds the actual sales price obtained
for the related Mortgaged Property, and the LHMC shall
withdraw the amount of such excess from the Collateral Fund,
shall remit the same to the Trust Fund and in its capacity as
Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement.
After making such withdrawal, all amounts remaining in the
Collateral Fund (after adjustment for all withdrawals and
deposits pursuant to subsection (c)) in respect of such Loan
shall be released to the Purchaser.
Section 2.04. Termination.
(a) With respect to all Loans included in
the Trust Fund, the Purchaser's rights to make any Election to
Delay Foreclosure or any Election to Foreclose and the LHMC's
obligations under Section 2.01 shall terminate (i) at such
time as the Certificate Principal Balance of the Certificates
has been reduced to zero,
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(ii) if the greater of (x) 43% (or such lower or higher
percentages that represents the LHMC's actual historical loss
experience with respect to the Loans in the related pool) of
the aggregate principal balance of all Loans that are in
foreclosure or are more than 90 days delinquent on a
contractual basis and REO Properties or if the aggregate
amount that the LHMC estimates will be required to be
withdrawn from the Collateral Fund with respect to Loans as to
which the Purchaser has made an Election to Delay Foreclosure
or an Election to Foreclose exceeds (z) the outstanding
Certificate Principal Balance of the Certificates, or (iii)
upon any transfer by the Purchaser of any interest (other than
the minority interest therein, but only if the transferee
provides written acknowledgment to the LHMC of the Purchaser's
right hereunder and that such transferee will have no rights
hereunder) in the Certificates (whether or not such transfer
is registered under the Pooling and Servicing Agreement),
including any such transfer in connection with a termination
of the Trust Fund. Except as set forth above, this Agreement
and the respective rights, obligations and responsibilities of
the Purchaser and the LHMC hereunder shall terminate upon the
later to occur of (i) the final liquidation of the last Loan
as to which the Purchaser made any Election to Delay
Foreclosure or any Election to Foreclose and the withdrawal of
all remaining amounts in the Collateral Fund as provided
herein and (ii) ten (10) Business Days' notice.
(b) Purchaser's rights pursuant to Section
2.02 or 2.03 of this Agreement shall terminate with respect to
a Loan as to which the Purchaser has exercised its rights
under Section 2.02 or 2.03 hereof, upon Purchaser's failure to
deposit any amounts required pursuant to Section 2.02(d) or
2.03(b).
(c) Neither the Servicer nor any of its
directors, officers, employees or agents shall be under any
liability for any action taken or for refraining from the
taking of any action in good faith pursuant to this Agreement,
or for errors in judgment; provided, however, that this
provision shall not protect the Servicer or any such Person
against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence
in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer
and any director, officer, employee or agent thereof 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.
ARTICLE III.
COLLATERAL FUND; SECURITY INTEREST
Section 3.01. Collateral Fund.
Upon receipt from the Purchaser of the initial amount required
to be deposited in the Collateral Fund pursuant to Article II hereof, the LHMC
shall establish and maintain with itself as a segregated account on its books
and records an account (the "Collateral Fund"), entitled "LaSalle Home Mortgage
Corporation, as Servicer, for the benefit of registered holders of ABN AMRO
Mortgage Corporation Multi-Class Mortgage Pass-Through Certificates, Series
1999-3." Amounts in the Collateral Fund shall continue to be the property of the
Purchaser, subject to the first priority
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security interest granted hereunder for the benefit of the Certificateholders,
until withdrawn from the Collateral Fund pursuant to Section 2.02 or 2.03
hereof.
Upon the termination of this Agreement and the liquidation of
all Loans as to which the Purchaser has made any Election to Delay Foreclosure
or any Election to Foreclose pursuant to Section 2.04 hereof, the LHMC shall
distribute to the Purchaser all amounts remaining in the Collateral Fund
together with any investment earnings thereon.
In no event shall the Purchaser (i) take or cause the Trustee
or the LHMC to take any action that could cause any REMIC established under the
Trust Agreement to fail to qualify as a REMIC or cause the imposition on any
such REMIC of any "prohibited transaction" or "prohibited contribution" taxes or
(ii) cause the Trustee or the LHMC to fail to take any action necessary to
maintain the status of any such REMIC as a REMIC.
Section 3.02. Collateral Fund Permitted Investments.
The LHMC shall, at the written direction of the Purchaser
invest the funds in the Collateral Fund in Eligible Investments. Such direction
shall not be changed more frequently than quarterly. In the absence of any
direction, the LHMC shall select such investments in accordance with the
definition of Eligible Investments in its discretion.
All income and gain realized from any investment as well as
any interest earned on deposits in the Collateral Fund (net of any losses on
such investments) and any payments of principal made in respect of any Eligible
Investment shall be deposited in the Collateral Fund upon receipt. All costs and
realized losses associated with the purchase and sale of Eligible Investments
shall be borne by the Purchaser and the amount of net realized losses shall be
deposited by the Purchaser in the Collateral Fund. The LHMC shall periodically
(but not more frequently than monthly) distribute to the Purchaser upon request
an amount of cash, to the extent cash is available therefor in the Collateral
Fund, equal to the amount by which the balance of the Collateral Fund, after
giving effect to all other distributions to be made from the Collateral Fund on
such date, exceeds the Required Collateral Fund Balance. Any amounts so
distributed shall be released from the lien and security interest of this
Agreement.
Section 3.03. Grant of Security Interest.
The Purchaser grants to the LHMC and the Trustee for the
benefit of the Certificateholders a security interest in and lien on all of the
Purchaser's right, title and interest, whether now owned or hereafter acquired,
in and to: (1) the Collateral Fund, (2) all amounts deposited in the Collateral
Fund and Eligible Investments in which such amounts are invested (and the
distributions and proceeds of such investments) and (3) all cash and non-cash
proceeds of any of the foregoing, including proceeds of the voluntary or
involuntary conversion thereof (all of the foregoing collectively, the
"Collateral").
The Purchaser acknowledges the lien on and security interest
in the Collateral for the benefit of the Certificateholders. The Purchaser shall
take all actions requested by the LHMC or the Trustee as may be reasonably
necessary to perfect the security interest created under this Agreement in the
Collateral and cause it to be prior to all other security interests and liens,
including the execution and delivery to the LHMC for filing of appropriate
financing statements in accordance
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with applicable law. The LHMC shall file appropriate continuation statements, or
appoint an agent on its behalf to file such statements, in accordance with
applicable law.
Section 3.04. Collateral Shortfalls.
In the event that amounts on deposit in the Collateral Fund at
any time are insufficient to cover any withdrawals therefrom that the LHMC or
the Trustee is then entitled to make hereunder, the Purchaser shall be obligated
to pay such amounts to the LHMC or the Trustee immediately upon demand. Such
obligation shall constitute a general corporate obligation of the Purchaser.
ARTICLE IV.
MISCELLANEOUS PROVISIONS
Section 4.01. Amendment.
This Agreement may be amended from time to time by the LHMC
and the Purchaser by written agreement signed by the LHMC and the Purchaser.
Section 4.02. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 4.03. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 4.04. Notices.
All demands, notices and direction hereunder shall be in
writing or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the LHMC,
LaSalle Home Mortgage Corporation
4242 North Harlem Avenue
Norridge, Illinois 60634
Attn:
--------------------------
Phone:
-------------------------
or such other address as may hereafter be furnished in writing by the LHMC, or
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(b) in the case of the Purchaser, with
respect to notices pursuant to Section 2.01,
[Purchaser]
[Address]
Attn: ____________________________________
Phone:____________________________________
Fax: ____________________________________
with respect to all other notices pursuant
to this Agreement,
[Address]
Attn: ____________________________________
Phone:____________________________________
Fax: ____________________________________
or such other address as may hereafter be furnished in writing by the Purchaser.
Section 4.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever, including
regulatory, held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 4.06. 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, and all such provisions shall inure to the benefit of the
Certificateholders; provided, however, that the rights under this Agreement
cannot be assigned by the Purchaser without the consent of the LHMC.
Section 4.07. 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 4.08. Confidentiality.
The Purchaser agrees that all information supplied by or on
behalf of the LHMC pursuant to Sections 2.01 or 2.02, including individual
account information, is the property of the LHMC and the Purchaser agrees to
hold such information confidential and not to disclose such information.
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IN WITNESS WHEREOF, the LHMC and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
LASALLE HOME MORTGAGE CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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Exhibit 4.2
Mortgage Loan Purchase Agreement
Mortgage Loan Purchase Agreement (the "Agreement"), dated as of April
28, 1999 between Standard Federal Bank (the "Seller") and ABN AMRO Mortgage
Corporation (the "Purchaser").
Subject to the terms and conditions of this Agreement, the Seller agrees
to sell and the Purchaser agrees to purchase certain mortgage loans (the
"Mortgage Loans") as described herein and as identified on the Mortgage Loan
Schedule defined in Section 2 hereof. The Mortgage Loans will be purchased on a
servicing retained basis.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Purchase and Sale of the Mortgage Loans.
(a) Pursuant to the terms hereof and upon satisfaction of the conditions
set forth herein, the Seller agrees to sell and the Purchaser agrees to
purchase, Mortgage Loans having the general characteristics set forth in this
Agreement and specifically identified on the Mortgage Loan Schedule, for the
Purchase Price set forth below in Section 3(a) hereof and having an aggregate
principal balance on and as of the date of such Mortgage Loan Schedule (the
"Cut-Off Date") of approximately $247,760,792 after deduction of principal
payments due on or before the Cut-Off Date (which amount may vary plus or minus
5% thereof), or such other aggregate principal balance as agreed by the
Purchaser and the Seller as evidenced by the actual aggregate principal balance
of the Mortgage Loans accepted by the Purchaser on the Closing Date (as defined
below).
(b) Subject to mutual agreement between the Purchaser and the Seller, the
closing for the purchase and sale of the Mortgage Loans shall take place on
April 28, 1999 (the "Closing Date") at the office of Purchaser's counsel in
Chicago, Illinois or such other place as the parties shall agree.
SECTION 2. Mortgage Loan Schedule. Attached to this Agreement as Schedule 1
is a listing of the Mortgage Loans evidenced by promissory notes, mortgage notes
or other evidence of indebtedness (the "Mortgage Notes") evidencing the
indebtedness of an obligor (the "Mortgagor") under the mortgages, deeds of trust
or other instruments securing a Mortgage Loan (the "Mortgages") to be purchased
by and delivered to the Purchaser on the Closing Date (as such may be amended
prior to the Closing Date by mutual agreement of the parties) (the "Mortgage
Loan Schedule"). The "Mortgage Loan Schedule" as of the Closing Date shall refer
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to the Mortgage Loan Schedule as delivered on the Cut-off Date related to such
Mortgage Loans to be purchased by or on behalf of the Purchaser pursuant to the
terms of this Agreement. The Mortgage Loan Schedule shall contain as to each
Mortgage Loan listed thereon, at a minimum, the Mortgage Loan information
indicated on Schedule 2 hereto.
SECTION 3. Purchase Price.
(a) In exchange for the Mortgage Loans, on the Closing Date, the Purchaser
shall transfer to the Seller by wire transfer in immediately available funds the
purchase price (the "Purchase Price") which is equal to the principal balance
thereof as of the Cut-Off Date plus any accrued and unpaid interest thereon to
such Cut-Off Date.
(b) The Purchaser shall be entitled to all scheduled payments of principal
and interest due with respect to the Mortgage Loans after the Cut-Off Date, and
all other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). The Seller shall be entitled to all scheduled payments
of principal and interest due with respect to the Mortgage Loans on or before
the Cut-Off Date, and all other recoveries of principal and interest collected
on or before the Cut-Off Date (other than in respect of principal and interest
on the Mortgage Loans due after the Cut-Off Date). The Principal Balance of each
Mortgage Loan as of the Cut-Off Date is determined after deduction of payments
of principal due on or before the Cut-Off Date whether or not collected.
Therefore, payments of scheduled principal and interest prepaid for a date due
following the Cut-Off Date shall not be deducted from the Principal Balance as
of the Cut-Off Date but such prepaid amounts shall belong to and be promptly
remitted to the Purchaser.
SECTION 4. Examination of Mortgage Files.
Prior to the Closing Date, the Seller will have made files for each
Mortgage Loan, that consist at least of the documents listed on Schedule 3
attached hereto (with respect to each Mortgage Loan, a "Mortgage File", and
collectively, the "Mortgage Files"), available to the Purchaser or its agents,
for examination at the Seller's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Seller. The Purchaser may
purchase all or part of the Mortgage Loans with or without conducting any
partial or complete examination. The fact that the Purchaser or its agents have
conducted or have failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the Purchaser's rights under this Agreement,
including, but not limited to, the rights to demand repurchase, substitution or
other relief as provided in this Agreement.
SECTION 5. Transfer of Mortgage Loans; Possession of Mortgage Files.
(a) On the Closing Date, subject to the satisfaction of the terms and
conditions hereof the Seller shall sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms of
this Agreement, all right, title and interest of the Seller in and to the
Mortgage Loans and all proceeds thereof, wherever located, including without
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limitation, all amounts in respect of principal and interest received or
receivable with respect to Mortgage Loan payments due after the Cut-Off Date
(and including scheduled payments of principal and interest due after the
Cut-Off Date but received by the Seller on or before the Cut-Off Date, but not
including payments of principal and interest due on the Mortgage Loans on or
before the Cut-Off Date), together with the proceeds of any related mortgage
insurance policies. Such transfer shall be made directly to the Purchaser in
accordance with the letter delivered to the Seller by the Purchaser attached
hereto as Exhibit A (the "Instruction Letter"). The Seller's records will
accurately reflect the sale of each Mortgage Loan to the Purchaser.
(b) The ownership of each Mortgage Loan and the related Mortgage Note, the
Mortgage and the contents of the related Mortgage File shall be, upon
satisfaction of subsection 5(a) hereof, vested in the Purchaser and the
ownership of all records and documents with respect to such Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be retained and maintained by the Seller at the
will and for the benefit of the Purchaser in a custodial capacity only. The
Seller shall deliver to the Purchaser or its agent in accordance with the
instructions set forth in Exhibit A, simultaneously with the execution and
delivery of this Agreement or prior to the Closing Date, all of the documents
pertaining to each Mortgage Loan.
(c) The transfer of the Mortgage Loans as described herein shall be
absolute and is intended by the parties to be a sale. In the event that a court
deems the conveyance set forth herein not to constitute a sale, the Seller shall
have granted to the Purchaser and the Trustee a first priority security interest
in the Mortgage Loans and in the proceeds thereof of any kind or nature
whatsoever, and in the proceeds of any related insurance policies, subject to
the satisfaction or waiver of the conditions set forth in Section 11 hereof, and
shall take, or shall cause to have been taken, all steps necessary prior to the
Closing Date to perfect such security interest in the Purchaser.
SECTION 6. Books and Records.
On the Closing Date, following the sale of the Mortgage Loans to the
Purchaser, title to each Mortgage and the related Mortgage Note shall be
transferred to the Purchaser or its assignee in accordance with this Agreement.
All rights arising out of the Mortgage Loans after the Cut-Off Date including,
but not limited to, any and all funds received on or in connection with a
Mortgage Loan and due after the Cut-Off Date shall be received and held by the
Seller in a custodial capacity for the benefit of the Purchaser or its assignee
as the owner of the Mortgage Loans in accordance herewith and shall be delivered
or caused to be delivered by the Seller to the Purchaser or its assignee on or
immediately following the Closing Date. Any funds received by the Seller, the
Purchaser or LaSalle Home Mortgage Corporation after the Cut-Off Date but due
prior to the Cut-Off Date shall remain the property of the Seller and shall be
promptly remitted to the Seller.
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SECTION 7. Further Actions; Financing Statements.
(a) In furtherance of the provisions of Section 5(c) hereof, the Seller
agrees to take or cause to be taken such further actions to execute, deliver and
file or cause to be executed, delivered and filed, such further documents and
instruments (including, without limitation, any UCC financing statements) as may
be necessary, or as the Purchaser may reasonably request, in order to perfect
and maintain the security interest created pursuant to said section and to
otherwise fully effectuate the purposes, terms and conditions of this Agreement,
and the Purchaser shall cooperate in any such action.
(b) The Seller shall: (i) promptly execute, deliver, and file any financing
statements, amendments, continuation statements, assignments, certificates and
other documents with respect to such security interest as may be necessary to
enable the Purchaser to perfect or to maintain the perfection of such security
interest, each in form and substance satisfactory to the Purchaser; and the
Seller hereby grants to the Purchaser, subject to the satisfaction or waiver of
the conditions set forth in Section 11 hereof, the right, at the Purchaser's
option, to file any or all such financing statements, amendments, continuation
statements, assignments, certificates and other documents pursuant to the UCC
and otherwise without its signature and hereby irrevocably appoints the
Purchaser, subject to the satisfaction or waiver of the conditions set forth in
Section 11 hereof, as its attorney-in-fact to execute, deliver and file any such
financing statements, amendments, continuation statements, assignments,
certificates and other documents in the Seller's name and to perform all other
acts which the Purchaser deems appropriate to perfect or to maintain the
perfection of the security interest; and (ii) notify the Purchaser within five
(5) days after the occurrence of any of the following: (A) any change in the
Seller's corporate name or any trade name; (B) any change in the Seller's
location of its chief executive office or principal place of business; and (C)
any merger or consolidation or other change in Seller's identity or material
change in its corporate structure.
SECTION 8. Representations, Warranties and Agreements of Seller.
(a) The Seller hereby represents and warrants to the Purchaser as of the
Closing Date (or such other date as is specified in the related representation
or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a
Federal Savings Bank under the laws of the United States;
(ii) The execution and delivery of this Agreement by the Seller and
its performance of and compliance with the terms of this Agreement will not
violate the Seller's charter or by-laws or will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Seller is a party or by which
the Seller or to which any of the property or assets of the Seller is
subject;
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(iii) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid and legally binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(iv) The Seller 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 might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or might have
consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit its entering
into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA
or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by the Seller pursuant to this Agreement is not subject to the bulk
transfer or any similar statutory provisions in effect in the State of
Michigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule
appearing as an exhibit to this Agreement is true and correct in all
material respects at the date or dates respecting which such
information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan
free and clear of all liens, pledges, charges or security interests of
any nature and has full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and
assign the same;
(c) no payment of principal of or interest on or in respect of
any Mortgage Loan is 30 days or more past due from the Due Date of
such payment;
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(d) to the best of the Seller's knowledge, as of the date of the
transfer of the Mortgage Loans to the Purchaser, there is no valid
offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the
Seller's knowledge, threatened for the total or partial condemnation
of any of the real property, together with any improvements thereto,
securing the indebtedness of the Mortgagor under the related Mortgage
Loan (the "Mortgaged Property") and the Mortgaged Property is free of
material damage and is in good repair and neither the Mortgaged
Property nor any improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects
with applicable state or federal laws, regulations and other
requirements, pertaining to usury, equal credit opportunity and
disclosure laws, and each Mortgage Loan was not usurious at the time
of origination;
(g) to the best of the Seller's knowledge, all insurance premiums
previously due and owing with respect to each Mortgaged Property have
been paid and all taxes and governmental assessments previously due
and owing, and which may become a lien against the Mortgaged Property,
with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law); all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage; and each Mortgage Note and
Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on
the property securing the related Mortgage Note, and that each
Mortgage Loan is covered by an ALTA mortgagee title insurance policy
or other form of policy or insurance generally acceptable to FNMA or
FHLMC, issued by, and is a valid and binding obligation of, a title
insurer acceptable to FNMA or FHLMC insuring the originator, its
successor and assigns, as to the lien of the Mortgage in the original
principal amount of the Mortgage Loan subject only to (a) the lien of
current real property taxes and assessments not yet due and payable,
(b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such
Mortgage acceptable to mortgage lending institutions in the area in
which the Mortgaged Property is
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located or specifically referred to in the appraisal performed in
connection with the origination of the related Mortgage Loan and (c)
such other matters to which like properties are commonly subject which
do not individually, or in the aggregate, materially interfere with
the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has,
except as the Mortgage File may reflect, modified the Mortgage in any
material respect; satisfied, cancelled or subordinated such Mortgage
in whole or in part; released such Mortgaged Property in whole or in
part from the lien of the Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate
or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that
are the subject of any condominium loan are generally acceptable to
FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced
(except for the filing of any notice of default) with respect to the
Mortgage Loan; and except for payment delinquencies not in excess of
30 days, to the best of the Seller's knowledge, 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 of
acceleration; and the Seller has not waived any default, breach,
violation or event of acceleration;
(n) that each Mortgage Loan was originated on FNMA or FHLMC
uniform instruments for the state in which the mortgaged property is
located;
(o) that based upon a representation by each Mortgagor at the
time of origination or assumption of the applicable Mortgage Loan,
100% of the Mortgage Loans measured by Principal Balance were to be
secured by owner-occupied residences and no more than 0% of the
Mortgage Loans measured by Principal Balance were to be secured by
non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at
the time of origination of the related Mortgage Loan, and that each
such appraisal was conducted in accordance with FNMA or FHLMC
criteria, on FNMA or FHLMC forms and comparables on at least three
properties were obtained;
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(q) that no Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely
affect the interests of the Purchaser and the Seller knows of no
conditions which reasonably would cause it to expect any Mortgage Loan
to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or
closed in the name of either: (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 or (ii) a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act or (B) originated or underwritten by an entity
employing underwriting standards consistent with the underwriting
standards of an institution as described in subclause (A)(i) or
(A)(ii) above;
(t) each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Internal Revenue Code of 1986;
(u) each Mortgage Loan that has a Loan-to-Value Ratio in excess
of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the
deferral of accrued interest.
It is understood and agreed that the representations and warranties
set forth in this Section 8 shall survive the sale of the Mortgage Loans to
the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage
Note or assignment of Mortgage or the examination of any Mortgage File.
Upon discovery by either the Seller, the Purchaser or its designees of
a breach of any of the foregoing representations or warranties of the
Seller which materially and adversely affects (1) the value of any of the
Mortgage Loans actually delivered or (2) the interests of the Purchaser
therein, the party discovering such breach shall give prompt written notice
to the other. Within 90 (ninety) days of its discovery or its receipt of
notice of any such breach of a representation or warranty, the Seller
shall, with respect to the Mortgage Loan(s) to which such breach relates,
(i) cure such breach in all material respects (except for a breach of that
portion of the representation and warranty relating to any casualty from
the presence of hazardous waste or hazardous substances), (ii)
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repurchase such Mortgage Loan or Mortgage Loans (or any property acquired
in respect thereof) from the Purchaser at the Purchase Price, as adjusted
for the then current principal balance or (iii) within the 90 (ninety)-day
period following the Closing Date substitute another mortgage loan for such
Mortgage Loan. Such substitute mortgage loan shall on the date of
substitution, (i) have a principal balance not in excess of the principal
balance of the defective Mortgage Loan, (ii) be accruing interest at a rate
of interest at least equal to that of the defected Mortgage Loan, (iii)
have a remaining term to stated maturity not greater than, and not more
than two years less than, that of the Mortgage Loan so substituted, (iv)
have an original loan-to-value ratio not higher than that of the Mortgage
Loan so substituted and a current loan-to-value ratio not higher than that
of the Mortgage Loan so substituted, and (v) comply with all the
representations and warranties relating to Mortgage Loans set forth herein,
as of the date of substitution (such mortgage loan being referred to herein
as a "Qualifying Substitute Mortgage Loan"). Except as set forth in Section
13 hereof, it is understood and agreed that the obligations of the Seller
set forth in this Section 8 to cure, substitute for or repurchase a
defective Mortgage Loan constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties.
The Purchaser, upon receipt by it of the full amount of the Purchase
Price as adjusted for the then current principal balance for a Mortgage
Loan that is repurchased, or upon receipt of the Mortgage File for a
Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted
or repurchased, shall release or cause to be released and reassign to the
Seller the related Mortgage File for the Mortgage Loan that is substituted
and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation, or warranty, as shall be
necessary to vest in the Seller or its designee or assignee title to any
such substituted Mortgage Loan released pursuant hereto, free and clear of
all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Seller at its expense
and shall be reasonably acceptable to the Purchaser, and the Purchaser
shall have no further responsibility with respect to the Mortgage File
relating to such Mortgage Loan that is substituted.
Any cause of action against the Seller or relating to or arising out
of the breach of any representations and warranties made in this Section 8
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach, repurchase such Mortgage Loan or
substitute a Qualifying Substitute Mortgage Loan as specified above, and
(iii) demand upon the Seller by the Purchaser for all amounts payable in
respect of such Mortgage Loan.
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SECTION 9. Representations, Warranties and Agreements of Purchaser.
(a) The Purchaser hereby represents and warrants to the Seller, as of
the date hereof (or such other date as is specified in the related
representation or warranty) as follows:
(i) The Purchaser is a corporation duly formed and validly existing
under the laws of the State of Delaware;
(ii) The execution and delivery of this Agreement by the Purchaser and
its performance of and compliance with the terms of this Agreement will not
violate the Purchaser's corporate charter or by-laws or will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Purchaser
is a party or by which the Purchaser or to which any property or assets of
the Purchaser is subject;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid and legally binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(iv) The Purchaser 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 the Purchaser default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or
might have consequences that would affect its performance hereunder; and
(v) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit its
entering into this Agreement or performing its obligations under this
Agreement;
SECTION 10. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) The obligations of the Seller required to be performed by it on or
prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with and all of the representations and
warranties of the Seller under this Agreement shall be true and correct as of
the date hereof and as of the Closing Date, and no event shall have occurred
which, with notice or the passage of time, or both, would constitute a default
under this
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Agreement, and the Purchaser shall have received a certificate to that effect
signed by an Authorized Officer (as defined below) of the Seller.
(b) The Purchaser or the Purchaser's document custodian shall have
received, or the Purchaser's attorney shall have received in escrow, all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser, as
required pursuant to the respective terms thereof:
(i) An assignment or assignments of the Mortgage Loans to the
Purchaser substantially in the form attached hereto as Exhibit B with such
changes as are required to adapt the assignment to the proper form in the
jurisdiction where the related Mortgage Property is located, and each
original Mortgage Note, duly endorsed originally or by facsimile, without
recourse, to the Purchaser, in each case in accordance with the
instructions set forth in Exhibit A attached hereto, which assignment or
assignments and Mortgage Note shall be delivered to and held by the
Purchaser or its agent on behalf of the Purchaser;
(ii) The Mortgage Loan Schedule prepared by Purchaser dated as of the
related Closing Date and attached hereto;
(iii) A certificate signed by an officer, which officer may be either
a senior vice president, a vice president, an assistant vice president or
assistant secretary (an "Authorized Officer"), dated as of the Closing
Date, substantially in the form attached hereto as Exhibit C to the parties
hereto, and attached thereto copies of the charter and by-laws and a Good
Standing Certificate or a memorandum setting forth the verbal assurances
from the appropriate regulatory authorities with respect to the Seller will
be immediately forthcoming; and
(iv) An opinion of Seller's counsel in substantially the form attached
hereto as Exhibit D.
(v) A security release certification, in a form acceptable to the
Purchaser, executed by the appropriate mortgagee or secured party, if any
of the Mortgage Loans have at any time been subject to any security
interest, pledge or hypothecation for the benefit of such person.
(c) The Seller will furnish to the Purchaser such other certificates of its
officers or others and such other documents to evidence fulfillment of the
conditions set forth in this Agreement as the Purchaser and its attorney may
reasonably request.
SECTION 11. Seller's Conditions to Closing. The obligations of the Seller
under this Agreement shall be subject to the satisfaction, on or prior to the
Closing Date, of the following conditions:
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(a) The obligations of the Purchaser required to be performed by it on or
prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with and all of the representations and
warranties of the Purchaser under this Agreement shall be true and correct as of
the date hereof and as of the Closing Date, and no event shall have occurred
which, with notice or the passage of time, or both, would constitute a default
under this Agreement, and the Seller shall have received a certificate to that
effect signed by an Authorized Officer of the Purchaser.
(b) The Seller shall have received, or the Seller's attorney shall have
received in escrow, all of the following closing documents, in such forms as are
agreed upon and acceptable to the Seller, duly executed by all signatories other
than the Seller as required pursuant to the respective terms thereof:
(i) A certificate signed by an Authorized Officer dated as of the
Closing Date, in the form acceptable to the parties hereto, and attached
thereto the resolutions of the Purchaser authorizing the transactions
contemplated by this Agreement, together with copies of the Articles of
Association and by-laws as of a recent date with respect to the Purchaser;
(c) The Purchaser will furnish to the Seller such other certificates of its
officers or others and such other documents to evidence fulfillment of the
conditions set forth in this Agreement as the Seller and its attorney may
reasonably request.
SECTION 12. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser against
any and all losses, claims, expenses, damages or liabilities to which Purchaser
may become subject, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
representation or warranty made by the Seller in Section 8 hereof on which
Purchaser has relied, being, or alleged to be, materially untrue or incorrect.
This indemnity will be in addition to any liability which the Seller may
otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Seller solely
in its capacity as seller of the Mortgage Loans against any and all losses,
claims, expenses, damages or liabilities to which the Seller may become subject,
insofar as such losses, claims, expenses, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any representation or warranty
made by the Purchaser in Section 9 hereof on which the Seller has relied, being,
or alleged to be, materially untrue or incorrect (notwithstanding the
Purchaser's lack of knowledge with respect to the substance of any
representation or warranty to which Section 9 applies which is made to the best
of the Purchaser's knowledge). This indemnity will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by either the Purchasers or the Seller of notice
of the commencement of any action or proceeding in any way relating to or
arising from this
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Agreement, such party will notify the other party of the commencement thereof;
but the omission so to notify the party from whom indemnification is sought (the
"Indemnifying Party") will not relieve the Indemnifying Party from any liability
which it may have to the party seeking indemnification (the "Indemnified Party")
except to the extent that the Indemnifying Party is adversely affected by the
lack of notice. In case any such action is brought against the Indemnified
Party, and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate in the defense (with the
consent of the Indemnified Party which shall not be unreasonably withheld) of
such action at the Indemnifying Party's expense.
SECTION 13. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, by
registered or certified mail, return receipt requested, or, if by other means,
when received by the other party. Notices to the Seller shall be directed to
InterFirst, 777 East Eisenhower Parkway, Ann Arbor, Michigan 48108, Attention:
Steve Kapp - Vice President with a copy to Standard Federal Bank, 2600 West Big
Beaver Road, Troy, Michigan 48084, Attention: Karen Severn Jackson - Vice
President; and notices to the Purchaser shall be directed to ABN AMRO Mortgage
Corporation, 181 West Madison Street, Suite 3250, Chicago, Illinois 60602,
Attention: Maria Fregosi - Director - ABN AMRO Mortgage Operations; or such
other addresses as may hereafter be furnished to the other party by like notice.
SECTION 14. Termination. This Agreement may be terminated (i) by the mutual
consent of the parties hereto, or (ii) by the Purchaser if the conditions to the
Purchaser's obligations to closing set forth under Section 10 hereof are not
fulfilled as and when required to be fulfilled or (iii) by the Seller if the
Purchaser's obligations under Section 11 hereof are not fulfilled as and when
required. In the event of a termination pursuant to Section 14(ii), the Seller
agrees that it will pay the out-of-pocket fees and expenses of the Purchaser in
connection with the transactions contemplated by this Agreement and in the event
of a termination pursuant to Section 14(iii), the Purchaser agrees that it will
pay the out-of-pocket fees and expenses of the Seller in connection with the
transactions contemplated by this Agreement.
SECTION 15. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
in certificates of officers of the Seller and the Purchaser submitted pursuant
hereto, shall remain operative and in full force and effect and shall survive
transfer and sale of the Mortgage Loans to the Purchaser.
SECTION 16. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, the Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same agreement.
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SECTION 18. Governing Law. This Agreement shall be deemed to have been made
in the State of New York and shall be interpreted in accordance with the laws of
such state without regard to the principles of conflicts of law of such state.
SECTION 19. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
SECTION 20. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the Seller and the Purchaser
and their permitted successors and assigns. The Seller acknowledges and agrees
that the Purchaser may assign its rights under this Agreement. Any person into
which the Seller may be merged or consolidated (or any person resulting from any
merger or consolidation involving the Seller), or any person succeeding to the
business of the Seller shall be considered the "successor" of the Seller
hereunder. Except as provided in the two preceding sentences, this Agreement
cannot be assigned, pledged or hypothecated by any party hereto without the
written consent of the other party to this Agreement. Notwithstanding anything
to the contrary in this Section 20, the parties hereto agree that the Purchaser
has the right to assign its rights and interest in, to and under Section 8
hereof.
SECTION 21. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
Standard Federal Bank,
as Seller
By: /s/ Stewart W. Fleming
---------------------------------
Name: Stewart W. Fleming
Title: Senior Vice President
Mortgage Loan Purchase Agreement
<PAGE>
<PAGE>
ABN AMRO Mortgage Corporation,
as Purchaser
By: /s/ Stewart W. Fleming
---------------------------------
Name: Stewart W. Fleming
Title: Senior Vice President
Mortgage Loan Purchase Agreement
<PAGE>
<PAGE>
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
A copy of the Mortgage Loan Schedule
may be obtained by contacting the Registrant.
<PAGE>
<PAGE>
SCHEDULE 2
MORTGAGE LOAN SCHEDULE INFORMATION
Each Mortgage Loan shall be identified by at least the following
details, among others, relating to each Mortgage Loan:
(i) the loan number of the Mortgage Loan and name of the related Mortgagor;
(ii) the street address of the Mortgaged Property including city, state and
zip code;
(iii) the mortgage interest rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related Mortgage Note;
(v) the original principal balance;
(vi) the first payment date;
(vii) the monthly payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
(ix) the unpaid principal balance as of the close of business on the Cut-Off
Date;
(x) the loan-to-value ratio at origination and as of the Cut-Off Date;
(xi) the type of property;
(xii) the nature of occupancy at origination;
(xiii) the county in which Mortgaged Property is located, if available; and
(xiv) the Closing Date.
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SCHEDULE 3
MORTGAGE FILE INFORMATION
Each Mortgage File shall include at least the following documents, among
others, with respect to each Mortgage Loan transferred and assigned from the
Seller to the Purchaser, or its agent:
(i) the original Mortgage Note bearing all intervening endorsements
endorsed, "Pay to the order of Chase Bank of Texas, National
Association for the benefit of the Certificateholders of ABN AMRO
Mortgage Corporation Series 1999-3 Attn: Corporate Trust Department,
600 Travis Street, Houston, TX 77002, without recourse" and signed
in the name of the Seller by an Authorized Officer showing an
unbroken chain of title from the originator thereof to the person
endorsing;
(ii) (a) the original Mortgage with evidence of recording thereon, and if
the Mortgage was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the
recorder's office, with evidence of recording thereon, or certified
by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage or power
of attorney cannot be delivered with evidence of recording thereon
on or prior to the Closing Date because of a delay caused by the
public recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage has been
lost, the Seller shall deliver or cause to be delivered to the
Purchaser a true and correct copy of such Mortgage, together with
(1) in the case of a delay caused by the public recording office, a
certificate signed by an Authorized Officer of the Seller stating
that such original Mortgage has been dispatched to the appropriate
public recording official for recordation or (2) in the case of an
original Mortgage that has been lost, a certificate by the
appropriate county recording office where such Mortgage is recorded
or from a title insurance company or escrow company indicating that
such original was lost and the copy of the original mortgage is a
true and correct copy;
(b) the original assignment to "Chase Bank of Texas, National
Association, as Trustee," which assignment shall be in form and
substance acceptable for recording, or a copy certified by the
Seller as a true and correct copy of the original assignment which
has been sent for recordation. Subject to the foregoing, such
assignments may, if permitted by law, be by blanket assignments for
Mortgage Loans covering Mortgaged Properties situated within the
same county. If the assignment
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is in blanket form, a copy of the assignment shall be included in
the related individual Mortgage File;
(iii) the originals of any and all instruments that modify the terms and
conditions of the Mortgage Note, including but not limited to
modification, consolidation, extension and assumption agreements
including any adjustable rate mortgage (ARM) rider, if any;
(iv) the originals of all required intervening assignments, if any with
evidence of recording thereon, and if such assignment was executed
pursuant to a power of attorney, a certified true copy of the power
of attorney certified by the recorder's office, with evidence of
recording thereon, or certified by a title insurance company or
escrow company to be a true copy thereof; provided that if such
original assignment or power of attorney cannot be delivered with
evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
original assignment has been delivered for recordation or because
such original assignment has been lost, the Seller shall deliver or
cause to be delivered to the Purchaser a true and correct copy of
such assignment, together with (a) in the case of a delay caused by
the public recording office, a certificate signed by an Authorized
Officer of the Seller stating that such original assignment has been
dispatched to the appropriate public recording official for
recordation or (b) in the case of an original assignment that has
been lost, a certificate by the appropriate county recording office
where such assignment is recorded or from a title insurance company
or escrow company indicating that such original was lost and the
copy of the original assignment is a true and correct copy;
(v) the original mortgage policy of title insurance or in the event such
original title policy is unavailable, any one of an original title
binder, an original preliminary title report or an original title
commitment or a copy thereof certified by the title company with the
original policy of title insurance to follow within 180 days of the
Closing Date;
(vi) the mortgage insurance certificate;
(vii) hazard insurance certificates and copies of the Hazard Insurance
Policy and, if applicable, flood insurance policy; and
(viii) any and all other documents, opinions and certificates executed
and/or delivered by the related Mortgagor and/or its counsel in
connection with the origination of such Mortgage Loan which may
include Truth-in-Lending Statement and other legal statements,
Appraisal and Survey.
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EXHIBIT A
INSTRUCTION LETTER
ABN AMRO Mortgage Corporation
181 West Madison Street, Suite 3250
Chicago, Illinois 60602
________ __, 1999
Standard Federal Bank
2600 West Big Beaver Road
Troy, Michigan 48084
Dear Ladies and Gentlemen:
Pursuant to the Mortgage Loan Purchase Agreement dated as of
_____________ ___, 1999 (the "Purchase Agreement") between you and us, we have
agreed to purchase from you certain Mortgage Loans. All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Purchase Agreement.
In order to facilitate these transactions, and for the purpose of
convenience only, we hereby authorize and direct you to:
<TABLE>
<CAPTION>
Action Due Date
<S> <C>
1. Endorse mortgage notes to: one week prior to funding
"Pay to the order of
Chase Bank of Texas, National Association
for the benefit of the Certificateholders
of ABN AMRO Mortgage Corporation
Series 1999-3, Attn: Corporate Trust
Department, 600 Travis Street,
Houston, TX 77002,
without recourse"
2. Assign mortgages to be recorded one week prior to funding
to Chase Bank of Texas, National Association
for the benefit of the Certificateholders
of ABN AMRO Mortgage Corporation
Series 1999-3:
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<S> <C>
3. Deliver to the Purchaser or its agent all two business days after funding
Mortgage Loan documents pertaining to each
loan
4. Deliver to the Purchaser's servicer all Mortgage one week prior to
Loan servicing documents pertaining to each loan Servicing transfer
date
5. Provide lost mortgage note affidavits, certified one week prior to funding
copies of all missing mortgages, and certified
recorded copies of missing intervening
assignments
6. Mortgage Loan Schedule generated by one day prior to funding
Purchaser and agreed to by Seller
</TABLE>
Sincerely,
ABN AMRO Mortgage Corporation
By:_______________________________
Name:_____________________________
Title:____________________________
-2-
<PAGE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT
Standard Federal Bank, a federal savings bank (the "Seller"), in exchange
for $__________ in hand paid and other good and valuable consideration, hereby
grants, bargains, sells, assigns, transfers, conveys, and sets over to ABN AMRO
Mortgage Corporation, a Delaware corporation (the "Purchaser"), all of the
Seller's right, title, and interest in, to, and under the mortgage loans listed
on Schedule 1 attached hereto, the mortgage notes evidencing or relating to such
mortgage loans, all mortgages, trust deeds, title insurance policies, property
insurance policies, chattel paper, loan guaranties, loan accounts, surveys,
instruments, certificates, and other documents whatsoever evidencing or relating
to such mortgage notes and mortgage loans, and all books, ledgers, books of
account, records, writings, data bases, information, and computer software (and
all documentation therefor or relating thereto, and all licenses relating to or
covering such computer software and/or documentation), and all other property,
rights, title, and interests whatsoever relating to, used, or useful in
connection with, or evidencing, embodying, incorporating, or referring to, any
of the foregoing (the "Mortgages"). The Seller warrants to the Purchaser that
the Seller is the owner of the Mortgages, subject to no liens, claims, or
encumbrances.
<PAGE>
<PAGE>
Dated: _____________, 1999 Standard Federal Bank
By:_________________________________
Name:_____________________________
Title:____________________________
-2-
<PAGE>
<PAGE>
ACKNOWLEDGED ON __________ __, 1999
ABN AMRO Mortgage Corporation
By:_____________________________________
Name:________________________________
Title:_______________________________
-3-
<PAGE>
<PAGE>
STATE OF ____________ )
)
COUNTY OF ___________ )
I, ______________, a Notary Public in and for the said County and State, do
hereby certify that ____________, personally known to me to be the same person
whose name is subscribed to the foregoing instrument as _______________ of
__________________, appeared before me this day in person and, being first
sworn, acknowledged that he signed and delivered the said instrument as his own
free and voluntary act, and as the free and voluntary act of said corporation as
the ___________ of ____________, a ____________, for the uses and purposes
therein set forth and that he was duly authorized to execute the said instrument
by the __________________ of said _________________.
Given under my hand and seal, this ____ day of ____________, 1999.
---------------------------------------------
Notary Public
My commission expires:____________
<PAGE>
<PAGE>
EXHIBIT C
FORM OF OFFICER'S CERTIFICATE
Standard Federal Bank
I, ____________________, do hereby certify pursuant to Section 10(a) and
(b)(iii) of the Purchase Agreement (as hereinafter defined) that I am the duly
elected ____________________ of Standard Federal Bank ("Standard Federal"), a
federal savings bank, and further certify as follows:
1. Attached hereto as Exhibit "A" is a true and correct copy of the charter
of Standard Federal. There has been no amendment or other document filed
affecting the charter as of the date of this certification of Standard Federal,
and no such amendment has been authorized.
2. Attached hereto as Exhibit "B" is a true and correct copy of the by-laws
of Standard Federal as in full force and effect as of the date of this
certification.
3. No proceedings looking toward merger, consolidation, liquidation, or
dissolution of Standard Federal are pending or contemplated.
4. Each person who, as an officer or representative of Standard Federal,
signed, or will sign (a) the Purchase Agreement, and (b) any other document
delivered pursuant thereto or on the date hereof in connection with the Mortgage
Loan Purchase Agreement, dated as of _________ ___, 1999, between Standard
Federal, as seller, and ABN AMRO Mortgage Corporation, as Purchaser (the
"Purchase Agreement") was, at the respective times of such signing and delivery,
and is as of the date hereof duly elected or appointed, qualified and acting as
such officer or representative, and the signatures of such persons appearing on
such documents are their genuine signatures.
5. Attached hereto as Exhibit "C" is a true, complete and correct copy of
the Resolutions of Standard Federal's Board of Directors, which were duly
adopted as of _____ __, 1998, and such Resolutions have not been amended,
altered or repealed, and remain in full force and effect without modification on
the date hereof.
6. Attached hereto as Exhibit "D" is a Good Standing Certificate issued by
the Office of Thrift Supervision as of __________, 199_. A current Good Standing
Certificate has been requested from the Office of Thrift Supervision and will be
supplied when it is received.
7. Standard Federal has performed all obligations and satisfied all
conditions on its part to be performed or satisfied under the Purchase Agreement
on or prior to the Closing Date and all of the representations and warranties of
the Seller under the Purchase Agreement are true and correct as of the date
hereof and as of the Closing Date, and no event has occurred which,
<PAGE>
<PAGE>
with notice or passage of time, or both, would constitute a default under the
Purchase Agreement.
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: __________ __, 199_
Standard Federal Bank
By:___________________________________
Name:_________________________________
Title:________________________________
-2-
<PAGE>
<PAGE>
I, ____________________, [Assistant Secretary] of Standard Federal Bank, a
federal savings bank, hereby certify that ____________________ is the duly
elected, qualified and acting ____________________ of Standard Federal Bank and
that the signature appearing on the preceding page is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: __________ __, 199_
Standard Federal Bank
By:___________________________________
Name:_________________________________
Title:________________________________
-3-
<PAGE>
<PAGE>
[Opinion to be revised in accordance with
general counsel's form of opinion letter]
Exhibit D
[Opinion of Seller's In-house Counsel
pursuant to Section 10(b)(iv)]
__________ __, 1999
ABN AMRO Mortgage Corporation
181 West Madison Street, Suite 3250
Chicago, Illinois 60602
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
Ladies and Gentlemen:
As General Counsel to Standard Federal Bank, a federal savings bank
("Seller"), I and attorneys working under my supervision have acted as counsel
to Seller in connection with the sale of Mortgage Loans by Seller to ABN AMRO
Mortgage Corporation (the "Purchaser") pursuant to a Mortgage Loan Purchase
Agreement, dated as of _________ ___, 1999 (the "Purchase Agreement"), between
the Purchaser and Seller. This opinion is being delivered to the Purchaser
pursuant to Section 10(b)(iv) of the Purchase Agreement. All capitalized terms
not otherwise defined herein have the meanings given them in the Purchase
Agreement.
In rendering the opinions set forth below, we have examined and relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
the charter and by-laws of Seller, the Purchase Agreement and such corporate
records, agreements or other instruments of Seller, and such certificates,
records and other documents, agreements and instruments, including, among other
things, certain documents delivered on the Closing Date, as we have deemed
necessary and proper as the basis for our opinions. In connection with such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, the conformity to executed original
documents of all documents submitted to us in draft and the accuracy of the
matters set forth in the documents we reviewed. We have also assumed that all
documents, agreements and instruments have been
<PAGE>
<PAGE>
ABN AMRO Mortgage Corporation
__________ __, 199_
Page 2
duly authorized, executed and delivered by all parties thereto. As to any facts
material to such opinions that we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of Seller as we have deemed necessary and proper as the basis
for our opinions, including, among other things, the representations and
warranties of Seller in the Purchase Agreement.
Based upon the foregoing, I am of the opinion that:
1. Seller is a federal savings bank, duly organized, validly existing and
in good standing under the laws of the United States and either is not required
to be qualified to do business under the laws of any states where such
qualification is necessary to transact the business contemplated by the Purchase
Agreement, or is qualified to do business under the laws of any states where
such qualification is necessary to transact the business contemplated by the
Purchase Agreement, or is qualified to do business under the laws of any states
where such qualification is necessary to transact the business contemplated by
the Purchase Agreement, and Seller is duly authorized and has full corporate
power and authority to transact the business contemplated by the Purchase
Agreement.
2. The Purchase Agreement has been duly authorized, executed and delivered
by Seller and is a legal, valid and binding obligation of and is enforceable
against Seller in accordance with its terms, except that the enforceability
thereof may be subject to (A) bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other laws, now or hereafter in
effect, relating to creditors' rights generally or the right of creditors of
federal savings banks, (B) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (C) limitations
of public policy under applicable securities laws as to rights of indemnity and
contribution under the Purchase Agreement.
3. No consent, approval, authorization or order of any court or
supervisory, regulatory, administrative or governmental agency or body is
required for the execution, delivery and performance by Seller of or compliance
by Seller with the Purchase Agreement, the sale of the Mortgage Loans or the
consummation of the transactions contemplated by the Purchase Agreement.
4. Neither the execution and delivery by Seller of the Purchase Agreement,
nor the consummation by Seller of the transactions contemplated therein, nor the
compliance by Seller with the provisions thereof, will conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's charter or
by-laws or board or shareholder's resolutions, or any agreement or instrument to
which Seller is now a party or by which it is bound, or constitute a
<PAGE>
<PAGE>
ABN AMRO Mortgage Corporation
__________ __, 199_
Page 3
default or result in an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order, judgment or decree to which
Seller or its property is subject, which, in any of the above cases, would
materially and adversely affect Seller's ability to perform its obligations
under the Purchase Agreement.
5. There is not an action, suit, proceeding or investigation pending, or,
to the best of my knowledge, threatened against Seller which, either in any one
instance or in the aggregate, would draw into question the validity of the
Purchase Agreement or the Mortgage Loans or of any action taken or to be taken
in connection with the obligations of Seller contemplated therein, or which
would be likely to materially impair the ability of Seller to perform under the
terms of the Purchase Agreement.
The Opinions expressed herein are limited to matters of federal and
Michigan law and do not purport to cover any matters as to which laws of any
other jurisdiction are applicable. Except as expressly provided herein, this
opinion is being furnished to you solely for your benefit in connection with the
purchase of the Mortgage Loans, and it is not to be used, circulated, quoted or
otherwise referred to for any purpose without my express written consent.
Sincerely,
Standard Federal Bank
By: ____________________
Title: General Counsel
