----------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
November 25, 1997
STRUCTURED ASSET SECURITIES CORPORATION (as depositor under the Trust
Agreement, dated as of November 1, 1997, providing for the issuance of
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1997-4)
Structured Asset Securities Corporation
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 33-99598 742440850
- --------------------------------- ----------------- ----------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
200 Vesey Street
New York, New York 10285
- ----------------------------- -------------
(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code: (212) 526-5594
No Change
---------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events
------------
A. The Registrant registered issuances of Structured Asset Securities
Corporation Pass-Through Certificates on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Act"), by a Registration Statement on Form S-3 (Registration File No. 33-
99598) (the "Registration Statement"). Pursuant to the Registration
Statement, the Registrant issued approximately $439,334,268 in aggregate
principal amount of Class 1-A1, Class 1-A2, Class 1-AP, Class 1-AX, Class 2-
A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class 2-A7,
Class 2-A8, Class 2-A9, Class 2-AP, Class 2-AX, Class 1-B1, Class 2-B1, Class
B2, Class B3, Class R1 and Class R2 Certificates of its Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 1997-4 on
November 25, 1997. This Current Report on Form 8-K is being filed to satisfy
an undertaking, contained in the definitive Prospectus dated May 21, 1996, as
supplemented by the Prospectus Supplement dated November 21, 1997, to file a
copy of the Trust Agreement (as defined below) executed in connection with
the issuance of the Certificates, a form of which was filed as an exhibit to
the Registration Statement.
The Certificates were issued pursuant to a Trust Agreement (the "Trust
Agreement"), attached hereto as Exhibit 4.1, dated as of November 1, 1997,
-----------
between Structured Asset Securities Corporation, as depositor (the
"Depositor"), and U.S. Bank National Association, as trustee (the "Trustee").
The "Certificates" consist of the following classes: Class 1-A1, Class 1-A2,
Class 1-AP, Class 1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class
2-A5, Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP, Class 2-AX,
Class 1-B1, Class 2-B1, Class B2, Class B3, Class B4, Class B5, Class B6,
Class R1 and Class R2 . The Certificates evidence all the beneficial
ownership interest in a trust fund that consists primarily of two pools of
fixed rate, fully amortizing, conventional, first lien residential mortgage
loans (the "Mortgage Loans") with an aggregate outstanding principal balance
of approximately $443,247,897 as of November 1, 1997, together with certain
other assets. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Trust Agreement.
Item 7. Financial Statements; Pro Forma Financial Information and
---------------------------------------------------------
Exhibits
--------
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1.1 Terms Agreement, dated November 21, 1997, between
Structured Asset Securities Corporation and Lehman
Brothers Inc.
4.1 Trust Agreement, dated as of November 1, 1997, among
Structured Asset Securities Corporation, as Depositor,
and U.S. Bank National Association, as Trustee.
99.1 Seller's Warranties and Servicing Agreement, dated as of
November 1, 1997, between Lehman Capital, A Division of
Lehman Brothers Holdings Inc., as Purchaser, and First
Nationwide Mortgage Corporation, as seller and servicer.
99.2 Mortgage Loan Schedule.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Joseph J. Kelly
-----------------------------------------
Name: Joseph J. Kelly
Title: Vice President
Dated: December 8, 1997
EXHIBIT INDEX
-------------
Exhibit No. Description Page No.
- ----------- ----------- --------
1.1 Terms Agreement
4.1 Trust Agreement
99.1 Seller's Warranties and Servicing Agreement
99.2 Mortgage Loan Schedule
Exhibit 1.1
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-4
TERMS AGREEMENT
---------------
Dated: November 21, 1997
To: Structured Asset Securities Corporation, as Depositor under the Trust
Agreement dated as of November 1, 1997 (the "Trust Agreement").
Re: Underwriting Agreement Standard Terms dated as of April 16, 1996 (the
"Standard Terms," and together with this Terms Agreement, the
"Agreement").
Series Designation: Series 1997-4.
- ------------------
Terms of the Series 1997-4 Certificates: Structured Asset Securities
- ---------------------------------------
Corporation, Series 1997-4 Mortgage Pass-Through Certificates, Class 1-A1,
Class 1-A2, Class 1-AP, Class 1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP,
Class 2-AX, Class 1-B1, Class 2-B1, Class B2, Class B3, Class B4, Class B5,
Class B6, Class R1 and Class R2 (the "Certificates") will evidence, in the
aggregate, the entire beneficial ownership interest in a trust fund (the
"Trust Fund"). The primary assets of the Trust Fund consist of two pools of
adjustable rate, conventional, first lien residential mortgage loans (the
"Mortgage Loans"). Only the Class 1-A1, Class 1-A2, Class 1-AP, Class 1-AX,
Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class
2-A7, Class 2-A8, Class 2-A9, Class 2-AP, Class 2-AX, Class R1 and Class R2
Certificates (collectively, the "Senior Certificates") and the Class 1-B1,
Class 2-B1, Class B2 and Class B3 Certificates (together with the Senior
Certificates, the "Offered Certificates") are being sold pursuant to the
terms hereof.
Registration Statement: File Number 33-99598.
- ----------------------
Certificate Ratings: It is a condition to the issuance of the Senior
- -------------------
Certificates (other than the Class 1-AP, Class 1-AX, Class 2-A5, Class 2-AP
and Class 2-AX Certificates) that they be rated "AAA" by each of Duff &
Phelps Credit Rating Co. ("DCR") and Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies, Inc. ("S&P"). It is a condition to the
issuance of the Class 1-AP, Class 1-AX, Class 2-A5, Class 2-AP and Class 2-AX
Certificates that they be rated "AAA" by DCR and "AAAr" by S&P. It is a
condition to the issuance of the Class 1-B1 and Class 2-B1 Certificates that
they be rated "AA" by DCR and S&P; it is a condition to the issuance of the
Class B2 Certificates that they be rated "A" by DCR; it is a condition to the
issuance of the Class B3 Certificates that they be rated "BBB" by DCR.
Terms of Sale of Offered Certificates: The Depositor agrees to sell to
- -------------------------------------
Lehman Brothers Inc. (the "Underwriter") and the Underwriter agrees to
purchase from the Depositor, the Offered Certificates in the principal
amounts and prices set forth on Schedule 1 annexed hereto. The purchase
price for the Offered Certificates shall be the Purchase Price Percentage set
forth in Schedule 1 plus accrued interest at the initial interest rate per
annum from and including the Cut-off Date up to, but not including, the
Closing Date.
The Underwriter will offer the Offered Certificates to the public from time
to time in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
Cut-off Date: November 1, 1997.
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Closing Date: 10:00 A.M., New York time, on or about November 25, 1997. On
- ------------
the Closing Date, the Depositor will deliver the Offered Certificates to the
Underwriter against payment therefor for the account of the Underwriter.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement
between the Depositor and the Underwriter in accordance with its terms.
LEHMAN BROTHERS INC.
By: /s/ Joseph J. Kelly
-----------------------
Name: Joseph J. Kelly
Title: Vice President
Accepted:
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Stan Labanowski
------------------------------------
Name: Stan Labanowski
Title: Vice President
Schedule 1
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<TABLE>
<CAPTION>
Initial
Certificate Certificate Purchase
Principal Interest Price
Class Amount(1) Rate Percentage
- ----- ----------- ----------- -----------
<S> <C> <C> <C>
Class 1-A1 $56,794,000 6.75% 100.453130%
Class 1-A2 18,000,000 6.75% 99.546880%
Class 1-AP 61,215 (3) 50.000000%
Class 1-AX (2) 6.75% 23.359380%
Class 2-A1 5,000,000 7.00% 100.031250%
Class 2-A2 100,000,000 7.00% 100.500000%
Class 2-A3 98,155,000 6.75% 100.000000%
Class 2-A4 10,000,000 6.60% 100.000000%
Class 2-A5 (2) 0.33% 3.046880%
Class 2-A6 12,268,000 9.00% 105.718570%
Class 2-A7 33,850,000 7.00% 98.375000%
Class 2-A8 19,180,000 7.00% 97.968750%
Class 2-A9 71,500,000 7.00% 100.375000%
Class 2-AP 27,853 (3) 55.000000%
Class 2-AX (2) 7.00% 28.046880%
Class 1-B1 768,000 6.75% 100.265625%
Class 2-B1 6,413,000 7.00% 99.968750%
Class B2 4,521,000 (4) 98.796875%
Class B3 2,796,000 (4) 97.375000%
Class R1 100 7.00% 100.000000%
Class R2 100 7.00% 100.000000%
</TABLE>
________________________________
(1) Approximate.
(2) The Class 1-AX, Class 2-A5 and Class 2-AX Certificates have no
Certificate Principal Amount and will be interest-only Certificates, as
described in the Prospectus Supplement.
(3) The Class 1-AP and Class 2-AP Certificates are principal-only
Certificates and, accordingly, will not accrue interest.
(4) Interest will accrue on the Class B2 and Class B3, Certificates at the
applicable per annum rate described in the Prospectus Supplement.
Exhibit 4.1
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
___________________________
TRUST AGREEMENT
Dated as of November 1, 1997
___________________________
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-4
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
DEFINITIONS
1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.02. Calculations Respecting Mortgage Loans . . . . . . . . . . . . . . 37
1.03. Calculations Respecting Accrued Interest . . . . . . . . . . . . . 37
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
2.01. Creation and Declaration of Trust Fund;
Conveyance of Mortgage Loans . . . . . . . . . . . . . . . . . . . 37
2.02. Acceptance of Trust Fund by Trustee: Review
of Documentation for Trust Fund . . . . . . . . . . . . . . . . . 39
2.03. Representations and Warranties of the Depositor . . . . . . . . . 40
2.04. Discovery of Breach . . . . . . . . . . . . . . . . . . . . . . . 41
2.05. Repurchase, Purchase or Substitution of
Mortgage Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.06. Grant Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE III
THE CERTIFICATES
3.01. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.02. Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.03. Transfer and Exchange of Certificates . . . . . . . . . . . . . . 45
3.04. Cancellation of Certificates . . . . . . . . . . . . . . . . . . . 48
3.05. Replacement of Certificates . . . . . . . . . . . . . . . . . . . 48
3.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . 49
3.07. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . 49
3.08. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . 49
3.09. Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
4.01. (Omitted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.02. (Omitted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.03. Reports to Certificateholders . . . . . . . . . . . . . . . . . . 52
4.04. Certificate Account . . . . . . . . . . . . . . . . . . . . . . . 55
4.05. Determination of LIBOR . . . . . . . . . . . . . . . . . . . . . . 56
4.06. The Class 2-A4 Reserve Fund . . . . . . . . . . . . . . . . . . . 57
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
5.01. Distributions Generally . . . . . . . . . . . . . . . . . . . . . 58
5.02. Distributions from the Certificate Account . . . . . . . . . . . . 58
5.03. Allocation of Realized Losses . . . . . . . . . . . . . . . . . . 66
5.04. Trustee Advances . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.05. Distributions of Principal on Redemption
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.06. The Class 2-A4 Certificate Insurance Policy . . . . . . . . . . . 74
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
6.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 77
6.02. Certain Matters Affecting the Trustee . . . . . . . . . . . . . . 80
6.03. Trustee Not Liable for Certificates . . . . . . . . . . . . . . . 81
6.04. Trustee May Own Certificates . . . . . . . . . . . . . . . . . . . 81
6.05. Eligibility Requirements for Trustee . . . . . . . . . . . . . . . 81
6.06. Resignation and Removal of Trustee . . . . . . . . . . . . . . . . 82
6.07. Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . 83
6.08. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . 83
6.09. Appointment of Co-Trustee, Separate Trustee
or Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.10. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . 85
6.11. Indemnification of Trustee . . . . . . . . . . . . . . . . . . . . 86
6.12. Fees and Expenses of Trustee . . . . . . . . . . . . . . . . . . . 87
6.13. Collection of Monies . . . . . . . . . . . . . . . . . . . . . . . 88
6.14. Trustee To Act; Appointment of Successor . . . . . . . . . . . . . 88
6.15. Additional Remedies of Trustee Upon Event
of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
6.16. Waiver of Defaults . . . . . . . . . . . . . . . . . . . . . . . . 90
6.17. Notification to Holders . . . . . . . . . . . . . . . . . . . . . 91
6.18. Directions by Certificateholders and Duties
of Trustee During Event of Default . . . . . . . . . . . . . . . . 91
6.19. Action Upon Certain Failures of the Servicer
and Upon Event of Default . . . . . . . . . . . . . . . . . . . . 91
ARTICLE VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
7.01. Termination of Trust Fund Upon Repurchase
or Liquidation of All Mortgage Loans . . . . . . . . . . . . . . . 92
7.02. Procedure Upon Termination of Trust Fund . . . . . . . . . . . . . 92
7.03. Additional Trust Fund Termination Requirements . . . . . . . . . . 93
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
8.01. Limitation on Rights of Holders . . . . . . . . . . . . . . . . . 94
8.02. Access to List of Holders . . . . . . . . . . . . . . . . . . . . 95
8.03. Acts of Holders of Certificates . . . . . . . . . . . . . . . . . 96
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
9.01. Trustee To Retain Possession of Certain Documents . . . . . . . . 97
9.02. Preparation of Tax Returns and Other Reports . . . . . . . . . . . 97
9.03. Release of Mortgage Files . . . . . . . . . . . . . . . . . . . . 98
ARTICLE X
REMIC ADMINISTRATION
10.01. REMIC Administration . . . . . . . . . . . . . . . . . . . . . . 99
10.02. Prohibited Transactions and Activities . . . . . . . . . . . . 102
10.03. Indemnification with Respect to Certain Taxes
and Loss of REMIC Status . . . . . . . . . . . . . . . . . . . 103
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Binding Nature of Agreement; Assignment . . . . . . . . . . . . 103
11.02. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 103
11.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.05. Provision of Information . . . . . . . . . . . . . . . . . . . 105
11.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 106
11.07. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
11.08. Severability of Provisions . . . . . . . . . . . . . . . . . . 106
11.09. Indulgences; No Waivers . . . . . . . . . . . . . . . . . . . . 106
11.10. Headings Not To Affect Interpretation . . . . . . . . . . . . . 107
11.11. Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . 107
11.12. Special Notices to the Rating Agencies. . . . . . . . . . . . . 107
11.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.14. Matters Relating to the Class 2-A4 Certificate
Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . 108
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Trustee Final Certification
Exhibit B-2 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Seller's Warranties and Servicing Agreement
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited
Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Class 2-A4 Certificate Insurance Policy
Schedule A Mortgage Loan Schedule
Schedule B Principal Amount Schedules
This TRUST AGREEMENT, dated as of November 1, 1997 (the "Agreement"), is
by and between STRUCTURED ASSET SECURITIES CORPORATION, a Delaware
corporation, as depositor (the "Depositor"), and U.S. BANK NATIONAL
ASSOCIATION, N.A., a national banking association, as trustee (the
"Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Lehman Capital, A
Division of Lehman Brothers Holdings Inc. (the "Seller"), and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date,
the Depositor will acquire the Certificates from the Trust Fund, as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the other property constituting the Trust Fund. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the
Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates. The Depositor is entering into this
Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Certificate Principal Amount (or
Aggregate Notional Amount) and minimum denomination for each Class of
Certificates comprising the interests in the Trust Fund created hereunder.
<TABLE>
<CAPTION>
Class Certificate Interest Initial Certificate Minimum
Designation Rate Principal Amount Denominations
- ---------------------------------------------------------------------------------------
(s) <C> <C> <C>
Class 1-A1 6.75% $56,794,000.00 $100,000
Class 1-A2 6.75% 18,000,000.00 $100,000
Class 1-AP 0.00% 61,214.92 $ 61,215
Class 1-AX 6.75% (2) (5)
Class 2-A1 7.00% 5,000,000.00 $100,000
Class 2-A2 7.00% 100,000,000.00 $100,000
Class 2-A3 6.75% 98,155,000.00 $100,000
Class 2-A4 6.60% 10,000,000.00 $ 1,000
Class 2-A5 0.33% (3) (5)
Class 2-A6 9.00% 12,268,000.00 $100,000
Class 2-A7 7.00% 33,850,000.00 $100,000
Class 2-A8 7.00% 19,180,000.00 $100,000
Class 2-A9 7.00% 71,500,000.00 $100,000
Class 2-AP 0.00% 27,852.59 $27,853
Class 2-AX 7.00% (4) (5)
Class 1-B1 6.75% 768,000.00 $250,000
Class 2-B1 7.00% 6,413,000.00 $250,000
Class B2 (1) 4,521,000.00 $250,000
Class B3 (1) 2,796,000.00 $250,000
Class B4 (1) 1,330,000.00 $250,000
Class B5 (1) 1,330,000.00 $250,000
Class B6 (1) 1,253,626.90 $250,000
Class R1 7.00% 100.00 100
Class R2 7.00% 100.00 100
</TABLE>
______________________
(1) The Certificate Interest Rate with respect to any Distribution Date for
each Class of the Class B2, Class B3, Class B4, Class B5 and Class B6
Certificates is a per annum rate equal to the weighted average of the
Component Interest Rates for the Components of such Class for such date,
weighted on the basis of the Component Principal Amounts of such
Components immediately prior to such date.
(2) The Class 1-AX Certificates will accrue interest on a calculated
aggregate Notional Amount equal, as to any Distribution Date, to the
product of (x) the fraction, the numerator of which is the excess of the
weighted average of the Net Mortgage Rates of the Pool 1 Premium
Mortgage Loans, weighted on the basis of the Scheduled Principal Balance
of such Mortgage Loans as of the first day of the related Interest
Accrual Period, over 6.75%, and the denominator of which is 6.75%, and
(y) the aggregate Schedule Principal Balance of the Pool 1 Premium
Mortgage Loans as of the first day of the related Interest Accrual
Period.
(3) The Class 2-A5 Certificates will accrue interest on an aggregate
Notional Amount equal, with respect to any Distribution Date, to the
Class Certificate Principal Amount of the Class 2-A4 Certificates
immediately prior to such date.
(4) The Class 2-AX Certificates will accrue interest on a calculated
aggregate Notional Amount equal, as to any Distribution Date, to the
product of (x) the fraction, the numerator of which is the excess of the
weighted average of the Net Mortgage Rates of the Pool 2 Premium
Mortgage Loans, weighted on the basis of the Scheduled Principal Balance
of such Mortgage Loans as of the first day of the related Interest
Accrual Period, over 7.00%, and the denominator of which is 7.00%, and
(y) the aggregate Schedule Principal Balance of the Pool 2 Premium
Mortgage Loans as of the first day of the related Interest Accrual
Period.
(5) The Class 1-AX and Class 2-AX Certificates will be issued in minimum
Percentage Interests of 25.0% and 3.0%, respectively. The Class 2-A5
Certificates will be issued in minimum denominations in notional amount
of $5,000,000.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $443,247,897.11.
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
-----------
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: As defined in the Seller's Warranties
----------------------------
and Servicing Agreement.
Accountant: A person engaged in the practice of accounting who
----------
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: None.
------------------------------
Accretion Termination Date: The earlier of (i) the Credit Support
--------------------------
Depletion Date and (ii) the date on which the Class Certificate Principal
Amount of each Class of Accretion Directed Certificates has been reduced to
zero.
Accrual Amount: As to any Class of Accrual Certificates and any
--------------
Accrual Component and each Distribution Date through the Credit Support
Depletion Date, the sum of (x) any amount of Accrued Certificate Interest
allocable to such Class or Component pursuant to Section 5.02(a)(ii) on such
Distribution Date and (y) any Interest Shortfall allocable to such Class or
Component pursuant to Section 5.02(a)(iii) on such Distribution Date. As to
any Class of Accrual Certificates and any Accrual Component and each
Distribution Date after the Credit Support Depletion Date, zero.
Accrual Certificate: None.
-------------------
Accrual Component: None.
-----------------
Accrued Certificate Interest: As to any Class of Certificates or
----------------------------
Component and any Distribution Date, the product of the Certificate Interest
Rate or Component Interest Rate for such Class of Certificates or Component
and the outstanding Class Certificate Principal Amount (or Aggregate Notional
Amount) or Component Principal Amount of such Class of Certificates or
Component immediately preceding such Distribution Date, as reduced by (i)
such Class's or Component's pro rata share of the interest portion of any
Excess Losses with respect to the related Mortgage Pool for such date and,
after the Credit Support Depletion Date for the related Certificate Group,
any Realized Losses with respect to the related Mortgage Pool for such date,
(ii) after the Credit Support Depletion Date for the related Certificate
Group, such Class's or Component's pro rata share of any Relief Act Reduction
with respect to the related Mortgage Pool for such date and (iii) any
Deferred Interest allocated to such Class or Component on such date.
Additional Collateral: None.
---------------------
Adjustable Rate Mortgage Loan: None.
-----------------------------
Advance: An advance of the aggregate of payments of principal and
-------
interest (net of the Servicing Fee) on one or more Mortgage Loans that were
due on the Due Date in the related Due Period and not received as of the
close of business on the related Determination Date, required to be made by
the Servicer pursuant to the Seller's Warranties and Servicing Agreement (or
by the Trustee hereunder).
Affiliate: With respect to any specified Person, any other Person
---------
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Aggregate Class 2-A4 Certificate Insurance Premium: As to any
--------------------------------------------------
Distribution Date, the sum of (a) the Class 2-A4 Certificate Insurance
Premium for such Distribution Date and (b) the amount of any Class 2-A4
Certificate Insurance Premium that was not distributed to the Class 2-A4
Certificate Insurer on any prior Distribution Date.
Aggregate Notional Amount: With respect to the Class 1-AX,
-------------------------
Class 2-A5 and Class 2-AX Certificates, the applicable aggregate notional
amount described in the Preliminary Statement hereto.
Aggregate Principal Balance: The aggregate of the Scheduled
---------------------------
Principal Balances for all Mortgage Loans at the date of determination.
Aggregate Voting Interests: The aggregate of the Voting Interests of
--------------------------
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
---------
hereto.
Appraised Value: With respect to any Mortgage Loan, the amount set
---------------
forth in an appraisal made in connection with the origination of such
Mortgage Loan as the value of the related Mortgaged Property.
AP Principal Distribution Amount: For any Distribution Date and for
--------------------------------
each Certificate Group, the sum of the following amounts:
(i) the applicable AP Percentage of the principal portion of each
Scheduled Payment (without giving effect to any Debt Service Reduction
occurring prior to the Bankruptcy Coverage Termination Date) on a
Mortgage Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the applicable AP Percentage of each of the following amounts:
(1) each Principal Prepayment collected during the applicable Prepayment
Period, (2) each other unscheduled collection, including Insurance
Proceeds and Liquidation Proceeds (other than with respect to any
Mortgage Loan in the related Mortgage Pool that was finally liquidated
during the applicable Prepayment Period), representing or allocable to
recoveries of principal received during the applicable Prepayment Period
and (3) the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a
permitted substitution, amounts representing a principal adjustment)
actually received by the Trustee with respect to the applicable
Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the applicable AP
Percentage of the related net Liquidation Proceeds allocable to
principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Assignment of Mortgage: An assignment of the Mortgage, notice of
----------------------
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however,
that the Trustee shall not be responsible for
-------- -------
determining whether any such assignment is in recordable form.
Authenticating Agent: Any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
------------------
Certificate on behalf of the Depositor.
Available Distribution Amount: On any Distribution Date, the sum of
-----------------------------
the following amounts:
(1) the total amount of all cash received by the Servicer through
the related Remittance Date and deposited by the Servicer prior to such
Distribution Date with respect to the Mortgage Loans (including proceeds
of any Insurance Policy and any other credit support relating to the
Mortgage Loans), plus all Advances made by the Servicer (or Trustee) for
such Distribution Date and any Compensating Interest Payment for such
date, but not including:
(a) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(b) all Scheduled Payments of principal and interest
collected but due on a date subsequent to the related Due Period;
(c) all Principal Prepayments received or identified by the
Servicer after the related Prepayment Period (together with any
interest payments received with such prepayments to the extent that
they represent the payment of interest accrued on the related
Mortgage Loans for the period subsequent to the related Prepayment
Period);
(d) any other unscheduled recovery, including Liquidation
Proceeds and Insurance Proceeds received by the Servicer after the
related Prepayment Period; and
(e) all amounts due or reimbursable to the Trustee or the
Servicer pursuant to the terms of this Agreement or to the Servicer
pursuant to the Seller's Warranties and Servicing Agreement; and
(2) any other payment made by the Servicer or the Depositor or any
other Person with respect to such Distribution Date (including the
Purchase Price with respect to any Mortgage Loan repurchased by the
Servicer, the Depositor, Lehman Capital or any other Person).
Bankruptcy: As to any Person, the making of an assignment for the
----------
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in
a bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: As to each Mortgage Pool, the
------------------------------------
Distribution Date on which the Bankruptcy Loss Limit has been reduced to zero
(or less than zero).
Bankruptcy Loss Limit: As to Mortgage Pool 1 and as of the Cut-off
---------------------
Date, $100,000, which amount shall be reduced from time to time by the amount
of Bankruptcy Losses allocated to the Group 1 Certificates. As to Mortgage
Pool 2 and as of the Cut-off Date, $132,408, which amount shall be reduced
from time to time by the amount of Bankruptcy Losses allocated to the Group 2
Certificates.
Bankruptcy Losses: (i) with respect to the Mortgage Loans in the
-----------------
related Mortgage Pool, losses arising from a proceeding under the United
States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of or Mortgaged Property under a Mortgage Loan
in the related Mortgage Pool, including without limitation any such loss
arising from (a) the difference between (i) the principal amount that would
have been due under the original scheduled payments of principal and interest
due on the related Mortgage Loan and (ii) the value established in the
relevant court with respect to such Mortgaged Property, including without
limitation a Deficient Valuation, or (b) a Debt Service Reduction.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
--------------------
Trustee to the effect that any proposed transfer will not (i) cause the
assets of the Trust Fund to be regarded as plan assets for purposes of the
Plan Asset Regulations or (ii) give rise to any fiduciary duty on the part of
the Depositor or the Trustee.
Book-Entry Certificates: Beneficial interests in Certificates
-----------------------
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: Class 1-A1, Class 1-A2,
Class 1-AP, Class 1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4,
Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP,
Class 2-AX, Class 1-B1, Class 1-B2, Class B2 and Class B3 Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
------------
a day on which banking institutions in New York, New York or, if other than
New York, the city in which the Corporate Trust Office of the Trustee is
located, or the State of Maryland, are authorized or obligated by law or
executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by
-----------
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
-------------------
accordance with the provisions of Section 4.04.
Certificate Group: The Group 1 Certificates or the Group 2
-----------------
Certificates, as applicable.
Certificate Interest Rate: With respect to each Class of
-------------------------
Certificates, the applicable per annum rate set forth or described in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
-----------------
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate other
----------------------------
than a Notional Certificate, at the time of determination, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount
set forth on the face of such Certificate (plus, in the case of any Negative
Amortization Certificate, any Deferred Interest allocated thereto on previous
Distribution Dates, and plus, in the case of any Accrual Certificate, its
Percentage Interest of any related Accrual Amount for each previous
Distribution Date), less the amount of all principal distributions previously
made with respect to such Certificate, all Realized Losses previously
allocated to such Certificate, and, in the case of a Subordinate Certificate,
any Subordinate Certificate Writedown Amount previously allocated to such
Certificate. For purposes of Article V hereof, unless specifically provided
to the contrary, Certificate Principal Amounts shall be determined as of the
close of business of the immediately preceding Distribution Date, after
giving effect to all distributions made on such date. Notional Certificates
are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
--------------------- --------------------
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
- ----------------------
"Holder."
Class: All Certificates bearing the same class designation.
-----
Class A Certificate: Any Class 1-A1, Class 1-A2, Class 1-AP,
-------------------
Class 1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5,
Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP or Class 2-AX
Certificate.
Class 1-AP Deferred Amount: As to any Distribution Date on or prior
--------------------------
to the Credit Support Depletion Date for the Group 1 Certificates, the
aggregate of the applicable AP Percentage of the principal portion of each
Realized Loss on a Pool 1 Mortgage Loan, other than an Excess Loss, to be
allocated to the Class 1-AP Certificates on such Distribution Date or
previously allocated to the Class 1-AP Certificates and not yet paid to the
Holders of the Class 1-AP Certificates pursuant to Section 5.02(a)(v)(A).
Class 2-AP Deferred Amount: As to any Distribution Date on or prior
--------------------------
to the Credit Support Depletion Date for the Group 2 Certificates, the
aggregate of the applicable AP Percentage of the principal portion of each
Realized Loss on a Pool 2 Mortgage Loan, other than an Excess Loss, to be
allocated to the Class 2-AP Certificates on such Distribution Date or
previously allocated to the Class 2-AP Certificates and not yet paid to the
Holders of the Class 2-AP Certificates pursuant to Section 5.02(a)(v)(B).
Class 2-A4 Certificate Insurance Premium: With respect to any
----------------------------------------
Distribution Date, and with respect to the Class 2-A4 Certificate Insurance
Policy, an amount equal to 1/12th of the product of (a) the Class Certificate
Principal Amount of the Class 2-A5 Certificates as of such Distribution Date
(prior to giving effect to any distribution thereon on such Distribution
Date) and (b) .07%.
Class 2-A4 Certificate Insurer: MBIA Insurance Corporation, a New
------------------------------
York stock insurance corporation.
Class 2-A4 Certificate Insurer Default: The occurrence and
--------------------------------------
continuance of any of the following events:
(a) the Class 2-A4 Certificate Insurer shall have failed to make a
payment required under the Class 2-A4 Certificate Insurance Policy in
accordance with its terms;
(b) the Class 2-A4 Certificate Insurer shall have (i) filed a
petition or commenced a case or proceeding under any provision or
chapter of the United States Bankruptcy Code or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, (ii) made a general assignment for the
benefit of its creditors, or (iii) had an order for relief entered
against it under the United States Bankruptcy Code or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for Class 2-A4 Certificate Insurer
or for all or any material portion of its property or (ii) authorizing
the taking of possession by a custodian, trustee, agent or receiver of
the Class 2-A4 Certificate Insurer (or the taking of possession of all
or any material portion of the property of the Class 2-A4 Certificate
Insurer).
Class 2-A4 Certificate Insurance Policy: The irrevocable financial
---------------------------------------
guaranty insurance policy, No. 25284, including any endorsements thereto,
issued by the Class 2-A4 Certificate Insurer with respect to the Class 2-A4
Certificates in the form attached hereto as Exhibit K.
Class 2-A4 Policy Payments Account: The separate Eligible Account
----------------------------------
created and maintained by the Trustee pursuant to Section 5.06(c) in the name
of the Trustee for the benefit of the Class 2-A4 Certificateholders and
designated "U.S. Bank National Association, Class 2-A4 Policy Payments
Account in trust for registered holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 1997-4, Class 2-A4".
Funds in the Class 2-A4 Policy Payments Account shall be held in trust for
the Class 2-A4 Certificateholders for the uses and purposes set forth in this
Agreement.
Class 2-A4 Reserve Fund: The separate, interest-bearing Eligible
-----------------------
Account created and maintained by the Trustee pursuant to Section 4.06 with a
depository institution in the name of the Trustee for the benefit of the
Class 2-A4 Certificateholders and designated "U.S. Bank National Association,
Class 2-A4 Reserve Fund in trust for registered holders of Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 1997-4,
Class 2-A4". The Class 2-A4 Reserve Fund will not be a part of the Trust
Fund or any REMIC and, for all federal income tax purposes, will be
beneficially owned by Lehman Brothers Inc.
Class 2-A4 Rounding Account: The separate Eligible Account
---------------------------
established and maintained by the Trustee pursuant to Section 5.05(e) in the
name of the Trustee for the benefit of the Class 2-A4 Certificateholders and
designated "U.S. Bank National Association, Class 2-A4 Rounding Account in
trust for registered holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 1997-4, Class 2-A4". Funds in the
Rounding Account shall be held in trust for the Class 2-A4 Certificateholders
for the uses and purposes set forth in this Agreement. The Class 2-A4
Rounding Account will not be a part of the Trust Fund or any REMIC and, for
all federal income tax purposes, will be beneficially owned by Lehman
Brothers Inc.
Class 2-A9 Percentage: As to any Distribution Date, the percentage
---------------------
equivalent of the fraction, the numerator of which is equal to the Class
Certificate Principal Amount of the Class 2-A9 Certificates immediately prior
to such date and the denominator of which is equal to the sum of aggregate
Certificate Principal Amount of all Certificates in Group 2 other than the
Class 2-AP Certificates and the aggregate Component Principal Amount of the
Group 2 Components immediately prior to such date.
Class 2-A9 Prepayment Shift Percentage: As to any Distribution Date
- -------------------------------------------
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of
the first Distribution Date, the following percentage for such Distribution
Date: for any Distribution Date in the first year thereafter, 30%; for any
Distribution Date in the second year thereafter, 40%; for any Distribution
Date in the third year thereafter, 60%; for any Distribution Date in the
fourth year thereafter, 80%; and for any subsequent Distribution Date, 100%.
Class 2-A9 Priority Amount: As to any Distribution Date, an amount
--------------------------
equal to the lesser of (i) the sum of (x) the product of the Class 2-A9
Percentage for such date, the Class 2-A9 Scheduled Principal Percentage for
such date and the Scheduled Principal Amount for such date and (y) the
product of the Class 2-A9 Percentage for such date, the Class 2-A9 Prepayment
Shift Percentage for such date and the Unscheduled Principal Amount for such
date, and (ii) the Class Certificate Principal Amount of the Class 2-A9
Certificates immediately prior to such date.
Class 2-A9 Scheduled Principal Percentage: As to any Distribution
-----------------------------------------
Date occurring during the five years beginning on the first Distribution
Date, 0%. As to any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date, 100%.
Class B Certificate: Any Class 1-B1, Class 1-B2, Class B2, Class B3,
-------------------
Class B4, Class B5 or Class B6 Certificate.
Class Certificate Principal Amount: With respect to each Class of
----------------------------------
Certificates other than any Class of Notional Certificates, the aggregate of
the Certificate Principal Amounts of all Certificates of such Class at the
date of determination.
Class Percentage: For each Class of Certificates or Component, for
----------------
each Distribution Date, the percentage obtained by dividing the Class
Certificate Principal Amount or Component Principal Amount of such Class or
Component immediately prior to such Distribution Date by the aggregate
Certificate Principal Amount or Component Principal Amount of all
Certificates immediately prior to such date.
Clearing Agency: An organization registered as a "clearing agency"
---------------
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
As of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
---------------------------
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: November 25, 1997.
------------
Code: The Internal Revenue Code of 1986, as amended, and as it may
----
be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: Not applicable.
------------------
Collection Period: With respect to each Mortgage Loan and any
-----------------
Distribution Date, the period beginning immediately following the conclusion
of the next preceding Collection Period (or, in the case of the first
Distribution Date, beginning on the Cut-off Date) and ending at the close of
the Business Day immediately preceding the related Remittance Date.
Compensating Interest Payment: With respect to any Distribution
-----------------------------
Date, the amount paid by the Servicer in respect of Prepayment Interest
Shortfalls pursuant to Section 4.04(viii) of the Seller's Warranties and
Servicing Agreement.
Component: Any of the components of a Class of Subordinate
---------
Certificates having the designations and initial Component Principal Amounts
as follows:
Designation Component Principal Amount
----------- --------------------------
Class B2(1) $ 307,000
Class B2(2) 4,214,000
Class B3(1) 230,000
Class B3(2) 2,566,000
Class B4(1) 231,000
Class B4(2) 1,099,000
Class B5(1) 230,000
Class B5(2) 1,100,000
Class B6(1) 154,183
Class B6(2) 1,099,446
Component Certificate: Any Subordinate Certificate.
---------------------
Component Interest Rate: With respect to any Distribution Date and
-----------------------
(i) the Group 1 Components, the Pool 1 Rate for such date and (ii) the Group
2 Components, the Pool 2 Rate for such date.
Component Principal Amount: As of any Distribution Date and with
--------------------------
respect to any Component, other than any Notional Component, the initial
Component Principal Amount thereof as set forth in the definition of
Component (plus, in the case of any Negative Amortization Component, any
Deferred Interest allocated thereto on previous Distribution Dates and plus,
in the case of any Accrual Component, any related Accrual Amount for each
previous Distribution Date), less the sum of (x) all amounts distributed in
reduction thereof on previous Distribution Dates pursuant to Section 5.02,
(y) the amount of all Realized Losses previously allocated thereto pursuant
to Section 5.03 and (z) any Subordinate Certificate Writedown Amount
previously allocated to such Component.
Conventional Loan: A Mortgage Loan that is not insured by the United
-----------------
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: Any Convertible Mortgage Loan with respect
-----------------------
to which the related Mortgagor has exercised its option to covert the
Mortgage Rate thereof from an adjustable to a fixed rate.
Convertible Mortgage Loan: None.
-------------------------
Corporate Trust Office: The principal corporate trust office of the
----------------------
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 180 East Fifth
Street, St. Paul, Minnesota 55101, Attention: Structured Finance (SASCO 1997-
4).
Corresponding Class: With respect to any class of Lower Tier
-------------------
Interests, the Class of Certificates or Component bearing the identical
alphabetical and numerical designation. With respect to any Class of
Certificates or Component, the class or classes of Lower Tier Interests
bearing the identical alphabetical and numerical designation.
Credit Support Depletion Date: As to each Certificate Group, the
- ----------------------------------
Distribution Date on which, giving effect to all distributions on such date,
the aggregate Certificate Principal Amount of the Subordinate Certificates
and the aggregate Component Principal Amount of the Components of such
Certificate Group have been reduced to zero.
Credit Support Percentage: As to any Class 1-B1 or Class 2-B1
-------------------------
Certificates or any Component, and any Distribution Date, the sum of the
Class Percentages of all Certificates and Components in the related
Certificate Group that rank lower in priority than such Component.
Custodial Account: An account or accounts maintained by the Servicer
-----------------
pursuant to the Seller's Warranties and Servicing Agreement, into which it
will deposit collections and recoveries with respect to the Mortgage Loans.
Cut-off Date: November 1, 1997.
------------
Cut-off Date Aggregate Principal Balance: With respect to the
----------------------------------------
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance of all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & Phelps Credit Rating Co., or any successor in interest.
---
Debt Service Reduction: With respect to any Mortgage Loan, a
----------------------
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date thereon as a result of any proceeding under bankruptcy
law or any similar proceeding.
Deceased Holder: With respect to a Holder of a Redemption
---------------
Certificate, as defined in Section 5.05(b).
Deferred Interest: With respect to any Class of Negative
-----------------
Amortization Certificates and any Distribution Date, the aggregate Mortgage
Loan Negative Amortization, if any, for the related Collection Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
-------------------
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
----------------------
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
---------------------
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Depositor: Structured Asset Securities Corporation, a Delaware
---------
corporation, having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the 18th
------------------
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the immediately preceding Business Day.
Disqualified Organization: Either (i) the United States, (ii) any
-------------------------
state or political subdivision thereof, (iii) any foreign government, (iv)
any international organization, (v) any agency or instrumentality of any of
the foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, or (viii) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception
of the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month or, if such day is not
-----------------
a Business Day, the next succeeding Business Day, commencing in December
1997.
Due Date: With respect to any Mortgage Loan, the date on which a
--------
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
----------
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with
----------------
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of
a holding company, the commercial paper or other short term debt or deposit
obligations of such holding company or depository institution, as the case
may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be a "special deposit account") maintained with the Trustee
or any other federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, in a manner acceptable to the
Trustee and the Rating Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations
--------------------
or securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of America
the obligations of which are backed by the full faith and credit of the
United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in its
respective commercial capacity) incorporated or organized under the laws
of the United States of America or any state thereof and subject to
supervision and examination by federal or state banking authorities, so
long as at the time of investment or the contractual commitment
providing for such investment the commercial paper or other short-term
debt obligations of such depository institution or trust company (or, in
the case of a depository institution or trust company which is the
principal subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category or one of its two
highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by GNMA, FNMA or FHLMC with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such
broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each Rating
Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two highest
long-term credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation will
not be Eligible Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued
by such corporation and held as part of the Trust Fund to exceed 20%
of the sum of the Aggregate Principal Balance and the aggregate
principal amount of all Eligible Investments in the Certificate
Account; provided, further, that such securities will not be
Eligible Investments if they are published as being under review with
negative implications from either Rating Agency;
(v) commercial paper (including both noninterest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of issuance
thereof) rated by each Rating Agency in its highest short-term rating
category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States
of America) held by a custodian in safekeeping on behalf of the holders
of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating by
either Rating Agency of any of the Certificates;
provided, however, that no such instrument shall be an Eligible Investment
- -------- -------
if such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument, or (ii)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Subordinate Certificate.
----------------------------
Event of Default: An event described in Section 9.01 of the Seller's
----------------
Warranties and Servicing Agreement, which pursuant to such agreement is a
default by the Servicer and entitles the Trustee to terminate such Servicer.
Excess Loss: With respect to each Mortgage Pool, any Bankruptcy
-----------
Loss, or portion thereof, in excess of the then-applicable Bankruptcy Loss
Limit, any Fraud Loss, or portion thereof, in excess of the then-applicable
Fraud Loss Limit, and any Special Hazard Loss, or portion thereof, in excess
of the then-applicable Special Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
----
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
-----
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: In the case of the Group 1 Senior
---------------------------------
Certificates and the Class 1-B1 Certificates, December 26, 2012, and, in the
case of all other Classes of Certificates, December 27, 2027.
Financial Intermediary: A broker, dealer, bank or other financial
----------------------
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
First Nationwide Mortgage: First Nationwide Mortgage Corporation, a
-------------------------
wholly owned subsidiary of California Federal Bank, FSB, or any successor in
interest.
FNMA: The Federal National Mortgage Association, a federally
----
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: With respect to each Mortgage Pool, any Realized Loss on
----------
a Mortgage Loan in such Mortgage Pool sustained by reason of a default
arising from fraud, dishonesty or misrepresentation in connection with the
related Mortgage Loan.
Fraud Loss Limit: As of the Cut-off Date, with respect to Pool 1,
----------------
$766,753, and with respect to Pool 2, $7,329,448. In the case of Poo1, the
Pool 1 Fraud Loss Limit shall be reduced by the amount of Fraud Losses
allocated to the Certificates and Components of Group 1, (i) on the first and
second anniversaries of the Cut-off Date, to an amount equal to the excess of
1.00% of the Cut-off Date Balance of the Pool 1 Mortgage Loans over the
cumulative amount of Fraud Losses allocated to the Certificates and
Components of Group 1, (ii) on the third and fourth anniversaries of the Cut-
off Date, to an amount equal to the excess of 0.50% of the Cut-off Date
Balance of the Mortgage Loans in Pool 1 over the cumulative amount of Fraud
Losses allocated to the Certificates of Group 1, and (iii) on the fifth
anniversary of the Cut-off Date, to zero. In the case of Pool 2, the Pool
2 Fraud Loss Limit shall be reduced by the amount of Fraud Losses allocated
to the Certificates and Components of Group 2, (i) on the first anniversary
of the Cut-off Date, to an amount equal to the excess of 2% of the Cut-off
Date Balance of the Pool 2 Mortgage Loans over the cumulative amount of
Fraud Losses allocated to the Certificate and Components of Group 2, (ii)
on the second, third and fourth anniversaries of the Cut-off Date, to an
amount equal to the excess of 1.0% of the Cut-off Date Balance of the
Mortgage Loans in Pool 2 over the cumulative amount of Fraud Losses
allocated to the Certificates and Components of Group 2 and (iii) on the
fifth anniversary of the Cut-off Date, to zero.
GNMA: The Government National Mortgage Association, a wholly owned
----
corporate instrumentality of the United States within HUD.
Group 1: All of the Group 1 Certificates.
-------
Group 1 Certificate: Any Class 1-A1, Class 1-A2, Class 1-AP, Class
-------------------
1-AX, Class 1-B1 Certificate, and any B2(1), B3(1), B4(1), B5(1) or B6(1)
Component.
Group 1 Component: Any B2(1), B3(1), B4(1), B5(1) or B6(1)
-----------------
Component.
Group 1 Lower Tier Interest: Any of the Lower Tier Interests 1-A1,
---------------------------
1-A2, 1-AP, 1-AX, 1-B1, B2(1), B3(1), B4(1), B5(1), B6(1) or R1.
Group 1 Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-AP
--------------------------
or Class 1-AX Certificate.
Group 2: All of the Group 2 Certificates.
-------
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3, Class
-------------------
2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP,
Class 2-AX, Class 2-B1 Certificate, and any B2(2), B2(2), B3(2), B4(2), B5(2)
or B6(2) Component.
Group 2 Component: any B2(2), B3(2), B4(2), B5(2) or B6(2)
-----------------
Component.
Group 2 Lower Tier Interest: Any of the Lower Tier Interests 2-A1,
---------------------------
2-A2, 2-A3, 2-A4, 2-A5, 2-A6, 2-A7, 2-A8, 2-A9, 2-AP, 2-AX, 2-B1, B2(2),
B3(2), B4(2), B5(2) or B6(2) or R2.
Guaranteed Distributions: With respect to any Distribution Date, (i)
------------------------
the Accrued Certificate Interest for the Class 2-A4 Certificates for such
Distribution Date, including the amount of any Net Prepayment Interest
Shortfalls allocable to the Class 2-A4 Certificates on such Distribution
Date that are not covered by the Class 2-A4 Reserve Fund, net of any
Relief Act Reduction allocable to such Class on such date, (ii) the amount
of any Realized Loss, including any Excess Loss, allocated to the Class
2-A4 Certificates on such Distribution Date and (iii) the Class Certificate
Principal Amount of the Class 2-A4 Certificates to the extent unpaid on the
final Distribution Date.
Holder or Certificateholder: The registered owner of any Certificate
------ -----------------
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Servicer, the Trustee or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to
effect any such consent has been obtained, except that, in determining
whether the Trustee shall be protected in relying upon any such consent, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be disregarded. The Trustee may request and conclusively rely on
certifications by the Depositor or the Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor or the Servicer.
HUD: The United States Department of Housing and Urban Development,
---
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
-----------
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other
Person, and (c) is not connected with such other Person or any Affiliate of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
Individual Redemption Certificate: A Redemption Certificate with a
---------------------------------
$1,000 Certificate Principal Amount.
Initial LIBOR Rate: None.
------------------
Insurance Policy: Any Primary Mortgage Insurance Policy and any
----------------
standard hazard insurance policy, flood insurance policy, earthquake
insurance policy or title insurance policy relating to the Mortgage Loans or
the Mortgaged Properties, to be in effect as of the Closing Date or
thereafter during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
------------------
Policy, other than amounts to be applied to restoration or repair of the
related Mortgaged Property or required to be paid over to the Mortgagor
pursuant to law or the related Mortgage Note.
Interest Accrual Period: With respect to any Distribution Date and
-----------------------
any Class of Certificates (other than any Class of LIBOR Certificates or
Principal Only Certificates) or Component, the one-month period beginning
immediately following the end of the preceding Interest Accrual Period (or
from the Cut-off Date, in the case of the first Interest Accrual Period) and
ending on the last day of the month preceding the month in which such
Distribution Date occurs. With respect to any Distribution Date and any
Class of LIBOR Certificates, the one-month period beginning on the 25th day
of the preceding month and ending on the 24th day of the month in which such
Distribution Date occurs.
Interest Distribution Amount: Not applicable.
----------------------------
Interest Shortfall: With respect to any Class of Certificates and
------------------
any Distribution Date, any Accrued Certificate Interest (net of any Net
Prepayment Interest Shortfalls allocable to such Class) not paid with respect
to a previous Distribution Date.
Intervening Assignments: The original intervening assignments of the
-----------------------
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: November 1, 2027.
-----------------------------
Lehman Capital: Lehman Capital, A Division of Lehman Brothers
--------------
Holdings Inc., or any successor in interest.
LIBOR: The per annum rate determined, pursuant to Section 4.05, on
-----
the basis of London interbank offered rate quotations for one-month
Eurodollar deposits, as such quotations may appear on the display designated
as page "LIUS01M" on the Bloomberg Financial Markets Commodities News (or
such other page as may replace such page on that service for the purpose of
displaying London interbank offered quotations of major banks).
LIBOR Certificate: None.
-----------------
LIBOR Determination Date: The second London Business Day immediately
------------------------
preceding the commencement of each Interest Accrual Period for any LIBOR
Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which
------------------------
the Servicer has determined that all amounts that it expects to recover
on behalf of the Trust Fund from or on account of such Mortgage Loan
have been recovered.
Liquidation Proceeds: As defined in the Seller's Warranties and
--------------------
Servicing Agreement.
Living Holder: Any Holder of a Redemption Certificate other than a
-------------
Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of
-------------------
the principal balance of such Mortgage Loan at origination, or such other
date as is specified, to the Original Value thereof.
London Business Day: Any day on which banks are open for dealing in
-------------------
foreign currency and exchange in London, England and New York City.
Lower Tier Balance: As to each Lower Tier Interest, the Lower Tier
------------------
Balance assigned thereto in Section 10.01(a).
Lower Tier Interest: Any one of the classes of regular interests in
-------------------
the Lower Tier REMIC designated as such in Section 10.01(a).
Lower Tier Interest Rate: As to each Lower Tier Interest, the
------------------------
applicable interest rate, if any, specified in Section 10.01(a) hereof.
Lower Tier REMIC: One of the two separate REMICs comprising the
----------------
Trust Fund, the assets of which consist of the assets and rights specified in
the definition of the term Trust Fund.
Material Defect: As defined in the Seller's Warranties and Servicing
---------------
Agreement.
Moody's: Moody's Investors Service, or any successor in interest.
-------
Mortgage: A mortgage, deed of trust or other instrument encumbering
--------
a fee simple interest in real property securing a Mortgage Note, together
with improvements thereto.
Mortgage File: The mortgage documents listed in Exhibit B to the
-------------
Seller's Warranties and Servicing Agreement pertaining to a particular
Mortgage Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences
-------------
of indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the
Mortgage Loan Schedule, as amended from time to time.
Mortgage Loan Negative Amortization: As to any Adjustable Rate
-----------------------------------
Mortgage Loan, an amount added to the principal balance of such Mortgage Loan
pursuant to the terms of the related Note, equal to the excess, if any, of
interest accrued at the Mortgage Rate to any month over the greater of (a)
the amount of the Scheduled Payment for such month and (b) the amount of
interest received in respect of such month from the related Mortgagor.
Mortgage Loan Sale and Assignment Agreement: The agreement for the
-------------------------------------------
sale of the Mortgage Loans by Lehman Capital to the Depositor and the
assignment to the Depositor of the rights of Lehman Capital under the
Seller's Warranties and Servicing Agreement, between Lehman Capital, as
seller and assignor, and the Depositor, as purchaser and assignee.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
----------------------
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund.
Mortgage Note: The note or other evidence of the indebtedness of a
-------------
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either of Pool 1 or Pool 2.
-------------
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
-------------
interest accrues on such Mortgage Loan.
Mortgaged Property: The fee simple interest in real property,
------------------
together with improvements thereto including any exterior improvements to be
completed within 120 days of disbursement of the related Mortgage Loan
proceeds.
Mortgagor: The obligor on a Mortgage Note.
---------
Negative Amortization Certificate: None.
---------------------------------
Negative Amortization Component: None.
-------------------------------
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
-----------------
Rate thereof reduced by the Servicing Fee Rate.
Net Prepayment Interest Shortfall: With respect to any Distribution
---------------------------------
Date, the excess, if any, of any Prepayment Interest Shortfalls for such date
over any amount that is required under the Seller's Warranties and Servicing
Agreement to be paid by the Servicer in respect of such shortfalls. Any Net
Prepayment Interest Shortfall shall be allocated among all Classes of
Certificates (other than any Class of Principal Only Certificates) and among
the Components (other than any Principal Only Component) of any Component
Certificate in proportion to the respective amounts of Accrued Certificate
Interest otherwise distributable thereon.
Non-AP Percentage: As to any Pool 1 Discount Mortgage Loan, the
-----------------
percentage equivalent of the fraction, the numerator of which is the Net
Mortgage Rate of such Pool 1 Discount Mortgage Loan and the denominator of
which is 6.75%. As to any Pool 1 Non-Discount Mortgage Loan, 100%. As to
any Pool 2 Discount Mortgage Loan, the percentage equivalent of the fraction,
the numerator of which is the Net Mortgage Rate of such Pool 2 Discount
Mortgage Loan and the denominator of which is 7.00%. As to any Pool 2 Non-
Discount Mortgage Loan, 100%.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
--------------------------
Certificate.
Notice of Claim: The notice to be delivered by the Trustee to the
---------------
Class 2-A4 Certificate Insurer with respect to any Distribution Date pursuant
to Section 5.06(a), which shall be in the form attached to the Class 2-A4
Certificate Insurance Policy.
Notional Amount: With respect to any Notional Certificate and any
---------------
Distribution Date, such Certificate's Percentage Interest of the Aggregate
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: The Class 1-AX, Class 2-A5 and Class 2-AX
--------------------
Certificates.
Notional Component: None.
------------------
Notional Component Amount: None.
-------------------------
Offering Document: Either of the Prospectus or the private placement
-----------------
memorandum relating to the Class B4, Class B5 and Class B6 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
---------------------
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
------------------
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor or the Servicer but which must be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the taxation, or the federal income tax status, of
each REMIC.
Original Subordinate Principal Amount: With respect to each
-------------------------------------
Certificate Group, the aggregate sum of the (x) Certificate Principal Amount
of each related Subordinate Certificate and (y) Component Principal Amount of
related Components as of the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
--------------
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
PAC Amount: As to any Distribution Date and any Class of PAC
----------
Certificates and any PAC Component, the amount designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Amount Schedules.
PAC Certificate: None.
---------------
PAC Component: None.
-------------
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
------------
Percentage Interest: With respect to any Certificate, its percentage
-------------------
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate, the Percentage Interest evidenced thereby shall
equal the initial Certificate Principal Amount (or, in the case of a Notional
Certificate, the initial Notional Amount) thereof divided by the initial
Class Certificate Principal Amount (or, in the case of a Notional
Certificate, the initial Aggregate Notional Amount) of all Certificates of
the same Class. With respect to any Class 1-AX or Class 2-AX Certificate,
the Percentage Interest evidenced thereby shall be specified on the face
thereof.
Person: Any individual, corporation, partnership, joint venture,
------
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Lehman Brothers Inc.
---------------
Plan Asset Regulations: The Department of Labor regulations set
----------------------
forth in 29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the fully amortizing Mortgage Loans having
------
original terms to maturity not greater than 15 years as identified on the
Mortgage Loan Schedule.
Pool 1 AP Percentage: As to any Pool 1 Discount Mortgage Loan, the
--------------------
percentage equivalent of a fraction, the numerator of which is the excess of
6.75% over the Net Mortgage Rate of such Pool 1 Discount Mortgage Loan and
the denominator of which is 6.75%. As to any Pool 1 Non-Discount Mortgage
Loan, 0%.
Pool 1 Discount Mortgage Loan: Any Pool 1 Mortgage Loan with a Net
-----------------------------
Mortgage Rate less than 6.75% per annum.
Pool 1 Non-Discount Mortgage Loan: Any Pool 1 Mortgage Loan with a
---------------------------------
Net Mortgage Rate greater than or equal to 6.75% per annum.
Pool 1 Premium Mortgage Loan. Any Pool 1 Mortgage Loan with a Net
----------------------------
Mortgage Rate greater than 6.75% per annum.
Pool 1 Rate: 6.75% per annum.
-----------
Pool 2: The aggregate of the fully amortizing Mortgage Loans having
------
original terms to maturity not less than 15 years or greater than 30 years as
identified on the Mortgage Loan Schedule.
Pool 2 AP Percentage: As to any Pool 2 Discount Mortgage Loan, the
--------------------
percentage equivalent of a fraction, the numerator of which is the excess of
7.00% over the Net Mortgage Rate of such Pool 2 Discount Mortgage Loan and
the denominator of which is 7.00%. As to any Pool 2 Non-Discount Mortgage
Loan, 0%.
Pool 2 Discount Mortgage Loan: Any Pool 2 Mortgage Loan with a Net
-----------------------------
Mortgage Rate less than 7.00% per annum.
Pool 2 Non-Discount Mortgage Loan: Any Pool 2 Mortgage Loan with a
---------------------------------
Net Mortgage Rate greater than or equal to 7.00% per annum.
Pool 2 Premium Mortgage Loan. Any Pool 2 Mortgage Loan with a Net
----------------------------
Mortgage Rate greater than 7.00% per annum.
Pool 2 Rate: 7.00% per annum.
-----------
Pool Rate: Either of the Pool 1 Rate or the Pool 2 Rate.
---------
Prepayment Interest Shortfall: With respect to any full or partial
-----------------------------
Principal Prepayment of a Mortgage Loan, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction), as reduced by the Servicing Fee Rate, on
the Scheduled Principal Balance of such Mortgage Loan immediately prior to
such prepayment and (ii) the amount of interest actually received with
respect to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date, the
-----------------
calendar month preceding the month in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
---------------------------------
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Any principal amount schedules attached
--------------------------
hereto, if applicable, as Schedule B, setting forth the PAC Amounts of any
PAC Certificates and PAC Components, the TAC Amounts of any TAC Certificates
and TAC Components, and the Scheduled Amounts of any Scheduled Certificates
and Scheduled Components.
Principal Distribution Amount: With respect to any Distribution Date
-----------------------------
and any Certificate Group, the sum of the related Senior Principal
Distribution Amount, the related Subordinate Distribution Amount and the
related AP Principal Distribution Amount.
Principal Only Certificate: Any Class 1-AP or Class 2-AP
--------------------------
Certificate.
Principal Prepayment: Any Mortgagor payment of principal or other
--------------------
recovery of principal on a Mortgage Loan that is recognized as having been
received or recovered in advance of its scheduled Due Date and applied to
reduce the principal balance of the Mortgage Loan in accordance with the
terms of the Mortgage Note or Accepted Servicing Practices.
Proceeding: Any suit in equity, action at law or other judicial or
----------
administrative proceeding.
Prospectus: The prospectus supplement dated November 21, 1997,
----------
together with the accompanying prospectus dated May 21, 1996, relating to the
Group 1 Senior Certificates, the Group 2 Senior Certificates and the
Subordinate Certificates (other than the Restricted Certificates).
Purchase Price: With respect to the repurchase of a Mortgage Loan
--------------
pursuant to Article II of this Agreement, an amount equal to the sum of (a)
100% of the unpaid principal balance of such Mortgage Loan and (b) accrued
interest thereon at the Mortgage Rate, from the date as to which interest was
last paid to (but not including) the Due Date immediately preceding the
related Distribution Date. The Servicer (and the Trustee, if applicable)
shall be reimbursed from the Purchase Price for any Advances made
with respect to any Mortgage Loan or related Mortgage Property that are
reimbursable to the Servicer under the Seller's Warranties and Servicing
Agreement (or to the Trustee hereunder).
Qualified GIC: A guaranteed investment contract or surety bond
-------------
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no long-term
debt, whose claims paying ability is rated by each Rating Agency in one
of its two highest rating categories, and whose short-term debt is rated
by each Rating Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action
by any other Person;
(c) provide that if at any time the then current credit standing
of the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result in
a downgrading of any rating of the Certificates, the Trustee shall
terminate such contract without penalty and be entitled to the return of
all funds previously invested thereunder, together with accrued interest
thereon at the interest rate provided under such contract to the date of
delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder: and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Collection Account or the
Certificate Account, as the case may be, not later than the Business Day
prior to any Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
-----------------
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims
paying ability is rated by each Rating Agency in its highest rating category
or whose selection as an insurer will not adversely affect the rating of the
Certificates.
Qualifying Substitute Mortgage Loan: A "Qualified Substitute
-----------------------------------
Mortgage Loan" as defined in the Seller's Warranties and Servicing Agreement.
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify such qualification in writing to the Trustee.
Rating Agency: Each of DCR and S&P; provided, that with respect to
-------------
the Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates,
DCR will be the sole Rating Agency.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
-------------
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Servicer with respect to such
Mortgage Loan (other than Advances of principal and interest), including
expenses of liquidation, and (b) with respect to each Mortgage Loan that has
become the subject of a Deficient Valuation, the difference between the
unpaid principal balance of such Mortgage Loan immediately prior to such
Deficient Valuation and the unpaid principal balance of such Mortgage Loan as
reduced by such Deficient Valuation. In determining whether a Realized Loss
is a Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
-----------
business on the last Business Day of the month immediately preceding the
month in which such Distribution Date occurs.
Redemption Certificate: Any Class 2-A4 Certificate.
----------------------
Reference Banks: As defined in Section 4.05.
---------------
Relief Act Reduction: With respect to any Mortgage Loan as to which
--------------------
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Solders' and Sailors' Civil Relief Act of 1940,
as amended, any amount by which interest collectible on such Mortgage Loan
for the Due Date in the related Collection Period is less than interest
accrued thereon for the applicable one-month period at the Mortgage Rate
without giving effect to such reduction.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
-----
pursuant to Section 10.01(a) hereof.
REMIC Provisions: The provisions of the federal income tax law
-----
relating to real estate mortgage investment conduits, which appear at
sections 860A through 86OG of Subchapter M of Chapter 1 of the Code, and
related provisions, and regulations, including proposed regulations and
rulings, and administrative pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time.
Remittance Date: The day in each month on which the Servicer is
---------------
required to remit payments to the account maintained by the Trustee, which
shall be the 18th day of each month (or the immediately following Business
Day, if such 18th day is not a Business Day).
REO Property: A Mortgaged Property acquired by the Trust Fund
------------
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan or otherwise treated as having been acquired pursuant
to the REMIC Provisions.
Reserve Interest Rate: As defined in Section 4.05.
---------------------
Residual Certificate: Any Class R1 or Class R2 Certificate.
--------------------
Responsible Officer: When used with respect to the Trustee, any Vice
-------------------
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department, or any other officer of the Trustee to whom a matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
Restricted Certificate: Any Class B4, Class B5 or Class B6
----------------------
Certificate.
Rounding Account: The Class 2-A4 Rounding Account.
----------------
S&P: Standard & Poor's Rating Services, a division of The
---
McGraw-Hill Companies, Inc., or any successor in interest.
Scheduled Amount: As to any Distribution Date and any Class of
----------------
Scheduled Certificates and any Scheduled Component, the amount designated as
such for such Distribution Date and such Class or Component as set forth in
the Principal Amount Schedules.
Scheduled Certificate: None.
---------------------
Scheduled Component: None.
-------------------
Scheduled Payment: Each scheduled payment of principal and interest
-----------------
(or of interest only, if applicable) to be paid by the Mortgagor on a
Mortgage Loan, as reduced (except where otherwise specified herein) by the
amount of any related Debt Service Reduction (excluding all amounts of
principal and interest that were due on or before the Cut-off Date whenever
received) and, in the case of an REO Property, an amount equivalent to the
Scheduled Payment with respect to interest that would have been due on the
related Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled Principal Amount: As to any Distribution Date, an amount
- -------------------------------
equal to the amount described in clause (i)(b) of the definition of Senior
Principal Distribution Amount.
Scheduled Principal Balance: (i) with respect to any Mortgage Loan
---------------------------
as of any Distribution Date, the principal balance of such Mortgage Loan at
the close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or
before the Due Date in the related Due Period, whether or not received from
the Mortgagor or advanced by the Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the Prepayment Period ending
in the month prior to the month of such Distribution Date) and (ii) with
respect to any REO Property as of any Distribution Date, the Scheduled
Principal Balance of the related Mortgage Loan on the Due Date immediately
preceding the date of acquisition of such REO Property by the Trustee
(reduced by any amount applied as a reduction of principal on the Mortgage
Loan).
Seller's Warranties and Servicing Agreement: The Seller's Warranties
-------------------------------------------
and Servicing Agreement between First Nationwide Mortgage and Lehman Capital,
dated as of November 1, 1997, attached hereto as Exhibit E.
Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-AP, Class
------------------
1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6,
Class 2-A7, Class 2-A8, Class 2-A9, Class 2-AP, Class 2-AX, Class R-1, or
Class R-2 Certificate.
Senior Percentage: With respect to each Certificate Group and any
-----------------
Distribution Date, the percentage equivalent of the fraction, the numerator
of which is the aggregate Certificate Principal Amount of the related Senior
Certificates immediately prior to such date and the denominator of which is
the sum of the aggregate Certificate Principal Amount of all Classes of
related Senior Certificates (other than, in the case of Group 1, the Class 1-
AP Certificates and, in the case of Group 2, the Class 2-AP Certificates) and
the Class Certificate Principal Amounts of the related Class of Subordinate
Certificates or the Component Principal Amount of the related Components, in
each case, immediately prior to such date.
Senior Prepayment Percentage: With respect to each Certificate Group
----------------------------
and any Distribution Date occurring during the five years beginning on the
first Distribution Date, 100%. The Senior Prepayment Percentage for each
Certificate Group and any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date will be the related Senior
Percentage plus the following percentage of the related Subordinate
Percentage for such Distribution Date: for any Distribution Date in the first
year thereafter, 70%; for any Distribution Date in the second year
thereafter, 60%; for any Distribution Date in the third year thereafter, 40%;
for any Distribution Date in the fourth year thereafter, 20%; and for any
subsequent Distribution Date, 0%; provided, however, that if on any of the
foregoing Distribution Dates the Senior Percentage for any Certificate Group
exceeds the initial Senior Percentage for such Certificate Group, the Senior
Prepayment Percentage for such Certificate Group for such Distribution Date
will once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, except as provided in the next succeeding
paragraph, no decrease in the Senior Prepayment Percentage below the level in
effect for the most recent prior period set forth in the paragraph above
shall be effective on any Distribution Date if, as of the first Distribution
Date as to which any such decrease applies, (i) the average outstanding
principal balance on such Distribution Date and for the preceding five
Distribution Dates of all Mortgage Loans that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and the
Scheduled Payments that would have been due on Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by the Trust Fund if
the related Mortgage Loan had remained in existence) is greater than or equal
to 50% of the sum of (x) the Class Certificate Principal Amount of the
Class B-1 Certificates, in the case of Group 1, or the Class 2-B1
Certificates, in the case of Group 2, and (y) the aggregate Component
Principal Amount of the related Components immediately prior to such
Distribution Date or (ii) cumulative Realized Losses with respect to the
Mortgage Loans in the related Mortgage Pool exceed (a) with respect to the
Distribution Date on the fifth anniversary of the first Distribution Date,
30% of the sum of (x) the Class Certificate Principal Amount of the
Class 1B-1 Certificates, in the case of Group 1, or the Class 2-B1
Certificates, in the case of Group 2, and (y) the Original Subordinate
Principal Balance, (b) with respect to the Distribution Date on the sixth
anniversary of the first Distribution Date, 35% of the Original Subordinate
Principal Amount, (c) with respect to the Distribution Date on the seventh
anniversary of the first Distribution Date, 40% of the Original Subordinate
Principal Amount, (d) with respect to the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the Original Subordinate
Principal Amount, and (e) with respect to the Distribution Date on the ninth
anniversary of the first Distribution Date, 50% of the Original Subordinate
Principal Amount.
Senior Principal Distribution Amount: For any Distribution Date and
------------------------------------
each Certificate Group, the sum of the following amounts:
(i) the product of (a) the related Senior Percentage for such date
and (b) the principal portion (multiplied by the applicable Non-AP
Percentage) of each Scheduled Payment (without giving effect to any Debt
Service Reduction occurring prior to the applicable Bankruptcy Coverage
Termination Date), on a Mortgage Loan in the related Mortgage Pool due
during the related Due Period;
(ii) the product of (a) the related Senior Prepayment Percentage
for such date and (b) each of the following amounts (multiplied by the
applicable Non-AP Percentage): (1) each Principal Prepayment on the
Mortgage Loans in the related Mortgage Pool collected during the related
Prepayment Period, (2) each other unscheduled collection, including
Insurance Proceeds and Liquidation Proceeds (other than with respect to
any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period), representing or
allocable to recoveries of principal received during the related
Prepayment Period, and (3) the principal portion of all proceeds of the
purchase of any Mortgage Loan in the related Mortgage Pool (or, in the
case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related
Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the lesser of (a) the
related net Liquidation Proceeds allocable to principal (multiplied by
the applicable Non-AP Percentage) and (b) the product of the related
Senior Prepayment Percentage for such date and the Scheduled Principal
Balance (multiplied by the applicable Non-AP Percentage) of such related
Mortgage Loan at the time of liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Servicer: First Nationwide Mortgage, as servicer under the Seller's
--------
Warranties and Servicing Agreement, or any successor in interest.
Servicing Advance: As defined in the Seller's Warranties and
-----------------
Servicing Agreement.
Servicing Fee: As defined in the Seller's Warranties and Servicing
-------------
Agreement.
Servicing Fee Rate: A fixed percentage ranging from 0.25% to 0.50%
------------------
of the principal balance of each such Mortgage Loan.
Servicing Officer: Any officer of the Servicer involved in or
-----------------
responsible for the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Trustee, as such list may be amended from time to time.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
-------------------
Realized Loss arising out of any direct physical loss or damage to a
Mortgaged Property which is caused by or results from any cause, exclusive of
any loss covered by a hazard policy or a flood insurance policy required to
be maintained in respect of such Mortgaged Property and any loss caused by or
resulting from (i) normal wear and tear, (ii) conversion or other dishonest
act on the part of the Trustee, the Servicer or any of their agents or
employees, or (iii) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues, or (y) any
Realized Loss arising from or related to the presence or suspected presence
of hazardous wastes or hazardous substances on a Mortgaged Property unless
such loss is covered by a hazard policy or flood insurance policy required to
be maintained in respect of such Mortgaged Property.
Special Hazard Loss Limit: As of the Cut-off Date, with respect to
-------------------------
Pool 1, $1,868,381, and with respect to Pool 2, $9,475,187, each of which
amounts shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the
aggregate of the Scheduled Principal Balances of the Mortgage Loans in the
related Mortgage Pool; (ii) twice the Scheduled Principal Balance of the
Mortgage Loan in the related Mortgage Pool having the highest Scheduled
Principal Balance, and (iii) the aggregate Scheduled Principal Balances of
the Mortgage Loans in the related Mortgage Pool secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate Scheduled Principal Balance of Mortgage Loans of any such
postal zip code area and (b) the related Special Hazard Loss Limit as of the
Closing Date less the amount of Special Hazard Losses incurred with respect
to the Mortgage Loans in the related Mortgage Pool since the Closing Date.
Startup Day: The day designated as such pursuant to Section 10.01(b)
-----------
hereof.
Subordinate Certificate: Any Class B Certificate.
-----------------------
Subordinate Certificate Writedown Amount: With respect to the
----------------------------------------
Certificate Group and as to any Distribution Date, the amount by which (i)
the sum of the Class Certificate Principal Amounts of all the Certificates
and the Component Principal Amounts of all the Components in the related
Certificate Group (after giving effect to the distribution of principal and
the application of Realized Losses in reduction of the Certificate Principal
Amounts of the related Certificates and the Component Principal Amounts of
the related Components on such Distribution Date) exceeds (ii) the aggregate
Scheduled Principal Balance of the Mortgage Loans on the first day of the
month of such Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date
----------------------------
and any Class of Subordinate Certificates, the percentage obtained by
dividing the Class Certificate Principal Amount of such Class or the
Component Principal Amount of such Component immediately prior to such
Distribution Date by the sum of the Certificate Principal Amounts of all
Subordinate Certificates or the Component Principal Amounts of all Components
in the related Certificate Group immediately prior to such date.
Subordinate Percentage: With respect to any Distribution Date and
----------------------
each Certificate Group, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to any Distribution
---------------------------------
Date and each Certificate Group, the difference between 100% and the Senior
Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For any Distribution Date
-----------------------------------------
and each Certificate Group, the sum of the following:
(i) the product of (a) the related Subordinate Percentage for such
date and (b) the principal portion (multiplied by the applicable Non-AP
percentage) of each Scheduled Payment (without giving effect to any Debt
Service Reduction occurring prior to the applicable Bankruptcy Coverage
Termination Date) on a Mortgage Loan due during the related Due Period;
(ii) the product of (a) the related Subordinate Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied by the applicable Non-AP percentage): (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool collected
during the related Prepayment Period, (2) each other unscheduled
collection, including Insurance Proceeds and net Liquidation Proceeds
(other than with respect to any Mortgage Loan in the related Mortgage
Pool that was finally liquidated during the related Prepayment Period),
representing or allocable to recoveries of principal received during
the related Prepayment Period, and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Mortgage
Pool (or, in the case of a permitted substitution, amounts representing
a principal adjustment) actually received by the Trustee during the
related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the related net
Liquidation Proceeds allocable to principal (multiplied by the
applicable Non-AP Percentage) less any related amount paid pursuant to
subsection (iii) of the definition of Senior Principal Distribution
Amount for the related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
TAC Amount: As to any Distribution Date and any Class of TAC
----------
Certificates and any TAC Component, the amount designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Amount Schedules.
TAC Certificate: None.
---------------
TAC Component: None.
-------------
Tax Matters Person: The "tax matters person" as defined in the REMIC
------------------
Provisions.
Termination Price: As defined in Section 7.01 hereof.
-----------------
Title Insurance Policy: A title insurance policy maintained with
----------------------
respect to a Mortgage Loan.
Trust Fund: The corpus of the trust created pursuant to this
----------
Agreement, consisting of the Mortgage Loans, the assignment of the
Depositor's rights under the Mortgage Loan Sale and Assignment Agreement,
such amounts as shall from time to time be held in the Certificate Account,
the Insurance Policies, any REO Property, the Class 2-A4 Certificate
Insurance Policy and the other items referred to in, and conveyed to the
Trustee under, Section 2.01(a).
Trustee: U.S. Bank National Association, or any successor in
-------
interest, or if any successor trustee or any co-trustee shall be appointed as
herein provided, then such successor trustee and such co-trustee, as the case
may be.
Trustee Fee: None. (The Trustee's compensation is described in
-----------
Section 4.04(c).)
Unscheduled Principal Amount: As to any Distribution Date, the sum
----------------------------
of the amounts described in clauses (ii)(b) and (iii) (without regard to the
reference in clause (iii) to the "Senior Prepayment Percentage") of the
definition of Senior Principal Distribution Amount.
Voting Interests: The portion of the voting rights of all the
----------------
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this
Agreement, 97% of all Voting Interests shall be allocated to the Certificates
other than the Class 1-AX, Class 2-A5 and Class 2-AX Certificates, 1% of all
Voting Interests shall be allocated to the Class 1-AX Certificates, 1% of all
Voting Interests shall be allocated to the Class 2-AX Certificates, and 1% of
all Voting Interests shall be allocated to the Class 2-A5 Certificates.
Voting Interests allocated to the Class 2-A5 Certificates shall be allocated
among the Certificates of such Class in proportion to their Notional Amounts.
Voting Interests allocated to the Class 1-AX and Class 2-AX Certificates
shall be allocated among the Certificates of such Class in proportion to
their respective Percentage Interests. Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates within
each such Class) in proportion to their Class Certificate Principal Amounts
(or Certificate Principal Amounts).
Weighted Average Rate: With respect to any Distribution Date, the
---------------------
per annum variable rate equal to the weighted average of the Net Mortgage
Rates of the Mortgage Loans as of the first day of the calendar month
immediately preceding such Distribution Date.
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
--------------------------------------
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Servicer. The Trustee shall not be required
to recompute, verify or recalculate the information supplied to it by the
Servicer.
Section 1.03. Calculations Respecting Accrued Interest. Accrued
----------------------------------------
interest, if any, on any Certificate shall be calculated based upon a 360-day
year consisting of twelve 30-day months.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
-----------------------------------------------------
Mortgage Loans. (a) Concurrently with the execution and delivery of this
- --------------
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, in trust, all the
right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all distributions
of principal and interest due with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Depositor's right, title and interest
in and to the Certificate Account and all amounts from time to time credited
to and the proceeds of the Certificate Account, any REO Property and the
proceeds thereof, the Depositor's rights under any Insurance Policies related
to the Mortgage Loans, and the Depositor's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties, to have and to hold, in trust; and the Trustee declares that,
subject to the review provided for in the Seller's Warranties and Servicing
Agreement, it has received and shall hold the Trust Fund, as trustee, in
trust, for the benefit and use of the Holders of the Certificates and for the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, has caused to be executed, authenticated
and delivered to or upon the order of the Depositor, in exchange for the
Trust Fund, Certificates in the authorized denominations evidencing the
entire ownership of the Trust Fund. In addition, the Depositor has caused
the Class 2-A4 Certificate Insurer to deliver the Class 2-A4 Certificate
Insurance Policy.
Concurrently with the execution and delivery of this agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale and Assignment Agreement, which include all of
the Depositor's rights and interests under the Seller's Warranties and
Servicing Agreement, and delegates its obligations under the Mortgage Loan
Sale and Assignment Agreement, which include the obligations of Lehman
Capital under the Seller's Warranties and Servicing Agreement, (which rights
and interests have been assigned and which obligations have been delegated to
the Depositor by Lehman Capital pursuant to the Mortgage Loan Sale and
Assignment Agreement) to the Trustee. The Trustee hereby accepts such
assignment and delegation, and shall be entitled to exercise all such rights,
and obligated to fulfill such obligations, of the Depositor under the
Mortgage Loan Sale and Assignment Agreement and the Seller's Warranties and
Servicing Agreement as if, for such purpose, it were the Depositor.
(b) In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Custodian, acting on behalf of the Trustee, the documents
or instruments with respect to each Mortgage Loan (each a "Mortgage File") so
transferred and assigned as are specified in the Seller's Warranties and
Servicing Agreement.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-2 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) Assignments of Mortgage shall be recorded; provided, however,
-------- -------
that such Assignments need not be recorded if, in the Opinion of Counsel
(which must be Independent counsel) acceptable to the Trustee and the Rating
Agencies, recording in such states is not required to protect the Trustee's
interest in the related Mortgage Loans. Subject to the preceding sentence,
as soon as practicable after the Closing Date, the Trustee, at the expense of
the Depositor, shall cause to be properly recorded in each public recording
office where the Mortgages are recorded each Assignment of Mortgage.
(d) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above-referenced documents, herewith delivers or causes to be
delivered to the Trustee an Officer's Certificate which shall include a
statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Custodial Account
maintained by the Servicer pursuant to the Seller's Warranties and Servicing
Agreement have been so deposited.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
----------------------------------------------
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
- ----------------------------
hereof, acknowledges receipt (by it or by the Custodian) of the Mortgage
Files pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule,
subject to the review thereof by the Custodian in its capacity as designee of
the Purchaser under the Seller's Warranties and Servicing Agreement and to
the Trustee's review thereof as specified herein. The Custodian executed and
delivered as of November 25, 1997, an initial certification (the "Initial
Certification") certifying as to its receipt of the documents required to be
delivered pursuant to the Seller's Warranties and Servicing Agreement and
identifying any defects in such documents, and delivered such certification
to the Depositor and to First Nationwide Mortgage. Pursuant to Section 3.03
of the Seller's Warranties and Servicing Agreement, First Nationwide Mortgage
is obligated to cure any Material Defect (as defined in the Seller's
Warranties and Servicing Agreement) identified in such Initial Certification,
or to repurchase the related Mortgage Loan or substitute another mortgage loan
therefor, within 60 days of receipt of such Initial Certification or other
notice of such Material Defects.
(b) Prior to the first anniversary of the Closing Date, the Trustee
shall deliver (or cause its custodian to deliver) to the Depositor a Final
Certification substantially in the form annexed hereto as Exhibit B-1
evidencing the completeness of the Mortgage Files in its possession or
control.
(c) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
Section 2.03. Representations and Warranties of the Depositor. (a)
-----------------------------------------------
The Depositor hereby represents and warrants to the Trustee, as of the
Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter into
and perform its obligations under this Agreement, and to create the
trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part
of the Depositor; neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties or the certificate of incorporation or
bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding
in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement;
(b) The representations and warranties of First Nationwide Mortgage
with respect to the Mortgage Loans in the Seller's Warranties and Servicing
Agreement, which have been assigned to the Trustee hereunder, were made as of
November 7, 1997. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation
or warranty of First Nationwide Mortgage under the Seller's Warranties and
Servicing Agreement and (ii) a representation or warranty of Lehman Capital
under the Mortgage Loan Sale and Assignment Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee's
right to enforce the obligations of First Nationwide Mortgage under any
applicable representation or warranty made by it. The Trustee acknowledges
that the representations and warranties of Lehman Capital in Section 1.04(b)
of the Mortgage Loan Sale and Assignment Agreement are applicable only to
facts or conditions that arise or events that occur subsequent to November 7,
1997, and which do not constitute a breach of any representation or warranty
made by First Nationwide Mortgage in Section 3.02 of the Seller's Warranties
and Servicing Agreement. The Trustee acknowledges that Lehman Capital shall
have no obligation or liability with respect to any breach of a
representation or warranty made by it with respect to the Mortgage Loans if
the fact, condition or event constituting such breach also constitutes a
breach of a representation or warranty made by First Nationwide Mortgage in
Section 3.02 of the Seller's Warranties and Servicing Agreement, without
regard to whether First Nationwide Mortgage fulfills its contractual
obligations in respect of such representation or warranty. The Trustee
further acknowledges that the Depositor shall have no obligation or liability
with respect to any breach of any representation or warranty with respect to
the Mortgage Loans under any circumstances.
Section 2.04. Discovery of Breach. It is understood and agreed that
-------------------
the representations and warranties set forth in Section 2.03 and the
representations and warranties of First Nationwide Mortgage and Lehman
Capital assigned to the Trustee hereunder survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and
shall continue throughout the term of this Agreement. Upon discovery by
either the Depositor or the Trustee of a breach of any of the representations
and warranties set forth in Section 2.03 that adversely and materially
affects the value of the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other party. Within 90 days
of the discovery of such a breach with respect to the representations and
warranties given to the Trustee, the Depositor shall either (a) cure such
breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Trustee at the Purchase Price
or (c) within the two year period following the Closing Date, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage
------------------------------------------------
Loans. (a) With respect to any Mortgage Loan repurchased by the
- -----
Depositor pursuant to this Article II, by First Nationwide Mortgage pursuant
to the Seller's Warranties and Servicing Agreement or by Lehman Capital
pursuant to the Mortgage Loan Sale and Assignment Agreement, the principal
portion of the funds received by the Trustee in respect of such repurchase of
a Mortgage Loan will be considered a Principal Prepayment and shall be
deposited in the Certificate Account. The Trustee, upon receipt of the full
amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of
the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for a
Deleted Mortgage Loan, shall release or cause to be released and reassign to
the Depositor, First Nationwide Mortgage or Lehman Capital, as applicable,
the related Mortgage File for the Deleted Mortgage Loan and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as shall be necessary to vest in such
party or its designee or assignee title to any Deleted Mortgage Loan released
pursuant hereto, free and clear of all security interests, liens and other
encumbrances created by this Agreement, which instruments shall be prepared
by the Trustee (or its custodian) at the Depositor's expense, and the Trustee
shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) by the Depositor pursuant to the
terms of this Article II in exchange for a Deleted Mortgage Loan: (i) the
Depositor must deliver to the Trustee (or its custodian) the Mortgage File
for the Qualifying Substitute Mortgage Loan containing the documents set
forth in Section 2.01(b) along with a written certification certifying as to
the delivery of such Mortgage File and containing the granting language set
forth in Section 2.01(a); and (ii) the Depositor will be deemed to have
made each of the representations and warranties set forth in Section
2.03(f). As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Trustee shall cause the Assignment
of Mortgage with respect to such Qualifying Substitute Mortgage Loan to be
recorded if required pursuant to the first sentence of Section 2.01(c).
(c) Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee
has received an Opinion of Counsel (at the expense of the party seeking to
make the substitution) that, under current law, such substitution will not
(A) affect adversely the status of any REMIC established hereunder as a
REMIC, or of the related "regular interests" as "regular interests" in any
such REMIC, or (B) cause any such REMIC to engage in a "prohibited
transaction" or prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of
------------
the Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be
construed as, a sale of such property and not grant of a security interest to
secure a loan. However, if such conveyance is deemed to be in respect of a
loan, it is intended that: (1) the rights and obligations of the parties
shall be established pursuant to the terms of this Agreement; (2) the
Depositor hereby grants to the Trustee for the benefit of the Holders of the
Certificates a first priority security interest in all of the Depositor's
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund and all proceeds of any and all property
constituting the Trust Fund to secure payment of the Certificates; and (3)
this Agreement shall constitute a security agreement under applicable law.
If such conveyance is deemed to be in respect of a loan and the Trust created
by this Agreement terminates prior to the satisfaction of the claims of any
Person holding any Certificate, the security interest created hereby shall
continue in full force and effect and the Trustee shall be deemed to be the
collateral agent for the benefit of such Person, and all proceeds shall be
distributed as herein provided.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
----------------
issuable in registered form only. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Amount, as applicable, specified in this paragraph. Each Class of Book-Entry
Certificates other than the Class 1-AX, Class 2-AX, Class 2-A5 Certificates
will be issued in the minimum denominations in Certificate Principal Amount
specified in the Preliminary Statement hereto and in integral multiples of
$1.00 in excess thereof. The Class 1-AX and Class 2-AX Certificates will be
issued in minimum Percentage Interests of 25% and 3%, respectively. The
Class 2-A5 Certificates will be issued in minimum denominations in Notional
Amount of $5,000,000 and in multiples of $1,000,000 in excess thereof. Each
Class of Non-Book Entry Certificates other than the Residual Certificates
will be issued in definitive, fully registered form in the minimum
denominations in Certificate Principal Amount specified in the Preliminary
Statement hereto and in integral multiples of $1.00 in excess thereof. Each
Residual Certificate will be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of
Certificates other than the Residual Certificates may be issued in any
denomination in excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Each Certificate shall,
on original issue, be authenticated by the Trustee upon the order of the
Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification
upon any Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication. At any
time and from time to time after the execution and delivery of this
Agreement, the Depositor may deliver Certificates executed by the Depositor
to the Trustee or the Authenticating Agent for authentication and the Trustee
or the Authenticating Agent shall authenticate and deliver such Certificates
as in this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
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hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may
appoint a bank or trust company to act as Certificate Registrar. A
registration book shall be maintained for the Certificates collectively. The
Certificate Registrar may resign or be discharged or removed and a new
successor may be appointed in accordance with the procedures and requirements
set forth in Sections 6.06 and 6.07 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor
Trustee. The Certificate Registrar may appoint, by a written instrument
delivered to the Holders, any bank or trust company to act as co-registrar
under such conditions as the Certificate Registrar may prescribe; provided,
--------
however, that the Certificate Registrar shall not be relieved of any of
- --------
its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
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Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Trustee or the Authenticating
Agent shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or the Placement Agent, an affiliate (as defined in Rule 144(a)(1) under
the 1933 Act) of the Depositor or the Placement Agent or (y) being made
to a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Act") by a transferor who has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the
Act by a transferor who furnishes to the Trustee a letter of the
transferee substantially in the form of Exhibit G hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate in the
form of a Definitive Certificate shall be made to any Person unless the
Trustee has received (A) a certificate substantially in the form of Exhibit H
hereto from such transferee or (B) an Opinion of Counsel satisfactory to the
Trustee and the Depositor to the effect that the purchase and holding of such
a Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Depositor to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Trustee will not require such
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certificate or opinion in the event that, as a result of a change of law or
otherwise, counsel satisfactory to the Trustee has rendered an opinion to
the effect that the purchase and holding of an ERISA-Restricted Certificate
by a Plan or a Person that is purchasing or holding such a Certificate with
the assets of a Plan will not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee or the Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for the initial issuance of the
ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a
sum sufficient to cover any tax or other governmental charge imposed in
connection therewith; provided, however, that the Certificate Registrar shall
have no obligation to require such payment or to determine whether or not any
such tax or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to a Disqualified Organization.
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization nor an agent or nominee
acting on behalf of a Disqualified Organization (any such transferee, a
"Permitted Transferee"), and the proposed transferor shall deliver to the
Trustee an affidavit in substantially the form attached hereto as Exhibit D-
2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the
proposed transferee of an Opinion of Counsel, addressed to the Depositor and
the Trustee satisfactory in form and substance to the Depositor, that such
proposed transferee or, if the proposed transferee is an agent or nominee,
the proposed beneficial owner, is not a Disqualified Organization.
Notwithstanding the registration in the Certificate Register of any transfer,
sale, or other disposition of a Residual Certificate to a Disqualified
Organization or an agent or nominee acting on behalf of a Disqualified
Organization, such registration shall be deemed to be of no legal force or
effect whatsoever and such Disqualified Organization (or such agent or
nominee) shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions on
such Residual Certificate. The Trustee shall not be under any liability to
any person for any registration or transfer of a Residual Certificate to a
Disqualified Organization or for the maturity of any payments due on such
Residual Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of the Agreement, so long
as the transfer was effected in accordance with this Section 3.03(f), unless
the Trustee shall have actual knowledge at the time of such transfer or the
time of such payment or other action that the transferee is a Disqualified
Organization (or an agent or nominee thereof). The Trustee shall be entitled
to recover from any Holder of a Residual Certificate that was a Disqualified
Organization (or an agent or nominee thereof) at the time it became a
Holder or any subsequent time it became a Disqualified Organization all
payments made on such Residual Certificate at and after either such times
(and all costs and expenses, including but not limited to attorneys' fees,
incurred in connection therewith). Any payment (not including any such
costs and expenses) so recovered by the Trustee shall be paid and delivered
to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of transfer of a Residual
Certificate that is in fact not permitted by this Section 3.03(f), for making
any payment due on such Certificate to the registered Holder thereof or for
taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered upon receipt of the
affidavit described in the preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's acceptance
thereof, shall be deemed for all purposes to have consented to the provisions
of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
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surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate
Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate
---------------------------
is mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then,
in the absence of notice to the Depositor and any Authenticating Agent
that such destroyed, lost or stolen Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute and the Trustee or
any Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a new Certificate of like tenor and Certificate Principal Amount. Upon
the issuance of any new Certificate under this Section 3.05, the Trustee
and Authenticating Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee or the Authenticating Agent) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.05 shall constitute complete
and indefeasible evidence of ownership in the applicable Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
---------------------
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered upon the books of the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Trustee, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation
----------------------
of definitive Certificates, upon the order of the Depositor, the Trustee
shall execute and shall authenticate and deliver temporary Certificates that
are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced
by their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Certificates of the
same Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint
---------------------------
a Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent (other than Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee that such
Paying Agent will hold all sums held by it for the payment to
Certificateholders in an Eligible Account in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Trustee to any such Paying
Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid
shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the
Paying Agent on or before the Business Day prior to each Distribution Date,
by wire transfer in immediately available funds, the funds to be distributed
on such Distribution Date. Any Paying Agent shall be either a bank or trust
company or otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of
-----------------------
Book-Entry Certificates, upon original issuance, shall be issued in the form
of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of the Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's
interest in the Book-Entry Certificates, except as provided in Section
3.09(c). Unless Definitive Certificates have been issued to Certificate
Owners of Book-Entry Certificates pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Depositor, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency for all purposes (including the making
of distributions on the Book-Entry Certificates) as the authorized
representatives of the Certificate Owners and the Clearing Agency shall
be responsible for crediting the amount of such distributions to the
accounts of such Persons entitled thereto, in accordance with the
Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions of
this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued
pursuant to Section 3.09(c), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i)(A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Certificate
Principal Amount of a Class of Book-Entry Certificates identified as such to
the Trustee by an Officer's Certificate from the Clearing Agency advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners of a
Class of Book-Entry Certificates, the Trustee shall notify or cause the
Certificate Registrar to notify the Clearing Agency to effect notification to
all Certificate Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Transferor nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable,
with respect to such Definitive Certificates and the Trustee shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. (Omitted).
Section 4.02. (Omitted).
Section 4.03. Reports to Certificateholders. (a) On each
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Distribution Date, the Trustee shall deliver or cause to be delivered by
first class mail to each Certificateholder a written report setting forth the
following information, by Mortgage Pool and Certificate Group, which
information the Trustee will determine on the basis of, with respect to the
Mortgage Loans, data which the Servicer will provide to the Trustee or its
designee prior to the Remittance Date:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (and in
respect of any Component), other than any Class of Notional Certificates
(or any Notional Component), allocable to principal on the Mortgage
Loans, including Liquidation Proceeds and Insurance Proceeds, stating
separately the amount attributable to scheduled principal payments and
unscheduled payments in the nature of principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other
than any Class of Principal Only Certificates) allocable to interest,
including any Accrual Amount added to the Class Certificate Principal
Amount of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holder of each
Class of Residual Certificates;
(iv) the aggregate amount of any Advances in respect of the
Mortgage Loans in each Mortgage Pool made by or on behalf of the
Servicer (or the Trustee) included in the amounts actually distributed
to the Certificateholders;
(v) the aggregate Scheduled Principal Balance of the Mortgage
Loans in each Mortgage Pool as of the close of business on the last day
of the related Due Period, after giving effect to payments allocated to
principal reported under clause (i) above;
(vi) the Class Certificate Principal Amount (or Aggregate Notional
Amount) of each Class of Certificates as of such Distribution Date after
giving effect to payments allocated to principal reported under clause
(i) above (and to the addition of any Accrual Amount in the case of any
Class of Accrual Certificates), separately identifying any reduction of
any of the foregoing Certificate Principal Amounts due to Realized
Losses:
(vii) any Realized Losses realized with respect to the Mortgage
Loans (x) in the related Prepayment Period and (y) in the aggregate
since the Cut-off Date, stating separately the amount of Special Hazard
Losses, Fraud Losses and Bankruptcy Losses and the aggregate amount of
such Realized Losses, and the remaining Special Hazard Loss Amount,
Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Servicing Fees paid during the Due Period to
which such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Trustee by the Servicer, (a)
remaining outstanding (b) delinquent one month, (c) delinquent two
months, (d) delinquent three or more months, and (e) as to which
foreclosure proceedings have been commenced as of the close of business
on the last Business Day of the calendar month immediately preceding the
month in which such Distribution Date occurs;
(x) the deemed principal balance of each REO Property as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance of such
Mortgage Loan and the number of such Mortgage Loans as of the close of
business on the Distribution Date in such preceding month;
(xii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage Loan;
(xiii) the aggregate of any Net Prepayment Interest Shortfalls
allocated to each Class of Certificates on such Distribution Date;
(xiv) the aggregate outstanding Interest Shortfalls, if any, for
each Class of Certificates, after giving effect to the distribution made
on such Distribution Date;
(xv) the Certificate Interest Rate applicable to such Distribution
Date with respect to each Class of Certificates;
(xvi) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient
available amounts in the Certificate Account and the amounts actually
distributed);
(xvii) any other "loan-level" information for any Mortgage Loans that
are delinquent three or more months and any REO Property held by the
Trust that is reported by the Servicer to the Trustee;
(xviii) The Purchase Price of any Mortgage Loan repurchased pursuant
to Section 2.05; and
(xix) any amounts in respect of Guaranteed Distributions paid under
the Class 2-A4 Certificate Insurance Policy.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall be expressed as a dollar amount per
$1,000 of original principal amount of Certificates.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, the
Trustee shall, to the extent that such information has been provided to the
Trustee by the Servicer, provide, or cause to be provided, to such
Certificateholder such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to
investment in the Certificates; provided, however, that the Trustee
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shall be entitled to be reimbursed by such Certificateholder for such
Trustee's actual expenses incurred in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
send to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable
such Holders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund.
(d) Not later than two days following each Distribution Date, the
Trustee shall deliver to the Persons designated by the Depositor, in the
format provided by the Servicer, "loan level" information with respect to the
Mortgage Loans as of the related Determination Date, to the extent that such
information has been provided in electronic format to the Trustee by the
Servicer.
Section 4.04. Certificate Account. (a) The Trustee shall establish
-------------------
and maintain in its name, as trustee, a special deposit trust account (the
"Certificate Account"), to be held in trust for the benefit of the
Certificateholders until disbursed pursuant to the terms of this Agreement.
The Certificate Account shall be an Eligible Account. If the existing
Certificate Account ceases to be an Eligible Account, the Trustee shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds on deposit in such existing Certificate
Account into such new Certificate Account. The Certificate Account shall
relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted
by the Servicer to the Trustee, all such amounts. The Trustee shall make
withdrawals from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay itself any investment income earned with respect to
funds in the Certificate Account invested in Eligible Investments as set
forth in subsection (c) below, and to make payment to itself and others
pursuant to any provision of this Agreement;
(iii) to make distributions to the Certificateholders and the
Class 2-A4 Certificate Insurer pursuant to Article V; and
(iv) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in the
Certificate Account in Eligible Investments (which may be obligations of the
Trustee). All such investments must mature no later than the next
Distribution Date, and shall not be sold or disposed of prior to their
maturity. All such Eligible Investments will be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be compensation for the Trustee and
shall be subject to its withdrawal on order from time to time. The amount of
any losses incurred in respect of any such investments shall be paid by the
Trustee for deposit in the Certificate Account out of its own funds
immediately as realized.
Section 4.05. Determination of LIBOR. (a) If the outstanding
----------------------
Certificates include any LIBOR Certificates, then on each LIBOR Determination
Date the Trustee shall determine LIBOR on the basis of the offered LIBOR
quotations of the Reference Banks as of 11:00 a.m. London time on such LIBOR
Determination Date as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Interest Accrual Period will be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/16%);
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the Reserve
Interest Rate. The "Reserve Interest Rate" will be either (A) the rate
per annum which the Trustee determines to be the arithmetic mean
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/16%) of the one-month Eurodollar lending rates that New
York City banks selected by the Trustee are quoting, on the relevant
LIBOR Determination Date, to the principal London offices of leading
banks in the London interbank market or (B) in the event that the
Trustee can determine no such arithmetic mean, the lowest one-month
Eurodollar lending rate that the New York City banks selected by the
Trustee are quoting on such LIBOR Determination Date to leading European
banks; and
(iii) If on any LIBOR Determination Date the Trustee is required but
is unable to determine the Reserve Interest Rate in the manner provided
in paragraph (ii) above, LIBOR for the next Interest Accrual Period will
be LIBOR as determined on the previous LIBOR Determination Date, or,
in the case of the first LIBOR Determination Date, the Initial LIBOR
Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the Certificate Interest Rates applicable to the
LIBOR Certificates for the relevant Interest Accrual Period, in the absence
of manifest error, will be final and binding. In all cases, the Trustee may
conclusively rely on quotations of LIBOR for the Reference Banks as such
quotations appear on the display designated "LIUS01M" on the Bloomberg
Financial Markets Commodities News.
(c) As used herein, "Reference Banks" shall mean four leading
banks engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR hereof) on the applicable
LIBOR Determination Date and (iii) which have been designated as such by the
Trustee and are able and willing to provide such quotations to the Trustee on
each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be
removed from the Bloomberg Screen LIUS01M Index Page or in any other way fail
to meet the qualifications of a Reference Bank, the Trustee shall use its
best efforts to designate alternate Reference Banks.
Section 4.06. The Class 2-A4 Reserve Fund. (a) The Trustee shall
---------------------------
establish and maintain the Class 2-A4 Reserve Fund, which shall be an
interest-bearing Eligible Account into which there shall have been deposited
the amount of $2,000 on the Closing Date. No additional funds will be
deposited in the Class 2-A4 Reserve Fund after the Closing Date. All funds
deposited in the Class 2-A4 Reserve Fund, and all interest earned thereon,
shall be held in trust for the benefit of the Holders of the Class 2-A4
Certificates until withdrawn in accordance with Section 5.02(d). The Class
2-A4 Reserve Fund shall be an "outside reserve fund" under the REMIC
Provisions. Lehman Brothers Inc. will be the beneficial owner of the Class
2-A4 Reserve Fund for federal income tax purposes. The Trustee, upon the
instructions of the Depositor, may invest, or cause to be invested, funds in
the Class 2-A4 Reserve Fund in Eligible Investments (which may be the
obligation of the Trustee).
(b) The Trustee shall from time to time make withdrawals from the Class
2-A4 Reserve Fund on behalf of the Trust Fund for the following purposes:
(i) to withdraw from the Class 2-A4 Reserve Fund an amount equal
to the lesser of (a) any Net Prepayment Interest Shortfalls for Pool 2
allocable to the Class 2-A4 Certificates for the related Distribution
Date, and (b) the amount on deposit in the Class 2-A4 Reserve Fund, and
remit such amount to the Certificate Account for distribution to the
Class 2-A4 Certificateholders on such Distribution Date; and
(ii) on the earlier of (a) the Distribution Date on which the Class
Certificate Principal Amount of the Class 2-A4 Certificates is reduced
to zero and (b) the termination of this Agreement pursuant to Section
7.01, to clear and terminate the Class 2-A4 Reserve Fund and to pay all
amounts on deposit therein to Lehman Brothers Inc. at the address
supplied by it to the Trustee for such purpose.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
-----------------------
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to
each Certificateholder's address as it appears on the Certificate Register of
the Certificate Registrar (which shall initially be the Trustee) or, upon
written request made to the Trustee at least three Business Days prior to the
related Distribution Date by any Certificateholder owning an aggregate
initial Certificate Principal Amount of at least $2,500,000, (or, (x), in the
case of the Class 2-A5 Certificates, an initial Notional Amount of not less
than $10,000,000, or (y) in the case of the Class 1-AX or class 2-AX
Certificates, a Percentage Interest of not less than 50%) by wire transfer in
immediately available funds to an account specified in the request and at the
expense of such Certificateholder; provided, however, that the final
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distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust
Office. Wire transfers will be made at the expense of the Holder requesting
such wire transfer by deducting a wire transfer fee from the related
distribution. Notwithstanding such final payment of principal of any of the
Certificates, the Residual Certificates will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificates and at such time such final
payment in retirement of any Residual Certificates will be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office
of the Trustee or at the office of the New York Presenting Agent. If any
payment required to be made on the Certificates is to be made on a day that
is not a Business Day, then such payment will be made on the next succeeding
Business Day. Payments to the Class 2-A4 Certificate Insurer shall be made
by wire transfer of immediately available funds.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On
------------------------------------------
each Distribution Date the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Available
Distribution Amount with respect to each Mortgage Pool, and shall distribute
such amount to the Class 2-A4 Certificate Insurer in payment of the Aggregate
Class 2-A4 Certificate Insurance Premium and to the Holders of record of each
Class of Certificates in the related Certificate Group in the following order
of priority:
(i) from the Available Distribution Amount for Pool 2, so long as no
Class 2-A4 Certificate Insurer Default exists, to the Class 2-A4 Certificate
Insurer, the Aggregate Class 2-A4 Certificate Insurance Premium;
(ii) from the Available Distribution Amount for the related Mortgage
Pool, to each Class of Senior Certificates in the related Certificate Group
(other than any Class of Principal Only Certificates), the Accrued
Certificate Interest thereon for such Distribution Date, as reduced by such
Class's pro rata share (determined on the basis of Accrued Certificate
Interest otherwise distributable thereon) of any Net Prepayment Interest
Shortfalls for the related Mortgage Pool for such Distribution Date;
provided, however, that any shortfall in available amounts shall be allocated
among such Classes in proportion to the amount of Accrued Certificate
Interest (as so reduced) that would otherwise be distributable thereon;
(iii) from the remaining Available Distribution Amount for the related
Mortgage Pool, to each Class of Senior Certificates in the related
Certificate Group (other than any Class of Principal Only Certificates), any
related Interest Shortfall for such Distribution Date; provided, however,
that any shortfall in available amounts shall be allocated among such Classes
in proportion to the Interest Shortfall for each such Class on such
Distribution Date;
(iv) from the remaining Available Distribution Amount for the related
Mortgage Pool, to the Senior Certificates of each Certificate Group, as
follows:
(A) to the Group 1 Senior Certificates (other than the Class
1-AX Certificates), the Senior Principal Distribution Amount for
Pool 1 for such Distribution Date, in reduction of the Class
Certificate Principal Amounts of the Group 1 Senior Certificates,
concurrently as follows:
(1) to the Class 1-A1 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to zero;
and
(2) to the Class 1-A2 Certificates, until the Class
Certificate Principal Amount thereof has been reduced to zero;
and
(B) to the Class 1-AP Certificates, the AP Distribution
Amount for Group 1 for such Distribution Date, until the Class
Certificate Principal Amount thereof has been reduced to zero.
(C) to the Group 2 Senior Certificates (other than the Class
2-A5 and Class 2-AX Certificates), the Senior Principal
Distribution Amount for Pool 2 for such Distribution Date, in
reduction of the Class Certificate Principal Amounts of the Group 2
Senior Certificates, concurrently as follows:
(1) to the Class 2-A9 Certificates, the Class 2-A9
Priority Amount for such Distribution Date, until the Class
Certificate Principal Amount thereof has been reduced to zero;
(2) to the Class 2-A1, Class 2-A2, Class 2-A3, Class 2-
A4, Class 2-A6, Class 2-A7, Class 2-A8, Class R-1, Class R-2
and Class 2-A9 Certificates, the remaining Senior Principal
Distribution Amount for Pool 2 for such Distribution Date less
the Class 2-A9 Priority Amount for such date, in the following
order of priority:
first, if such Distribution Date occurs on or after
the Distribution Date in December 2000 and provided that
on or prior to such date the Class Certificate Principal
Amount of the Class 2-A7 Certificates has not been
reduced to zero, to the Class 2-A4 Certificates, an
amount equal to $10,000, until the Class Certificate
Principal Amount thereof has been reduced to zero;
second, until the Class Certificate Principal Amount
of the Class 2-A1 Certificates has been reduced to zero,
concurrently, to the Class 2-A1, Class 2-A3 and Class 2-
A6 Certificates, 27.4468902673%; 64.4947027502% and
8.0584069825%, respectively;
third, to the Class 2-A2, Class 2-A3 and Class 2-A6
Certificates, pro rata in proportion to their respective
Class Certificate Principal Amounts, until the Class
Certificate Principal Amounts for each such Class has
been reduced to zero;
fourth, to the Class 2-A7 Certificates, until the
Class Certificate Principal Amount thereof has been
reduced to zero;
fifth, to the Class 2-A4 and Class 2-A8
Certificates, pro rata in pro rata in proportion to their
respective Class Certificate Principal Amounts, until the
Class Certificate Principal Amount for each such Class
has been reduced to zero;
sixth, to the Class R-1 and Class R-2 Certificates,
pro rata in proportion to their respective Class
Certificate Principal Amounts, until the Class
Certificate Principal Amount for each such Class has been
reduced to zero; and
seventh, to the Class 2-A9 Certificates, until the
Class Certificate Principal Amount thereof has been
reduced to zero; and
(3) to the Class 2-AP Certificates, the AP Principal
Distribution Amount for Group 2 for such Distribution Date,
until the Class Certificate Principal Amount thereof has been
reduced to zero.
(v) to the Class 1-AP and Class 2-AP Certificates, to the extent
of the remaining Available Distribution Amount for Group 1 or Group 2,
as applicable, as follows:
(A) to the Class 1-AP Certificates, from the Available
Distribution Amount for Pool 1 for such Distribution Date, the
Class 1-AP Deferred Amount for such Distribution Date, until the
Class Certificate Principal Amount thereof has been reduced to
zero; provided, that distributions pursuant to this priority
shall not exceed the Subordinate Principal Distribution Amount for
Group 1 for such Distribution Date, and such distributions shall
not reduce the Class Certificate Principal Amount of the Class 1-AP
Certificates;
(B) to the Class 2-AP Certificates, from the Available
Distribution Amount for Pool 2 for such Distribution Date, the
Class 2-AP Deferred Amount such Distribution Date, until the Class
Certificate Principal Amount thereof has been reduced to zero;
provided that distributions pursuant to this priority shall not
exceed the Subordinate Principal Distribution Amount for Group 2
for such Distribution Date, and such distributions shall not reduce
the Class Certificate Principal Amount of the Class 2-AP
Certificates;
(vi) from the remaining Available Distribution Amount for the
related Mortgage Pool, to the Subordinate Certificates and to Components
of each Certificate Group, as follows:
(A) to the Class 1-B1 and Class 2-B1 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Class's pro rata share (determined on the basis of
Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(B) to the Class 1-B1 and Class 2-B1 Certificates, any
Interest Shortfall for such Class on such Distribution Date;
(C) to the Class 1-B1 and Class 2-B1 Certificates, in
reduction of their respective Class Certificate Principal Amounts,
such Class's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for the related Certificate Group for
such Distribution Date, except as provided in Section 5.02(c),
until the Class Certificate Principal Amount of each such Class has
been reduced to zero;
(D) to each Component of the Class B2 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Component's pro rata share (determined on the basis
of Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(E) to each Component of the Class B2 Certificates, any
Interest Shortfall for such Component on such Distribution Date;
(F) to each Component of the Class B2 Certificates, in
reduction of the Component Principal Amount thereof, such
Component's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for the related Certificate Group for
such Distribution Date, except as provided in Section 5.02(c),
until the Component Principal Balance of each such Component has
been reduced to zero;
(G) to each Component of the Class B3 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Component's pro rata share (determined on the basis
of Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(H) to each Component of the Class B3 Certificates, any
Interest Shortfall for such Component on such Distribution Date;
(I) to each Component of the Class B3 Certificates, in
reduction of the Component Principal Amount thereof, such
Component's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for the related Certificate Group for
such Distribution Date, except as provided in Section 5.02(c),
until the Component Principal Balance of each such Component has
been reduced to zero;
(J) to each Component of the Class B4 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Component's pro rata share (determined on the basis
of Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(K) to each Component of the Class B4 Certificates, any
Interest Shortfall for such Component on such Distribution Date;
(L) to each Component of the Class B4 Certificates, in
reduction of the Component Principal Amount thereof, such
Component's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for the related Certificate Group for
such Distribution Date, except as provided in Section
5.02(c), until the Component Principal Balance of each such
Component has been reduced to zero;
(M) to each Component of the Class B5 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Component's pro rata share (determined on the basis
of Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(N) to each Component of the Class B5 Certificates, any
Interest Shortfall for such Component on such Distribution Date;
(O) to each Component of the Class B5 Certificates, in
reduction of the Component Principal Amount thereof, such
Component's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for the related Certificate Group for
such Distribution Date, except as provided in Section 5.02(c),
until the Component Principal Balance of each such Component has
been reduced to zero;
(P) to each Component of the Class B6 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Component's pro rata share (determined on the basis
of Accrued Certificate Interest otherwise distributable thereon) of
any Net Prepayment Interest Shortfalls for the related Mortgage
Pool for such Distribution Date;
(Q) to each Component of the Class B6 Certificates, any
Interest Shortfall for such Component on such Distribution Date;
and
(R) to each Component of the Class B6 Certificates, in
reduction of the Component Principal Amount thereof, such
Component's Subordinate Class Percentage of the Subordinate
Principal Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Component Principal Balance
of each such Component has been reduced to zero.
(b) If on any Distribution Date (i) the Class Certificate Principal
Amounts of the Class 1-B1 and Class 2-B1 Certificates and (ii) the Component
Principal Amounts of each Component in any Certificate Group have each been
reduced to zero, the Available Distribution Amount with respect to the
related Mortgage Pool remaining after distribution of interest to the related
Senior Certificates on such date shall be distributed among the related
Classes of Senior Certificates pro rata, on the basis of their respective
Class Certificate Principal Amounts immediately prior to such Distribution
Date, regardless of the priorities and amounts set forth in Sections
5.02(a)(iv)(A) and (B).
(c) (i) If on any Distribution Date the Credit Support Percentage for
the Class 1-B1 or Class 2-B1 Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Components of the Class B2, Class B3, Class
B4, Class B5 or Class B6 Certificates in the related Certificate Group on
such Distribution Date. (ii) If on any Distribution Date the Credit Support
Percentage for either Component of the Class B2 Certificates is less than the
Original Credit Support Percentage for such Component, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Components of
the Class B3, Class B4, Class B5 or Class B6 Certificates in the related
Certificate Group on such Distribution Date. (iii) If on any Distribution
Date the Credit Support Percentage for either Component of the Class B3
Certificates is less than the Original Credit Support Percentage for such
Component, then, notwithstanding anything to the contrary in Section 5.02(a),
no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount will be made in
respect of the Components of the Class B4, Class B5 or Class B6 Certificates
in the related Certificate Group on such Distribution Date. (iv) If on any
Distribution Date the Credit Support Percentage for either Component of the
Class B4 Certificates is less than the Original Credit Support Percentage for
such Component, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of
the definition of Subordinate Principal Distribution Amount will be made in
respect of the Components of the Class B5 or Class B6 Certificates in the
related Certificate Group on such Distribution Date. (v) If on any
Distribution Date the Credit Support Percentage for either Component of the
Class B5 Certificates is less than the Original Credit Support Percentage for
such Component, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of
the definition of Subordinate Principal Distribution Amount will be made in
respect of the Component of the Class B6 Certificates in the related
Certificate Group on such Distribution Date.
Any amount not distributed in respect of any Class of Subordinate
Certificates or any Component on any Distribution Date pursuant to the
immediately preceding paragraph will be allocated among the remaining
Classes or Components of the related Certificate Group in proportion to
their respective Class Certificate Principal Amounts or Component
Principal Amounts, as applicable.
(d) On each Distribution Date, the Trustee shall distribute the amount
withdrawn from the Class 2-A4 Reserve Fund with respect to such Distribution
Date pursuant to Section 4.06, to the extent of funds on deposit in the Class
2-A4 Reserve Fund, and shall apply such funds to distributions on the Class
2-A4 Certificates, as interest thereon, in the amount of any Net Prepayment
Interest Shortfalls for Pool 2 with respect to such Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R2 Certificate any amounts remaining in the Upper Trier
REMIC for such Distribution Date after application of all amounts described
in paragraph (a) of this Section 5.02. Any distribution pursuant to this
paragraph (e) should not reduce the Class Certificate Principal Amount of the
Class R2 Certificate.
Section 5.03. Allocation of Realized Losses. (a) On any
-----------------------------
Distribution Date, the applicable Non-AP Percentage of the principal portion
of each Realized Loss (other than any Excess Loss) in respect of a Mortgage
Loan in either Mortgage Pool shall be allocated in the following order of
priority:
first, to the related Component of the Class B6 Certificates,
until the Component Principal Amount thereof has been reduced to
zero;
second, to the related Component of the Class B5 Certificates,
until the Component Principal Amount thereof has been reduced to
zero;
third, to the related Component of the Class B4 Certificates,
until the Component Principal Amount thereof has been reduced to
zero;
fourth, to the related Component of the Class B3 Certificates,
until the Component Principal Amount thereof has been reduced to
zero;
fifth, to the related Component of the Class B2 Certificates,
until the Component Principal Amount thereof has been reduced to
zero;
sixth, to the Class Certificate Principal Amounts of the Class
1-B1 and Class 2-B1 Certificate, as applicable, until the Class
Certificate Principal Amount of each such Class has been reduced to
zero; and
seventh, to the Classes of Senior Certificates, of the related
Certificate Group pro rata, in accordance with their Class
Certificate Principal Amounts; provided, that any such loss
allocated to any Class of Accrual Certificates (and any Accrual
Component) shall be allocated (subject to Section 5.03(c)) on the
basis of the lesser of (x) the Class Certificate Principal Amount
(or Component Principal Amount) thereof immediately prior to the
applicable Distribution Date and (y) the Class Certificate
Principal Amount (or Component Principal Amount) thereof on the
Closing Date (as reduced by any Realized Losses previously
allocated thereto).
(b) With respect to any Distribution Date, the principal portion of any
Excess Loss in respect of the Mortgage Loan in either Mortgage Pool shall be
allocated among the Classes of Certificates and Components of the related
Certificate Group, pro rata, based on the respective Class Certificate
Principal Amounts or Component Principal Amount thereof; provided, that any
such loss allocated to any Class of Accrual Certificates (and any Accrual
Component) shall be allocated (subject to Section 5.03(c)) on the basis of
the lesser of (x) the Class Certificate Principal Amount (or Component
Principal Amount) thereof immediately prior to the applicable Distribution
Date and (y) the Class Certificate Principal Amount (or Component Principal
Amount) thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(c) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 5.03(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Amounts. In
addition, any Realized Losses allocated to any Class of Component
Certificates on a Distribution Date shall be allocated in reduction of the
Component Principal Amounts of the related Components (other than any
Notional Component) in proportion to their respective Component Principal
Amounts immediately prior to such Distribution Date. Any allocation of
Realized Losses pursuant to this paragraph (c) shall be accomplished by
reducing the Certificate Principal Amount (or, in the case of any Component,
the Component Principal Amount) of the related Certificates (or Components)
on the related Distribution Date in accordance with Section 5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution Date,
except that the aggregate amount of Realized Losses to be allocated to the
Class 1-AP and Class 2-AP Certificates on such Distribution Date will be
taken into account in determining distributions in respect of any Class 1-AP
Deferred Amount or Class 2-AP Deferred amount, as applicable for such date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the
Certificate Principal Amount or Component Principal Amount of the lowest
ranking Class or Component of outstanding Subordinate Certificates, which
reduction shall occur on such Distribution Date after giving effect to
distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates and, if applicable, to
one or more Components, each outstanding Class or Component to which any
portion of such Realized Loss had previously been allocated shall be entitled
to receive, on the Distribution Date in the month following the month in
which such recovery is received, its pro rata share (based on the Class
Certificate Principal Amount or Component Principal Amount thereof) of such
recovery, up to the amount of the portion of such Realized Loss previously
allocated to such Class. A Class of Certificates that is no longer
outstanding shall not be entitled to any share of such recovery. In the
event that the total amount of such recovery exceeds the amount of such
recovery allocated to the outstanding Classes in accordance with the
preceding provisions, each outstanding Class of Certificates or Component
shall be entitled to receive its pro rata share of the amount of such excess,
up to the amount of any unrecovered Realized Loss previously allocated to
such Class. Any such amounts not otherwise allocated to any Class of
Certificates pursuant to this subsection shall be treated as Principal
Prepayments for purposes of this Agreement.
Section 5.04. Trustee Advances. In the event that the Servicer
----------------
fails for any reason to make an Advance required to be made by it pursuant to
the Seller's Warranties and Servicing Agreement on or before the Remittance
Date, the Trustee shall, on or before the related Distribution Date, deposit
in the Certificate Account an amount equal to the excess of (a) Advances
required to be made by the Servicer that would have been deposited in such
Certificate Account over (b) the amount of any Advance made by the Servicer
with respect to such Distribution Date; provided, however, that the Trustee
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shall be required to make such Advance only if it is not prohibited by law
from doing so and it has determined that such Advance would be recoverable
from amounts to be received with respect to such Mortgage Loan, including
Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee shall
be entitled to be reimbursed from the Certificate Account for Advances made
by it pursuant to this Section 5.04 as if it were the Servicer.
Section 5.05. Distributions of Principal on Redemption Certificates.
-----------------------------------------------------
(a) Except as provided in subclauses (d) and (f) below, on each Distribution
Date on which distributions in reduction of the Class Certificate Principal
Amount of a Class of Redemption Certificates are made, such distributions
will be made in the following order of priority:
(i) any request by the personal representative of a Deceased
Holder or by a surviving tenant by the entirety, by a surviving joint
tenant or by a surviving tenant in common or other Person empowered to
act on behalf of such Deceased Holder upon his or her death, in an
amount up to but not exceeding $100,000 per request; and
(ii) any request by a Living Holder, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i) and
(ii) above up to a second $100,000 and $10,000 per request, respectively.
This sequence of priorities will be repeated for each request for principal
distributions made by the Certificate Owners of a Class of Redemption
Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Amounts of Redemption Certificates presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in the
order of their receipt by the Clearing Agency. Requests for distributions in
reduction of the Certificate Principal Amounts of Redemption Certificates
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of priority established by the random lot procedures of
the Clearing Agency after all requests with respect to such Class presented
in accordance with clause (i) have been honored. All requests for
distributions in reduction of the Class Certificate Principal Amount of a
Class of Redemption Certificates with respect to any Distribution Date shall
be made in accordance with Section 4.03(c) below and must be received by the
Clearing Agency and forwarded to, and received by, the Trustee no later than
the close of business on the related Record Date. Requests for distributions
that are received by the Clearing Agency and forwarded to the Trustee after
the related Record Date and requests, in either case, for distributions
timely received but not accepted with respect to any Distribution Date, will
be treated as requests for distributions in reduction of the Class
Certificate Principal Amount of the applicable Class of Redemption
Certificates on the next succeeding Distribution Date, and each succeeding
Distribution Date thereafter, until each such request is accepted
or is withdrawn as provided in Section 5.05(c). Such requests as are not so
withdrawn shall retain their order of priority without the need for any
further action on the part of the appropriate Certificate Owner of the
related Redemption Certificate, all in accordance with the procedures of the
Clearing Agency and the Trustee. Upon the transfer of beneficial ownership
of any Redemption Certificate, any distribution request previously submitted
with respect to such Certificate will be deemed to have been withdrawn only
upon the receipt by the Trustee of notification of such withdrawal using a
form required by the Clearing Agency.
Distributions in reduction of the Certificate Principal Amounts of
Redemption Certificates will be applied, in the aggregate, to such
Certificates in an amount equal to the portion of the Available Distribution
Amount distributable to the Redemption Certificates pursuant to Section
5.02(a)(iv), plus any amounts available for distribution from the applicable
Rounding Account pursuant to Section 5.05(e), provided that
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the aggregate distribution in reduction of the Class Certificate Principal
Amount of any Class of Redemption Certificates on any Distribution Date is
made in an integral multiple of $1,000.
(b) A "Deceased Holder" is a Certificate Owner of a Redemption
Certificate who was living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety,
surviving joint tenant or surviving tenant in common or other Person
empowered to act on behalf of such Certificate Owner upon his or her death,
causes to be furnished to the Trustee a certified copy of the death
certificate of such Certificate Owner and any additional evidence of death
required by and satisfactory to the Trustee and any tax waivers requested by
the Trustee. Redemption Certificates beneficially owned by tenants by the
entirety, joint tenants or tenants in common will be considered to be
beneficially owned by a single owner. The death of a tenant by the entirety,
joint tenant or tenant in common will be deemed to be the death of the
Certificate Owner, and any Redemption Certificates so beneficially owned will
be eligible for priority with respect to distributions in reduction of the
Class Certificate Principal Amount of such Class of Redemption Certificates,
subject to the limitations stated above. Redemption Certificates
beneficially owned by a trust will be considered to be beneficially owned by
each beneficiary of the trust to the extent of such beneficiary's beneficial
interest therein, but in no event will a trust's beneficiaries collectively
be deemed to be Certificate Owners of a number of Individual Redemption
Certificates greater than the number of Individual Redemption Certificates of
which such trust is the beneficial owner. The death of a beneficiary of a
trust will be deemed to be the death of a Certificate Owner of the Redemption
Certificates beneficially owned by the trust to the extent of such
beneficiary's beneficial interest in such trust. The death of an
individual who was a tenant by the entirety, joint tenant or
tenant in common in a tenancy that is the beneficiary of a trust will be
deemed to be the death of the beneficiary of the trust. The death of a person
who, during his or her lifetime, was entitled to substantially all of the
beneficial ownership interests in Redemption Certificates will be deemed to
be the death of the Certificate Owner of such Redemption Certificates
regardless of the registration of ownership of such Redemption Certificates,
if such beneficial interest can be established to the satisfaction of the
Trustee. Such beneficial interest will be deemed to exist in typical cases
of street name or nominee ownership, ownership by a trustee, ownership under
the Uniform Gifts to Minors Act and community property or other joint
ownership arrangements between a husband and wife. Beneficial interests shall
include the power to sell, transfer or otherwise dispose of a Redemption
Certificate and the right to receive the proceeds therefrom, as well as
interest and distributions in reduction of the Certificate Principal Amounts
of the Redemption Certificates payable with respect thereto. The Trustee
shall not be under any duty to determine independently the occurrence of the
death of any deceased Certificate Owner. The Trustee may rely entirely upon
documentation delivered to it pursuant to Section 5.05(a) in establishing the
eligibility of any Certificate Owner to receive the priority accorded
Deceased Holders in Section 5.05(a).
(c) Requests for distributions in reduction of the Certificate
Principal Amount of a Redemption Certificate must be made by delivering a
written request therefor to the Clearing Agency Participant or Financial
Intermediary that maintains the account evidencing the Certificate Owner's
interest in such Redemption Certificate. Such Clearing Agency Participant or
Financial Intermediary should in turn make the request of the Clearing Agency
(or, in the case of an Financial Intermediary, such Financial Intermediary
should notify the related Clearing Agency Participant of such request, which
Clearing Agency Participant should make the request of the Clearing Agency)
on a form required by the Clearing Agency and provided to the Clearing Agency
Participant. Upon receipt of such request, the Clearing Agency will date and
time stamp such request and forward such request to the Trustee. The
Clearing Agency may establish such procedures as it deems fair and equitable
to establish the order of receipt of requests for such distributions received
by it on the same day. The Trustee shall not be liable for any delay in
delivery of requests for distributions or withdrawals of such requests by the
Clearing Agency, a Clearing Agency Participant or any Financial Intermediary.
In the event that any requests for distributions in reduction of
the Certificate Principal Amount of Redemption Certificates are rejected by
the Trustee for failure to comply with the requirements of this Section 5.05,
the Trustee shall return such requests to the appropriate Clearing Agency
Participant with a copy to the Clearing Agency with an explanation as to the
reason for such rejection.
The Trustee shall maintain a list of those Clearing Agency
Participants representing the Certificate Owners of Redemption Certificates
that have submitted requests for distributions in reduction of the
Certificate Principal Amount of such Redemption Certificates, together with
the order of receipt and the amounts of such requests. The Trustee shall
notify the Clearing Agency and the appropriate Clearing Agency Participants
as to which requests should be honored on each Distribution Date. Requests
shall be honored by the Clearing Agency in accordance with the procedures,
and subject to the priorities and limitations, described in this Section
5.05. The exact procedures to be followed by the Trustee and the Clearing
Agency for purposes of determining such priorities and limitations shall be
those established from time to time by the Trustee or the Clearing Agency, as
the case may be. The decisions of the Trustee and the Clearing Agency
concerning such matters shall be final and binding on all affected Persons.
Payments in reduction of the Certificate Principal Amounts of
Redemption Certificates shall be made on the applicable Distribution Date and
the Certificate Balances as to which such payments are made shall cease to
bear interest after the last day of the month preceding the month in which
such Distribution Date occurs.
Any Certificate Owner of a Redemption Certificate that has
requested a distribution may withdraw its request by so notifying in writing
the Clearing Agency Participant or Financial Intermediary that maintains such
Certificate Owner's account. In the event that such account is maintained by
a Financial Intermediary, such Financial Intermediary should notify the
related Clearing Agency Participant which in turn should forward the
withdrawal of such request, on a form required by the Clearing Agency, to the
Trustee. If such notice of withdrawal of a request for distribution has not
been received by the Clearing Agency and forwarded to the Trustee on or
before the Record Date for the next Distribution Date, the previously made
request for distribution will be irrevocable with respect to the making of
distributions in reduction of the Certificate Principal Amount of such
Redemption Certificate on such Distribution Date.
(d) To the extent, if any, that amounts available for distribution in
reduction of the Class Certificate Principal Amount of any Class of
Redemption Certificates on a Distribution Date exceed the dollar amount of
requests for distributions with respect to such Class that have been received
by the related Record Date, as provided in Section 5.05(c) above,
distributions in reduction of the Class Certificate Principal Amount of such
Class of Redemption Certificates will be made by mandatory distributions in
reduction thereof. The Trustee shall notify the Clearing Agency of the
aggregate amount of the mandatory distribution in reduction of the Class
Certificate Principal Amount of such Class of Redemption Certificates to be
made on the next Distribution Date. The Clearing Agency shall then allocate
such aggregate amount among its Clearing Agency Participants on a random lot
basis. Each Clearing Agency Participant and, in turn, each Financial
Intermediary, will then select, in accordance with its own procedures,
Individual Redemption Certificates from among those held in its accounts to
receive mandatory distributions in reduction of the Class Certificate
Principal Amount of such Class of Redemption Certificates, such that the
total amount so selected is equal to the aggregate amount of such mandatory
distributions allocated to such Clearing Agency Participant by the Clearing
Agency and to such Financial Intermediary by its related Clearing Agency
Participant, as the case may be. Clearing Agency Participants and Financial
Intermediaries that hold Redemption Certificates selected for mandatory
distributions in reduction of the Class Certificate Principal Amount thereof
should provide notice of such mandatory distributions to the affected
Certificate Owners.
(e) On the Closing Date, a Rounding Account shall be established with
the Trustee for each Class of Redemption Certificates, and Lehman Brothers
Inc. shall cause to be initially deposited the sum of $999.99 in each
Rounding Account. On each Distribution Date on which a distribution is made
in reduction of the Class Certificate Principal Amount of a Class of
Redemption Certificates, funds on deposit in the applicable Rounding Account
shall be, to the extent needed, withdrawn by the Trustee and applied to round
upward to an integral multiple of $1,000 the aggregate distribution in
reduction of the Class Certificate Principal Amount to be made on such
Redemption Certificates. Rounding of such distribution on such Redemption
Certificates shall be accomplished, on the first such Distribution Date, by
withdrawing from the applicable Rounding Account the amount of funds, if any,
needed to round the amount otherwise available for such distribution in
reduction of the Class Certificate Principal Amount of such Class of
Redemption Certificates upward to the next integral multiple of $1,000. On
each succeeding Distribution Date on which distributions in reduction of the
Class Certificate Principal Amount of such Class of Redemption Certificates
are to be made, the aggregate amount of such distributions allocable to such
Class of Redemption Certificates shall be applied first to repay any funds
withdrawn from the applicable Rounding Account and not previously repaid, and
then the remainder of such allocable amount, if any, shall be similarly
rounded upward and applied as distributions in reduction of the Class
Certificate Principal Amount of such Class of Redemption Certificates; this
process shall continue on succeeding Distribution Dates until the Class
Certificate Principal Amount of such Class of Redemption Certificates has
been reduced to zero. Each Rounding Account shall be an "outside reserve
fund" under the REMIC Provisions that is beneficially owned for all federal
income tax purposes by Lehman Brothers Inc. Lehman Brothers Inc. will report
all income, gain, deduction or loss with respect thereto. The Trustee, upon
the instructions of the Depositor, may invest, or cause to be invested funds
in the Class 2-4A Reserve Fund in Eligible Investments (which may be
obligations of the Trustee). The Trustee shall distribute interest earnings,
if any, on amounts held in any Rounding Account as such interest is earned
pursuant to written instructions from Lehman Brothers Inc. to the Trustee.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which distributions in reduction of the Class Certificate Principal
Amount of any Class of Redemption Certificates will reduce the Class
Certificate Principal Amount thereof to zero or in the event that
distributions in reduction of the Class Certificate Principal Amount of such
Class of Redemption Certificates are made in accordance with the provisions
set forth in Section 5.05(f), an amount equal to the difference between
$999.99 and the sum then held in the applicable Rounding Account shall be
paid from the Available Distribution Amount for such Distribution Date to
such Rounding Account. Any funds then on deposit in such Rounding Account
shall be distributed to Lehman Brothers Inc.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the
Credit Support Depletion Date, all distributions in reduction of the Class
Certificate Principal Amount of any Class of Redemption Certificates will be
made among the Holders of such Class of Certificates, pro rata, based on
their Certificate Principal Amounts, and will not be made in integral
multiples of $1,000 or pursuant to requested distributions or mandatory
distributions by random lot.
(g) In the event that Definitive Certificates representing any Class of
Redemption Certificates are issued pursuant to Section 3.09(c), all requests
for distributions or withdrawals of such requests relating to such Class must
be submitted to the Trustee, and the Trustee shall perform the functions
described in Section 5.05(a) through (c) using its own procedures, which
procedures shall, to the extent practicable, be consistent with the
procedures described in Section 5.05(a) through (c).
Section 5.06. The Class 2-A4 Certificate Insurance Policy. (a) If,
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on the second Business Day before any Distribution Date, the Trustee
Determines that the amount on deposit in the Certificate Account
distributable to the Class 2-A4 Certificateholders pursuant to Section 5.02,
together with any amounts that may be distributable to the Class 2-A4
Certificateholders from the Class 2-A4 Reserve Fund, will be insufficient to
pay the Guaranteed Distributions on such Distribution Date, the Trustee shall
determine the amount of any such deficiency and shall give Notice of Claim to
the Class 2-A4 Certificate Insurer and the appropriate Fiscal Agent (in the
Class 2-A4 Certificate Insurance Policy), if any, by telephone or telecopy of
the amount of such deficiency, confirmed in writing to the Class 2-A4
Certificate Insurer, such Notice of Claim to be substantially in the form of
Exhibit A attached to the Class 2-A4 Certificate Insurance Policy and
delivered by 12:00 noon, New York City time on such second Business Day. The
Trustee's responsibility for delivering the Notice of Claim to the Class 2-A4
Certificate Insurer, as provided in the preceding sentence, is limited to the
availability, timeliness and accuracy of the information provided by the
Servicer.
(b) In the event the Trustee receives a certified copy of an order of
the appropriate court that any scheduled payment of principal or interest on
a Class 2-A4 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trustee shall (i) promptly
notify the Class 2-A4 Certificate Insurer, as appropriate, and the Fiscal
Agent, if any, and (ii) comply with the provisions of the Class 2-A4
Certificate Insurance Policy to obtain payment by the Class 2-A4 Certificate
Insurer of such voided scheduled payment. In addition, the Trustee shall
mail notice to all Holders of the Class 2-A4 Certificates so affected that,
in the event that any such Holder's scheduled payment is so recovered, such
Holder will be entitled to payment pursuant to the terms of the Class 2-A4
Certificate Insurance Policy, a copy of which shall be made available to such
Holders by the Trustee. The Trustee shall furnish to the Class 2-A4
Certificate Insurer and the appropriate Fiscal Agent, if any, its records
listing the payments on the affected Class 2-A4 Certificates, if any, that
have been made by the Trustee and subsequently recovered from the affected
Holders, and the dates on which such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish a separate special purpose trust account in the
name of the Trustee for the benefit of Holders of the Class 2-A4 Certificates
(the "Class 2-A4 Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Class 2-A4 Policy
Payments Account shall be an Eligible Account. The Trustee shall deposit any
amount paid under the Class 2-A4 Policy into the Class 2-A4 Policy Payments
Account and distribute such amount only for the purposes of making payments
to Holders of the Class 2-A4 Certificates in respect of the Guaranteed
Distributions (or other amounts payable pursuant to paragraph (b) above on
the Class 2-A4 Certificates by the Class 2-A4 Certificate Insurer pursuant to
the Class 2-A4 Certificate Insurance Policy) for which the related claim was
made under the Policy. Such amounts shall be allocated by the Trustee to
Holders of Class 2-A4 Certificates affected by such shortfalls in the same
manner as principal and interest distributions are to be allocated with
respect to such Certificates pursuant to Section 5.02. It shall not be
necessary for such payments to be made by checks or wire transfers separate
from the checks or wire transfers used to make regular payments hereunder
with funds withdrawn from the Certificate Account. However, any payments
made on the Class 2-A4 Certificates from funds in the Class 2-A4 Policy
Payments Account shall be noted as provided in subsection (e) below.
Funds held in the Class 2-A4 Policy Payments Account shall not be invested
by the Trustee.
(d) Any funds received from the Class 2-A4 Certificate Insurer for
deposit into the Class 2-A4 Policy Payments Account pursuant to the Class 2-
A4 Certificate Insurance Policy in respect of a Distribution Date or
otherwise as a result of any claim under such Class 2-A4 Certificate
Insurance Policy shall be applied by the Trustee directly to the payment in
full (i) of the Guaranteed Distributions due on such Distribution Date on the
Class 2-A4 Certificates, or (ii) of other amounts to which payments under the
Class 2-A4 Certificate Insurance Policy are to be applied. Funds received by
the Trustee as a result of any claim under the Class 2-A4 Certificate
Insurance Policy shall be used solely for payment to the Holders of the Class
2-A4 Certificates, respectively, and may not be applied for any other
purpose, including, without limitation, satisfaction of any costs, expenses
or liabilities of the Trustee or the Trust Fund. Any funds remaining in the
Class 2-A4 Policy Payments Account on the first Business Day after each
Distribution Date shall be remitted promptly to the Class 2-A4 Certificate
Insurer pursuant to the written instruction of the Class 2-A4 Certificate
Insurer.
(e) The Trustee shall keep complete and accurate records in respect of
(i) all funds remitted to it by the Class 2-A4 Certificate Insurer and
deposited into the Class 2-A4 Policy Payments Account and (ii) the allocation
of such funds to (A) payments of interest on and principal in respect of any
Class 2-A4 Certificates, (B) Realized Losses allocated to the Class 2-A4
Certificates and (C) Net Prepayment Interest Shortfalls allocated to the
Class 2-A4 Certificates. The Class 2-A4 Certificate Insurer shall have the
right to inspect such records at reasonable times during normal business
hours upon three Business Days' prior notice to the Trustee.
(f) The Trustee acknowledges, and each Holder of a Class 2-A4
Certificate by its acceptance of such Class 2-A4 Certificate agrees, that,
without the need for any further action on the part of the Class 2-A4
Certificate Insurer or the Trustee, to the extent the Class 2-A4 Certificate
Insurer makes payments, directly or indirectly, on account of principal of or
interest on any Class 2-A4 Certificates, the Class 2-A4 Certificate Insurer
will be fully subrogated to the rights of the Holders of such Class 2-A4
Certificates to receive such principal and interest from the Trust Fund. The
Class 2-A4 Certificateholders, by acceptance of the Class 2-A4 Certificates,
assign their rights as Holders of the Class 2-A4 Certificates to the extent
of the Class 2-A4 Certificate Insurer's interest with respect to amounts paid
under the Class 2-A4 Policy. Anything herein to the contrary
notwithstanding, solely for purposes of determining the Class 2-A4
Certificate Insurer's rights as subrogee for payments distributable pursuant
to Section 5.02, any payment with respect to distributions to the Class 2-A4
Certificates that is made with funds received pursuant to the terms of the
Class 2-A4 Certificate Insurance Policy shall not be considered payment of
the Class 2-A4 Certificates from the Trust Fund and shall not result in the
distribution or the provision for the distribution in reduction of the Class
Certificate Principal Amount of the Class 2-A4 Certificates within the
meaning of Article V.
(g) Upon its becoming aware of the occurrence of an Event of Default,
the Trustee shall promptly notify the Class 2-A4 Certificate Insurer of such
Event of Default.
(h) The Trustee shall promptly notify the Class 2-A4 Certificate
Insurer of either of the following as to which it has actual knowledge: (A)
the commencement of any proceeding by or against the Depositor commenced
under the United States bankruptcy code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an "Insolvency
Proceeding") and (B) the making of any claim in connection with any
Insolvency Proceeding seeking the avoidance as a preferential transfer (a
"Preference Claim") of any distribution made with respect to the Class 2-A4
Certificates. Each Holder of a Class 2-A4 Certificate, by its purchase of
Class 2-A4 Certificates, and the Trustee hereby agree that the Class 2-A4
Certificate Insurer (so long as no the Class 2-A4 Certificate Insurer Default
exists) may at any time during the continuation of any proceeding relating to
a Preference Claim direct all matters relating to such Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to any Preference Claim and (ii) the posting of any surety,
supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, the Class 2-A4 Certificate Insurer shall
be subrogated to the rights of the Trustee and each Holder of a Class 2-A4
Certificate in the conduct of any Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference
Claim.
(i) The Trustee shall surrender the Class 2-A4 Certificate Insurance
Policy to the Class 2-A4 Certificate Insurer for cancellation upon the
expiration of the term of the Class 2-A4 Certificate Insurance Policy as
provided therein.
(j) With respect to this Section 5.06, (i) the terms "Receipt" and
"Received" shall mean actual delivery to the Class 2-A4 Certificate Insurer
and the Class 2-A4 Certificate Insurer's Fiscal Agent, if any, prior to 12:00
noon, New York City time, on a Business Day; delivery either on a day that is
not a Business Day or after 12:00 noon, New York City time, shall be deemed
to be Receipt on the next succeeding Business Day. If any notice or
certificate given under the Class 2-A4 Certificate Insurance Policy by the
Trustee is not in proper form or is not properly completed, executed or
delivered, it shall be deemed not to have been Received. The Class 2-A4
Certificate Insurer's or its Fiscal Agent, if any, shall promptly so advise
the Trustee and the Trustee may submit an amended notice and (ii) "Business
Day" means any day other than (A) a Saturday or Sunday or (B) a day on which
banking institutions in the City of New York, New York are authorized or
obligated by law or executive order to be closed.
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during
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the continuance of an Event of Default, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee provided for in this Agreement shall not be
construed as a duty of the Trustee. If an Event of Default has occurred and
has not otherwise been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and use the same degree
of care and skill in their exercise as a prudent Person would exercise or use
under the circumstances in the conduct of such Person's own affairs unless
the Trustee is acting as Servicer, in which case it shall use the same degree
of care and skill as the Servicer under the Seller's Warranties and Servicing
Agreement.
The Trustee may appoint a custodian to maintain custody of the Mortgage
Loans and to perform certain administrative functions on behalf of the
Trustee, to the extent provided herein. The reasonable compensation of any
such custodian shall be paid by the Trustee, and shall be reimbursable to the
Trustee from the Certificate Account.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order
or other instrument furnished by the Servicer, to the Trustee
pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
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(i) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates as provided in
Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default (other than resulting
from a failure by the Servicer (i) to remit funds (or to make Servicing
Advances) or (ii) to furnish information to the Trustee when required to
do so by the Seller's Warranties and Servicing Agreement) unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Holders of the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; and
(iv) The Trustee shall not be responsible for any act or omission
of the Servicer.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as
a consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Servicer
upon receipt any such complaint, claim, demand, notice or other document (i)
which is delivered to the Corporate Trust Office of the Trustee, (ii) of
which a Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(f) As assignee of the rights and delegee of the obligations of the
Depositor under the Mortgage Loan Sale and Assignment Agreement and the
Seller's Warranties and Servicing Agreement, the Trustee shall have the
rights and obligations of the "Purchaser" under the Seller's Warranties and
Servicing Agreement. Notwithstanding anything in the Seller's Warranties and
Servicing Agreement, the Trustee shall:
(i) under Section 4.02 of the Seller's Warranties and Servicing
Agreement, in any case in a Mortgaged Property has been determined to be
contaminated by hazardous or toxic substances, direct the Servicer not
to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure;
(ii) not consent under Section 9.04 of the Seller's Warranties and
Servicing Agreement to any transfer or delegation by the Servicer of its
rights or duties under the Seller's Warranties and Servicing Agreement
to other than a subservicer unless the Servicer complies with the
provisions of items (i) through (iv) of the last paragraph of such
Section;
(iii) not terminate the rights of the Servicer under the Seller's
Warranties and Servicing Agreement without cause under Section 11.02 of
the Seller's Warranties and Servicing Agreement; and
(iv) not agree to any amendment of the Seller's Warranties and
Servicing Agreement except pursuant to the same limitations and
requirements as are applicable to amendments of this Agreement pursuant
to Section 11.03 hereof.
Section 6.02. Certain Matters Affecting the Trustee. Except as
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otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(iii) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of
at least a majority in Class Certificate Principal Amount (or Aggregate
Notional Amount) of each Class of Certificates; provided, however, that,
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if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity against
such expense or liability or payment of such estimated expenses as a
condition to proceeding. The reasonable expense thereof shall be paid
by the Holders requesting such investigation; and
(v) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys, which agents or attorneys shall have any or all of the
rights, powers, duties and obligations of the Trustee conferred on them
by such appointment provided that the Trustee shall continue to be
responsible for its duties and obligations hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee
-----------------------------------
makes no representations as to the validity or sufficiency of this Agreement
or of the Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed
and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of
creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The Trustee shall not be accountable for the use or application by the
Depositor of funds paid to the Depositor in consideration of the assignment
of the Mortgage Loans to the Trust Fund by the Depositor or for the use or
application of any funds deposited into the Certificate Account or any other
fund or account maintained with respect to the Certificates.
Section 6.04. Trustee May Own Certificates. The Trustee and any
----------------------------
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and
trust with the other parties hereto with the same rights it would have if it
were not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee
------------------------------------
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section,
the combined capital and surplus of such corporation or national banking
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee
----------------------------------
may at any time resign and be discharged from the trust hereby created by
giving written notice thereof to the Depositor. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee by
written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, and one copy to the successor trustee. If no successor
trustee shall have been so appointed and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating (in the
case of the Class 2-A4 Certificates, determined without regard to the Class
2-A4 Certificate Insurance Policy), then the Depositor may remove the Trustee
and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee.
(c) The Holders of more than 50% of the Class Certificate Principal
Amount (or Aggregate Notional Amount) of each Class of Certificates may at
any time upon 30 days' written notice to the Trustee and to the Depositor
remove the Trustee by such written instrument, signed by such Holders or
their attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee so removed; the
Depositor shall thereupon use its best efforts to appoint a mutually
acceptable successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee
-----------------
appointed as provided in Section 6.06 shall execute, acknowledge and deliver
to the Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and
documents and statements related to each Mortgage Files held by it hereunder,
and shall duly assign, transfer, deliver and pay over to the successor
trustee the entire Trust Fund, together with all necessary instruments of
transfer and assignment or other documents properly executed necessary to
effect such transfer and such of the record or copies thereof maintained by
the predecessor trustee in the administration hereof as may be requested by
the successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the predecessor trustee
shall execute and deliver such other instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in
the successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall
be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register and to the Rating Agencies. The expenses of such
mailing shall be borne by the Depositor.
Section 6.08. Merger or Consolidation of Trustee. Any Person into
----------------------------------
which the Trustee may be merged or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided
that such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
----------------------------------------------
Custodian. (a) Notwithstanding any other provisions hereof, at any time,
- ---------
the Trustee, the Depositor or the Certificateholders evidencing more than 50%
of the Class Certificate Principal Amount (or Aggregate Notional Amount) of
each Class of Certificates shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee has its principal place of
business where such separate trustee or co-trustee is necessary or advisable
under the laws of any state in which a property securing a Mortgage Loan is
located or for the purpose of otherwise conforming to any legal requirement,
restriction or condition in any state in which a property securing a Mortgage
Loan is located or in any state in which any portion of the Trust Fund is
located. The separate Trustees, co-trustees, or custodians so appointed
shall be trustees or custodians for the benefit of all the Certificateholders
and shall have such powers, rights and remedies as shall be specified in
the instrument of appointment; provided, however, that no such appointment
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shall, or shall be deemed to, constitute the appointee an agent of the
Trustee. The obligation of the Trustee to make Advances pursuant to Section
5.04 and 6.14 hereof shall not be affected or assigned by the appointment of
a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or the Certificateholders evidencing more than 50%
of the Aggregate Voting Interests of the Certificates may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal
does not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 6.05 hereunder and no notice to Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint
---------------------
one or more Authenticating Agents which shall be authorized to act on behalf
of the Trustee in authenticating Certificates. Wherever reference is made in
this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or of any state, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee. Any Authenticating
Agent shall be entitled to reasonable compensation for its services and, if
paid by the Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its
--------------------------
directors, officers, employees and agents shall be entitled to
indemnification from the Trust Fund, to the extent that indemnification is
not provided by the Servicer pursuant to the Seller's Warranties and
Servicing Agreement, for any loss, liability or expense incurred in
connection with any legal proceeding and incurred without negligence or
willful misconduct on their part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder, including the
costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder,
provided that:
(i) to the extent that the indemnification provisions of the
Seller's Warranties and Servicing Agreement indemnify the Trustee, as
assignee of the "Purchaser" thereunder, for such loss, liability or
expense, the Trustee has first made reasonable efforts to enforce any
applicable provisions in the Seller's Warranties and Servicing Agreement
for indemnification or reimbursement of the Trustee (as "Purchaser") by
the Servicer (it being understood and agreed that "reasonable efforts"
shall, without limitation, (A) not require that the Trustee have
brought suit against the Servicer to enforce such indemnification
provisions before making a claim against the assets of the Trust Fund
and (B) have been satisfied if the Trustee shall have made demand on
the Servicer for such indemnification, but the Servicer is unable to
satisfy such demand due to its insolvency);
(ii) with respect to any such claim, the Trustee shall have given
the Depositor and the Holders written notice thereof promptly after the
Trustee shall have knowledge thereof;
(iii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iv) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Depositor,
which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Fees and Expenses of Trustee. The Trustee shall be
----------------------------
entitled to receive, and is authorized to pay to itself, the amount of income
or gain earned from the investment of funds in the Certificate Account. The
Trustee shall be entitled to reimbursement of reasonable disbursements and
expenses made or incurred by the Trustee in accordance with the provisions of
this Agreement, but not for (i) any such expense, disbursement or advance as
may arise from the Trustee's negligence or willful misconduct or (ii) any
amount expressly required under this Agreement to be paid by the Trustee from
its own funds.
Section 6.13. Collection of Monies. Except as otherwise expressly
--------------------
provided in this Agreement, the Trustee may demand payment or delivery of,
and shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and
shall distribute it as provided in this Agreement. If the Trustee shall not
have timely received amounts to be remitted with respect to the Mortgage
Loans from the Servicer, the Trustee shall request the Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
Section 6.14. Trustee To Act; Appointment of Successor. (a) If an
----------------------------------------
Event of Default shall occur, then, in each and every case, subject to
applicable law, so long as any such Event of Default shall not have been
remedied within any period of time prescribed by the Seller's Warranties and
Servicing Agreement, the Trustee by notice in writing to the Servicer may,
and shall, if so directed by Certificateholders evidencing more than 50% of
the Class Certificate Principal Amount (or Aggregate Notional Amount) of each
Class of Certificates, terminate all of the rights and obligations of the
Servicer under the Seller's Warranties and Servicing Agreement and in and to
the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Servicer of such written notice, all authority and power of the Servicer, and
only in its capacity as Servicer under the Seller's Warranties and Servicing
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in the Trustee pursuant to and under the terms of the
Seller's Warranties and Servicing Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise.
If any Event of Default shall occur, the Trustee shall promptly notify
the Rating Agencies and the Class 2-A4 Certificate Insurer of the nature and
extent of such Event of Default. The Trustee shall immediately give written
notice to the Servicer upon such Servicer's failure to remit funds on the
Remittance Date.
(b) On and after the time the Servicer receives a notice of termination
from the Trustee pursuant to Section 6.14(a) or the Trustee receives the
resignation of the Servicer evidenced by an Opinion of Counsel pursuant to
the applicable provision of the Seller's Warranties and Servicing Agreement,
the Trustee, unless another servicer shall have been appointed, shall be the
successor in all respects to the Servicer in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Servicer under the Seller's Warranties and Servicing Agreement, including the
obligation to make Advances; provided, however, that any failure to perform
such duties or responsibilities caused by the Servicer's failure to provide
information required by the Seller's Warranties and Servicing Agreement shall
not be considered a default by the Trustee hereunder. In addition, the
Trustee shall have no responsibility for any act or omission of the Servicer
prior to the issuance of any notice of termination. In the Trustee's
capacity as such successor, the Trustee shall have the same
limitations on liability herein granted to the Servicer. As compensation
therefor, the Trustee shall be entitled to receive all compensation payable
to the Servicer under the Seller's Warranties and Servicing Agreement,
including the applicable portion of the related Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution servicer, master servicer,
servicer or mortgage servicing institution having a net worth of not less
than $15,000,000 and meeting such other standards for a successor servicer as
are set forth in the Seller's Warranties and Servicing Agreement, as the
successor to such Servicer in the assumption of all of the responsibilities,
duties or liabilities of a servicer, like the Servicer. Any entity
designated by the Trustee as a successor Servicer may be an Affiliate of the
Trustee; provided, however, that, unless such Affiliate meets the net worth
-------- -------
requirements and other standards set forth herein for a successor servicer,
the Trustee, in its individual capacity shall agree, at the time of such
designation, to be and remain liable to the Trust Fund for such Affiliate's
actions and omissions in performing its duties hereunder. In connection
with such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as
it and such successor shall agree; provided, however, that no such
-------- -------
compensation shall be in excess of that permitted to the Servicer. The
Trustee and such successor shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession and may
make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Servicer shall cooperate
with the Trustee and any successor servicer in effecting the termination of
the Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the servicing functions
and providing the Trustee and successor servicer, as applicable, all
documents and records in electronic or other form reasonably requested
by it to enable it to assume the Servicer's functions hereunder and the
transfer to the Trustee or such successor servicer, as applicable, all
amounts which shall at the time be or should have been deposited by the
Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received with
respect to the Mortgage Loans. Neither the Trustee nor any other successor
servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Servicer to deliver, or
any delay in delivering, cash, documents or records to it, (ii) to cooperate
as required by the Seller's Warranties and Servicing Agreement, (iii) to
deliver the Mortgage Loan data to the Trustee as required
by the Seller's Warranties and Servicing Agreement or (iv) restrictions
imposed by any regulatory authority having jurisdiction over the Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
----------------------------------------------------
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to
protect the interests, and enforce the rights and remedies, of the
Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative
and in addition to any other remedy, and no delay or omission to exercise any
right or remedy shall impair any such right or remedy or shall be deemed to
be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate
------------------
Voting Interests of Certificateholders may waive any default or Event of
Default by the Servicer in the performance of its obligations under the
Seller's Warranties and Servicing Agreement except that a default in the
making of any required deposit to the Certificate Account that would result
in a failure of the Trustee to make any required payment of principal of or
interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default,
such default shall cease to exist, any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement,
and, to the extent that such default related to the Servicer's obligation to
make any Advance, the Trustee shall not be obligated to make such Advance,
notwithstanding anything to the contrary in this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the
-----------------------
Servicer or appointment of a successor Servicer, in each case as provided
herein, the Trustee shall promptly mail notice thereof by first class mail to
the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to Certificateholders, unless such Event of Default shall
have been cured or waived prior to the issuance of such notice and within
such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
------------------------------------------------------
During Event of Default. Subject to the provisions of Section 8.01
- -----------------------
hereof, during the continuance of any Event of Default, Holders of
Certificates evidencing not less than 25% of the Class Certificate Principal
Amount (or Aggregate Notional Amount) of each Class of Certificates may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement; provided, however, that the Trustee shall be
-------- -------
under no obligation to pursue any such remedy, or to exercise any of the
trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative
action or litigation hereunder or in relation hereto and
(ii) the terminating of the 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 cost,
expenses and liabilities which may be incurred therein or thereby; and,
provided further, that, subject to the provisions of Section
- -------- -------
8.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee, in accordance with an Opinion of Counsel,
determines that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Servicer and Upon
-----------------------------------------------------
Event of Default. In the event that the Trustee shall have actual
- ----------------
knowledge of any action or inaction of the Servicer, 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. 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 or any other Event of Default unless notified thereof
in writing by the Servicer or by a Certificateholder.
ARTICLE VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
--------------------------------------------
Liquidation of All Mortgage Loans. (a) The obligations and
- ---------------------------------
responsibilities of the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as set forth
in Section 7.02), shall terminate on the earlier of (i) the final payment or
other liquidation of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (ii) the sale of the property held by
the Trust Fund in accordance with Section 7.01(b); provided, however, that in
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no event shall the Trust Fund created hereby continue beyond the earlier of
(i) the expiration of 21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late Ambassador of the United
States to the Court of St. James's, living on the date hereof, and (ii) the
Latest Possible Maturity Date. Any termination of the Trust Fund shall be
carried out in such a manner so that the termination of each REMIC
included therein shall qualify as a "qualified liquidation" under the
REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 5%
of the Cut-off Date Aggregate Principal Balance, the Depositor may cause the
Trust Fund to adopt a plan of complete liquidation pursuant to Section
7.03(a)(i) hereof to sell all of its property. The property of the Trust
Fund shall be sold at a price (the "Termination Price") equal
-----------------
to: (i) 100% of the unpaid principal balance of each Mortgage Loan on the day
of such purchase plus interest accrued thereon at the applicable Mortgage
Rate with respect to any Mortgage Loan to the Due Date in the Due Period
immediately preceding the related Distribution Date to the date of such
repurchase and (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
appraiser or appraisers mutually agreed upon by the Servicer and the Trustee.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice
----------------------------------------
of any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders
mailed no later than the later of five Business Days after the Trustee has
received notice from the Depositor of its intent to exercise its right to
cause the termination of the Trust Fund pursuant to Section 7.01(b) or the
final payment or other liquidation of the last Mortgage Loan or REO Property
in the Trust Fund. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation
and surrender of the Certificates at the Corporate Trust Office, and (B) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender of
the Certificates at the office or agency of the Trustee therein specified.
The Trustee shall give such notice to the Certificate Registrar at the time
such notice is given to Holders of the Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect
to the Certificates shall terminate and the Trustee shall terminate the
Collection Account it maintains, the Certificate Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice
any Certificates shall not have been surrendered for cancellation, the
Trustee shall, subject to applicable state law relating to escheatment, hold
all amounts distributable to such Holders for the benefit of such Holders.
No interest shall accrue on any amount held by the Trustee and not
distributed to a Certificateholder due to such Mortgage Certificateholder's
failure to surrender its Certificate(s) for payment of the final distribution
thereon in accordance with this Section.
Section 7.03. Additional Trust Fund Termination Requirements. (a)
----------------------------------------------
The Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee seeks, and subsequently receives,
an Opinion of Counsel, addressed to the Trustee to the effect that the
failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (ii) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the Certificates, the Trustee (upon notification by the
Depositor that it intends to exercise its option to cause the termina-
tion of the Trust Fund) shall adopt a plan of complete liquidation of
the Trust Fund on behalf of each REMIC, meeting the requirements of a
qualified liquidation under the REMIC Provisions;
(ii) The sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after the
time of adoption of such a plan of complete liquidation and prior to the
time of making of the final payment on the Certificates;
(iii) On the date specified for final payment of the
Certificates, the Trustee shall make final distributions of principal
and interest on the Certificates in accordance with Section 5.02 and,
after payment of, or provision for any outstanding expenses, distribute
or credit, or cause to be distributed or credited, to the Holders of the
Residual Certificates all cash on hand after such final payment (other
than cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time; and
(iv) In no event may the final payment on the Certificates or
the final distribution or credit to the Holders of the Residual
Certificates be made after the 89th day from the date on which the plan
of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder
thereof hereby (i) authorizes the Trustee to take such action as may be
necessary to adopt a plan of complete liquidation of the related REMIC and
(ii) agrees to take such other action as may be necessary to adopt a plan of
complete liquidation of the related REMIC, which authorization shall be
binding upon all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
-------------------------------
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates evidencing
not less than 25% of the Class Certificate Principal Amount (or Aggregate
Notional Amount) of Certificates of each Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the cost, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding
and no direction inconsistent with such written request has been given such
Trustee during such sixty-day period by such Certificateholders; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section, each
and every Certificateholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
-------------------------
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by
the Certificate Registrar of a request by the Trustee in writing, a list, in
such form as the Trustee may reasonably require, of the names and addresses
of the Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent
list of Certificateholders held by the Trustee or shall, as an alternative,
send, at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in
the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor,
the Certificate Registrar and the Trustee that neither the Depositor, the
Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
-------------------------------
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Such instrument
or instruments (as the action embodies therein and evidenced thereby) are
herein sometimes referred to as an "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agents shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 9.01. Trustee To Retain Possession of Certain Documents.
-------------------------------------------------
Until all amounts distributable in respect of the Certificates have been
distributed in full, the Trustee (or its custodian) shall retain possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions of this Agreement; provided, that documents relating to any
Additional Collateral may be held by a custodian on behalf of the Trustee.
Section 9.02. Preparation of Tax Returns and Other Reports. (a)
--------------------------------------------
The Trustee shall prepare or cause to be prepared on behalf of the Trust
Fund, based upon the information furnished by the Servicer or calculated by
the Trustee in accordance with this Agreement pursuant to instructions given
by the Depositor, and shall file federal tax returns and appropriate state
income tax returns and such other returns as may be required by applicable
law relating to the Trust Fund and shall forward copies to the Depositor of
all such returns and Form 1099 information and such other information within
the control of the Trustee as the Depositor may reasonably request in
writing, and shall forward to each Certificateholder such forms and furnish
such information within the control of the Trustee as are required by the
Code and the REMIC Provisions to be furnished to them, and will prepare and
disseminate to Certificateholders Form 1099s (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law.
(b) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of the Trust Fund, an application on IRS Form
SS-4.
(c) The Depositor will prepare or cause to be prepared the initial
current report on Form 8-K and thereafter the Trustee will prepare or cause
to be prepared Forms 10-K and 10-Q (if necessary), or monthly current reports
on Form 8-K, on behalf of the Trust Fund, as may be required by applicable
law or regulation, and will file such reports electronically with the
Securities and Exchange Commission (the "SEC"). The Trustee will sign each
such report on behalf of the Trust Fund, and will forward a copy of each such
report to the Depositor promptly after such report has been filed with the
SEC. The Depositor agrees to use its best efforts to seek to terminate such
filing obligation after the period during which such filings are required
under the Securities Exchange Act of 1934.
Section 9.03. Release of Mortgage Files. (a) Upon becoming aware
-------------------------
of the payment in full of any Mortgage Loan, or upon receipt by the Servicer
of a notification that payment in full has been escrowed in a manner
customary for payment to the Trustee on the next Remittance Date, the
Servicer will immediately notify the Trustee (or its custodian) by a
certification (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required
to be remitted to the Trustee have been or will be so remitted) of a
Servicing Officer and shall request the Trustee (or its custodian) to deliver
to the Servicer the related Mortgage File. Upon receipt of such
certification and request, the Trustee (or its custodian) shall promptly
release the related Mortgage File to the Servicer and the Trustee shall have
no further responsibility with regard to such Mortgage File. Upon any such
payment in full, the Trustee authorizes the Servicer to give, as agent for
the Trustee, as the mortgagee under the Mortgage that secured the Mortgage
Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case
may be, shall be chargeable to the Certificate Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with Accepted Servicing
Practices, the Trustee (or its custodian) shall execute such documents as
shall be prepared and furnished to the Trustee by the Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of any such proceedings. The Trustee (or its custodian) shall, upon request
of the Servicer and delivery to the Trustee (or its custodian) of a trust
receipt signed by a Servicing Officer substantially in the form of Exhibit C
(or in the form acceptable to FNMA or FHLMC), release the related Mortgage
File held in its possession or control to the Servicer. Such trust receipt
shall obligate the Servicer to return the Mortgage File to the Trustee (or
its custodian) when the need therefor by the Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that specified above, the trust
receipt shall be released by the Trustee (or its custodian) to the Servicer.
(c) The Trustee covenants and agrees that it will comply with all
relevant laws and regulations governing the custody, processing, release and
delivery of the Mortgage Loan documents within its possession or control.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a)(i) For federal income tax
--------------------
purposes, the Trust Fund shall consist of two REMICs, the Lower Tier REMIC
and the Upper Tier REMIC. The Certificates, other than the
Class R1 Certificates, shall be issued by the Upper Tier REMIC, and the Class
R1 Certificates shall be issued by the Lower Tier REMIC. The Lower Tier
REMIC shall be evidenced by the Class R1 Certificate and the regular
interests having the characteristics and terms set forth below, which
interests (other than the Class R1 Certificate) shall be issued by the Lower
Tier REMIC to the Trustee. The Lower Tier Interests and the proceeds thereof
shall be assets of the Upper Tier REMIC.
(ii) The Lower Tier Interests shall consist of the 1-A1, 1-A2, 1-
AP, 1-AX, B1-1, B2(1), B3(1), B4(1), B5(1) and B6(1) (the "Group 1 Lower Tier
Interests"), the 2-A1, 2-A2, 2-A3, 2-A4, 2-A5, 2-A6, 2-A7, 2-A8, 2-A9, 2-AP,
2-AX, 2-B1, B1(2), B2(2), B3(2), B4(2), B5(2) B6(2) and R2 (the "Group 2
Lower Tier Interests"). The Group 1 Lower Tier Interests (other than Lower
Tier Interests 1-AP and 1-AX) shall bear interest at the Pool 1 Rate and the
Group 2 Lower Tier Interests (other than the Lower Tier Interests 2-Ax and 2-
AP) shall bear interest at the Pool 2 Rate. The 1-AP and 2-AP Lower Tier
Interests shall not bear interest. The 1-AX Lower Tier Interest shall bear
interest at the Certificate Interest Rate applicable to the Class 1-AX
Certificates and the 2-AX Lower Tier Interest shall bear interest on the
Certificate Interest Rate applicable to the Class 2-AX Certificates. The
Lower Tier Balance of each Lower Tier Interest shall be equal to the Class
Certificate Principal Amount or Component Principal Amount of the
Corresponding Class for such Lower Tier Interest. The initial Lower Tier
Balance for Lower Tier Interest R2 shall be equal to $100.
Distributions of principal on the Lower Tier Interests shall
correspond to the distributions of principal made under Section 5.02 on the
Classes of Certificates and Components. Allocation of losses on the Lower
Tier Interests shall correspond to the allocation of Realized Losses made
under Section 5.03 on the Classes of Certificates and Components.
(iii) The Lower Tier Interests shall be issued as non-certificated
interests. The Class R1 Certificate shall be issued in fully registered
certificated form and shall be executed and countersigned as provided in
Section 3.01 hereof.
(iv) On each Distribution Date, in addition to amounts otherwise
distributable thereon pursuant to Section 5.02, the Trustee shall distribute
to the holder of the Class R1 Certificate any amounts (other than the amounts
described in clauses (a) through (e) of the definition of Available
Distribution Amount) remaining in the Lower Tier REMIC after all amounts
required to be applied pursuant to the preceding paragraph have been so
applied. Any distributions pursuant to this paragraph shall not reduce the
Class Certificate Principal Amount of the Class R1 Certificate.
(v) The Lower Tier Interests identified in subparagraph (ii) above
shall be designated as the "regular interests" and the Class R1 Certificate
as the single class of "residual interests" in the Lower Tier REMIC for
purposes of the REMIC provisions. The Certificates other than the Class R1
and Class R2 Certificates shall be designated as "regular interests" in the
Upper Tier REMIC for purposes of the REMIC Provisions. The Class R2
Certificates shall be designated as the single class of "residual interest"
in the Upper Tier REMIC for purposes of the REMIC Provisions.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Trustee in fulfilling its
duties hereunder (including its duties as tax return preparer).
(d) The Trustee shall act as Tax Matters Person for each REMIC. The
Trustee shall prepare, sign, and file all of each REMIC's federal and state
tax and information returns as such REMIC's direct representative. The
expenses of preparing and filing such returns shall be borne by the Trustee.
(e) The Trustee or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
each REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Trustee shall provide (i) to the
Treasury or other governmental authority such information as is necessary
for the application of any tax relating to the transfer of a Residual
Certificate to any disqualified person or organization and (ii) to the
Certificateholders such information or reports as are required by the
Code or REMIC Provisions.
(f) The Trustee and the Holders of Certificates shall take any action
or cause each REMIC to take any action necessary to create or maintain the
status of such REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Trustee nor the Holder of any Residual Certificate shall take any action,
cause any REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of such REMIC as a REMIC or
(ii) result in the imposition of a tax upon such REMIC (including but not
limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section
860G(d) of the Code) (either such event, an "Adverse REMIC Event") unless the
Trustee has received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not endanger such status or result in the imposition of such a tax. In
addition, prior to taking any action with respect to a REMIC or the assets
therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to such REMIC, and no such Person shall take any such action or
cause such REMIC to take any such action as to which the Trustee has advised
it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Certificate Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans if permitted by the Seller's Warranties and
Servicing Agreement.
(j) The Trustee shall not enter into any arrangement by which any REMIC
will receive a fee or other compensation for services.
Section 10.02. Prohibited Transactions and Activities. Neither the
--------------------------------------
Depositor nor the Trustee shall sell, dispose of, or substitute for any of
the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure
of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of each REMIC pursuant to Article VII of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a repurchase of
Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the
Certificate Account for gain, nor accept any contributions to any REMIC after
the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a)
affect adversely the status of such REMIC as a REMIC or of the Certificates
other than the Residual Certificates as the regular interests therein, (b)
affect the distribution of interest or principal on the Certificates, (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement) or (d) cause such
REMIC to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
The Trustee shall not consent to any modification of any material term
of any Mortgage Loan unless it has received an Opinion of Counsel (at the
expense of the party requesting such modification) to the effect that such
modification would not cause the Trust Fund to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860(F)(a) or Section
860(G)(d) of the Code.
Section 10.03. Indemnification with Respect to Certain Taxes and
-------------------------------------------------
Loss of REMIC Status. In the event that any REMIC fails to qualify as a
- --------------------
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes
as a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due to the negligent performance by the Trustee of its
duties and obligations set forth herein, the Trustee shall indemnify the
Holder of the related Residual Certificate against any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Trustee shall not be
-------- -------
liable for any such Losses attributable to the action or inaction of the
Depositor, or the Holder of such Residual Certificate, as applicable,
nor for any such Losses resulting from misinformation provided by the
Holder of such Residual Certificate on which the Trustee has relied.
The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however,
in no event shall the Trustee have any liability (1) for
any action or omission that is taken in accordance with and in compliance
with the express terms of, or which is expressly permitted by the terms of,
this Agreement, (2) for any losses other than arising out of a negligent
performance by the Trustee of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
---------------------------------------
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
----------------
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) Subject to Section 11.14, this
---------
Agreement may be amended from time to time by the Depositor and the Trustee,
without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document; or
to correct or supplement any provision herein which may be inconsistent with
any other provisions herein, (iii) to make any other provisions, with respect
to matters or questions arising under this Agreement or (iv) to add, delete,
or amend any provisions to the extent necessary or desirable to comply with
any requirements imposed by the Code and the REMIC Provisions. No such
amendment effected pursuant to the preceding sentence shall, as evidenced by
an Opinion of Counsel, adversely affect the status of any REMIC
created pursuant to this Agreement, nor shall such amendment effected
pursuant to clause (iii) of such sentence adversely affect in any material
respect the interests of any Holder. Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee may
require an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such amendment is permitted under this
paragraph. Any such amendment shall be deemed not to adversely affect in any
material respect any Holder, if the Trustee receives written confirmation
from each Rating Agency that such amendment will not cause such Rating Agency
(in the case of the Class 2-A4 Certificates, determined without regard to the
Class 2-A4 Certificate Insurance Policy) to reduce the then current rating
assigned to the Certificates (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) Subject to Section 11.14, this Agreement may also be amended from
time to time by the Depositor and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class Certificate Principal Amount (or
Aggregate Notional Amount) of each Class of Certificates affected thereby for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided, however, that no such amendment
shall be made unless the Trustee receives an Opinion of Counsel, at the
expense of the party requesting the change, that such change will not
adversely affect the status of any REMIC as a REMIC or cause a tax to be
imposed on such REMIC; and provided further, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received
on Mortgage Loans, which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate or (ii) reduce the
aforesaid percentages of Class Certificate Principal Amount (or Aggregate
Notional Amount) of Certificates of each Class, the Holders of which are
required to consent to any such amendment without the consent of the Holders
of 100% of the Class Certificate Principal Amount (or Aggregate Notional
Amount) of each Class of Certificates affected thereby. For purposes of this
paragraph, references to "Holder" or "Holders" shall be deemed to include,
the case of any Class of Book-Entry Certificates, the related Certificate
Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization
of the execution thereof by Holders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 11.04. Voting Rights. Except to the extent that the consent
-------------
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate
outstanding Certificate Principal Amount (or Notional Amount), Certificates
owned by the Depositor, the Trustee or the Servicer or Affiliates thereof are
not to be counted so long as such Certificates are owned by the Depositor,
the Trustee or the Servicer or Affiliates thereof.
Section 11.05. Provision of Information. (a) For so long as any of
------------------------
the Certificates of any Series or Class are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act, each of the Depositor and the
Trustee agree to cooperate with each other to provide to any
Certificateholders and to any prospective purchaser of Certificates
designated by such Certificateholder, upon the request of such
Certificateholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket
expenses incurred by the Trustee in providing such information shall be
reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form 8-
K or Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 9.02(c) and (ii) a copy of any document incorporated by reference in
the Prospectus. Any reasonable out-of-pocket expenses incurred by the
Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
(c) On each Distribution Date the Trustee shall deliver or cause to be
delivered by first class mail to the Depositor, Attention: Contract Finance,
a copy of the report delivered to Certificateholders pursuant to Section
4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given
when received by (a) in the case of the Depositor, Structured Asset
Securities Corporation, 200 Vesey Street, 12th Floor, New York, New York
10285, Attention: Mark Zusy, and (b) in the case of the
Trustee, U.S. Bank National Association, 180 East Fifth Street, St. Paul,
Minnesota 55101 Attention: Structural Finance SASCO 1997-4 or as to each
party such other address as may hereafter be furnished by such Party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of
--------------------------
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any
-----------------------
delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
-------------------------------------
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. (a) Subject to Section
---------------------
11.14, nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except
to the extent specified in paragraph (b) of this Section 11.11.
(b) Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in furtherance of the
intent of such parties as set forth herein, that the Servicer receive the
benefit of the provisions of Section 9.03 hereof and of this Section 11.11 as
an intended third party beneficiary of this Agreement to the extent of such
provisions. The Trustee shall have the same obligations to the Servicer
under Section 9.03 hereof as if the Servicer were a party to this Agreement,
and the Servicer shall have the same rights and remedies to enforce the
provisions of Section 9.03 hereof and this Section 11.11 as if the Servicer
were a party to this Agreement.
Section 11.12. Special Notices to the Rating Agencies. (a) The
--------------------------------------
Depositor shall give, prompt notice to the Rating Agencies and to the Class
2-A4 Certificate Insurer of the occurrence of any of the following events of
which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) the appointment of any successor to the Servicer
pursuant to Section 6.14; and
(iii) the making of a final payment pursuant to Section
7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to DCR to:
55 East Monroe Street
38th Floor
Chicago, Illinois 60603
If to S&P, to:
Standard & Poor's Ratings Services,
A division of The McGraw-Hill Companies, Inc.
26 Broadway, 15th Floor
New York, New York 10004
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agencies reports
prepared pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one
------------
or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
Section 11.14. Matters Relating to the Class 2-A4 Certificate
----------------------------------------------
Insurance Policy. (a) By accepting its Certificate, each Class 2-A4
- ----------------
Certificateholder agrees that unless a Class 2-A4 Certificate Insurer Default
exists, the Class 2-A4 Certificate Insurer shall have the right to exercise
all rights of the Class 2-A4 Certificateholders under this Agreement without
any further consent of the Class 2-A4 Certificateholders, including, without
limitation:
(i) the right to give notices of breach or to terminate the rights
and obligations of the Servicer as Servicer pursuant to Section 6.14;
(ii) the right to direct the actions of the Trustee during the
continuance of an Event of Default pursuant to Sections 6.14 and 6.15;
(iii) the right to consent to or direct any waivers of Events of
Default; and
(iv) the right to remove the Trustee pursuant to Section 6.06.
In addition, each Class 2-A4 Certificateholder agrees that, unless a
Class 2-A4 Certificate Insurer Default exists, the rights specifically set
forth above may be exercised by the Class 2-A4 Certificateholders only with
the prior written consent of the Class 2-A4 Certificate Insurer; provided,
that such consent shall not be required if the Class 2-A4 Certificate Insurer
is furnished with either (i) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests of
the Class 2-A4 Certificate Insurer or (ii) a letter from each Rating Agency
stating that such amendment will not result in the downgrade or withdrawal of
the rating then assigned to the Class 2-A4 Certificates without regard to the
guaranty provided by the Class 2-A4 Policy.
(b) Unless a Class 2-A4 Certificate Insurance Default exists, the
Trustee shall not agree to any amendment pursuant to Section 11.03 without
the prior written consent of the Class 2-A4 Certificate Insurer, which
consent shall not be unreasonably withheld.
(c) All notices, statements, reports, certificates or opinions required
by this Agreement to be sent to any other party hereto or to the Class 2-A4
Certificateholders shall also be sent, and any report or statement sent by
the Servicer to the Trustee in accordance with the Seller's Warranties and
Servicing Agreement shall be sent by the Trustee, to the Class 2-A4
Certificate Insurer at the following address:
MBIA Insurance Corporation
113 King Street
Armonk, New York 10022
Attention: IPM - Structured
Fax: 914-765-3810
or such other address as the Class 2-4A Certificate Insurer may hereafter
furnish to the Depositor and the Trustee
(d) the Class 2-A4 Certificate Insurer shall be a third-party
beneficiary of this Agreement, entitled to enforce the provisions hereof as
if a party hereto.
(e) No purchase of the property of the Trust Fund pursuant to Section
7.01(b) shall occur if such purchase would result in a draw on the Class 2-A4
Certificate Insurance Policy, unless the Class 2-A4 Certificate Insurer has
consented to such purchase.
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers hereunto duly
authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Joseph J. Kelly
----------------------------
Name: Joseph J. Kelly
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Mark E. LeMay
------------------------
Name: Mark E. LeMay
Title: Vice President
For Purposes of Section 9.03 and 11.11,
accepted and agreed to by:
FIRST NATIONWIDE MORTGAGE CORPORATION
By: /s/ Robert M. Bodell
-------------------------
Name: Robert M. Bodell
Title: Executive Vice President
EXHIBIT A
---------
FORMS OF CERTIFICATES
Exhibit B-1
-----------
FORM OF FINAL CERTIFICATION
----------------------
(Date)
Structured Asset Securities Corporation
200 Vesey Street
New York, New York 10285
Re: Trust Agreement (the "Trust Agreement"), dated as of November 1,
1997 between Structured Asset Securities Corporation, as Depositor
and U.S. Bank National Association, as Trustee, with respect to
Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1997-4
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it (or its custodian) has received:
(i) the original Mortgage Note endorsed without recourse in proper
form to the order of the Trustee;
(ii) a duly executed Assignment of Mortgage or assignment of
security agreement;
(iii) with respect to any Mortgage Loan other than a Cooperative
Mortgage Loan, the original recorded Mortgage, and with respect to any
Cooperative Mortgage Loan, the original recorded pledge and security
agreement, with evidence of recording indicated thereon; or, if, in
connection with any Mortgage Loan, the Depositor (or the Servicer or any of
its correspondents, at the direction of the Seller and the Depositor) cannot
deliver the Mortgage or pledge and security agreement with evidence of
recording thereon because such document has been lost, the Depositor (or the
Servicer or its correspondents, at the direction of the Seller and Depositor)
shall deliver or cause to be delivered to the Trustee, a photocopy of such
document (certified by the Servicer or its correspondents to be a true and
correct copy) together with a written Opinion of Counsel acceptable to the
Trustee and the Depositor that an original recorded Mortgage or pledge and
security agreement is not required to enforce the Trustee's interest in the
Mortgage Loan;
(iv) if applicable, such original intervening assignments
("Intervening Assignments"), as may be necessary to show a complete
chain of title to the Mortgage from the originator to the
Trustee at the direction of the Seller and the Depositor; or, as to any such
Intervening Assignment which cannot be delivered because such Intervening
Assignment has been lost, a photocopy of such Intervening Assignment and a
certificate of the Servicer as specified in Exhibit C-1 of the Seller's
Warranties and Servicing Agreement.
(v) with respect to any Mortgage Loan other than a Cooperative
Loan, the original lender's Title Insurance Policy or a written commitment to
issue such Title Insurance Policy or, in lieu thereof, a copy of such Title
Insurance Policy;
(vi) the original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans (as and to the extent of
those Mortgage Loans specifically identified by the Servicer to be subject to
any assumption, modification or substitution;
(vii) with respect to any Cooperative Mortgage Loan, the original
Cooperative Loan Documents; and
(viii) the original additional collateral pledge and security
agreement executed in connection with each pledge of Additional Collateral,
assigned to the Trustee.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
(Custodian)
(( ),
as Trustee)
By:________________________________
Name:
Title:
Exhibit B-2
-----------
FORM OF ENDORSEMENT
Pay to the order of U.S. Bank National Association, as trustee (the
"Trustee") under a Trust Agreement dated as of November 1, 1997, between
Structured Asset Securities Corporation, as Depositor, and the Trustee
relating to Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 1997-4, without recourse.
__________________________________
(current signatory on note)
By:_______________________________
Name:
Title:
EXHIBIT C
---------
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
----------------------
(Date)
(Addressed to Trustee
or, if applicable, custodian)
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of 1, 199__
------------
between Structured Asset Securities Corporation, as Depositor, and you, as
Trustee (the "Trust Agreement"), the undersigned Servicer hereby requests a
release of the Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Servicer hereby certifies that all
amounts received in connection with the loan have been or will be credited to
the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
2. Mortgage Loan repurchased. (The Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust Agreement.)
3. Mortgage Loan substituted. (The Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
4. The Mortgage Loan is being foreclosed.
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Trust Agreement
and will be returned to you within ten (10) days of our receipt of the
Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan
(in which case the Mortgage File will be retained by us permanently) and
except if the Mortgage Loan is being foreclosed (in which case the Mortgage
File will be returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Trust Agreement.
__________________________________
(Name of Servicer)
By:_______________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
-----------
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
(NAME OF OFFICER), _________________ being first duly sworn,
deposes and says:
1. That he (she) is (title of officer) ___________
_____________ of (name of Purchaser) ________________________
_________________ (the "Purchaser"), a _______________________ (description
of type of entity) duly organized and existing under the laws of the (State
of __________) (United States), on behalf of which he (she) makes this
affidavit.
2. That the Purchaser's Taxpayer Identification Number is
( ).
3. That the Purchaser is not a "disqualified organization" within
the meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as
amended (the "Code") and will not be a "disqualified organization" as of
(date of transfer), and that the Purchaser is not acquiring a Residual
Certificate (as defined in the Agreement) for the account of, or as agent
(including a broker, nominee, or other middleman) for, any person or entity
from which it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of
any of the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not selected
by such governmental entity), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas as
described in Code Section 1381(a)(2)(C), or any organization (other than a
farmers' cooperative described in Code Section 521) that is exempt from
federal income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511.
4. That the Purchaser is not, and on __________ (insert date of
transfer of Residual Certificate to Purchaser) will not be, and is not and on
such date will not be investing the assets of, an employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Code Section 4975 or a person or entity that
is using the assets of any employee benefit plan or other plan to acquire a
Residual Certificate.
5. That the Purchaser hereby acknowledges that under the terms of
the Trust Agreement (the "Agreement") between Structured Asset Securities
Corporation and U.S. Bank National Association, as Trustee, dated as of
November 1, 1997, no transfer of the Residual Certificates shall be permitted
to be made to any person unless the Trustee has received a certificate from
such transferee to the effect that such transferee is not an employee benefit
plan subject to ERISA or a plan subject to Section 4975 of the Code and is
not using the assets of any employee benefit plan or other plan to acquire
Residual Certificates.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes legally
required to be paid with respect to such Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate to
any person or entity (i) as to which the Purchaser has actual knowledge that
the requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof
are not satisfied or that the Purchaser has reason to believe does not
satisfy the requirements set forth in paragraph 7 hereof, and (ii) without
obtaining from the prospective Purchaser an affidavit substantially in this
form and providing to the Trustee a written statement substantially in the
form of Exhibit G to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax liabilities in excess of
any cash flows generated by the interest and that it intends to pay taxes
associated with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service Form
4224 or successor form at the time and in the manner required by the Code or
(iii) is a Non-U.S. Person that has delivered to both the transferor and the
Trustee an opinion of a nationally recognized tax counsel to the effect that
the transfer of such Residual Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such transfer of a Residual Certificate will not be disregarded for federal
income tax purposes. "Non-U.S. Person" means an individual, corporation,
partnership or other person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or
an estate that is subject to U.S. federal income tax regardless of the source
of its income, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States trustees have authority to control all substantial
decisions of the trust.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization,"
an agent thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee
as its agent to act as "tax matters person" of the Trust Fund pursuant to the
Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its (title of officer) this _____ day of __________, 19__.
_________________________________
(name of Purchaser)
By:______________________________
Name:
Title:
Personally appeared before me the above-named (name of officer)
________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the (title of officer) _________________
of the Purchaser, and acknowledged to me that he (she) executed the same as
his (her) free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 19__.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 19__.
EXHIBIT D-2
-----------
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
___________________
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
---------------------------------------
_______________________ (the "Transferor") has reviewed the
attached affidavit of _____________________________ (the "Transferee"), and
has no actual knowledge that such affidavit is not true and has no reason to
believe that the information contained in paragraph 7 thereof is not true,
and has no reason to believe that the Transferee has the intention to impede
the assessment or collection of any federal, state or local taxes legally
required to be paid with respect to a Residual Certificate. In addition, the
Transferor has conducted a reasonable investigation at the time of the
transfer and found that the Transferee had historically paid its debts as
they came due and found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due.
Very truly yours,
_______________________________
Name:
Title:
EXHIBIT E
---------
Seller's Warranties and Servicing Agreement
EXHIBIT F
---------
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 1997-4
---------------------------------------
Reference is hereby made to the Trust Agreement dated as of
_____________ 1, 199__ (the "Trust Agreement") between Structured Asset
Securities Corporation, as Depositor, and ( ), as
Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Balance of
Class _____ Certificates which are held in the form of Definitive
Certificates registered in the name of
--------------------------------
(the "Transferor"). The Transferor has requested a transfer of such
Definitive Certificates for Definitive Certificates of such Class registered
in the name of (insert name of transferee).
In connection with such request, and in respect of such
Certificates, the Transferor hereby certifies that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth
in the Trust Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A purchasing
for its own account or for the account of a "qualified institutional buyer",
which purchaser is aware that the sale to it is being made in reliance upon
Rule 144A, in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
_____________________________________
(Name of Transferor)
By:__________________________________
Name:
Title:
Dated: ___________, ____
EXHIBIT G
---------
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
----------------------
(Date)
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 1997-4 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor"), we confirm that:
(1) We have received a copy of the Private Placement Memorandum dated
, 199 relating to the Privately Offered Certificates (the "Private
- ------- --
Placement Memorandum"), and we understand that the Privately Offered
Certificates have not been, and will not be, registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that if
we should sell any Privately Offered Certificates within three years of the
later of the date of original issuance of the Privately Offered Certificates
or the last day on which such Privately Offered Certificates are owned by the
Depositor or any affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the Securities
Act) in accordance with Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to an exemption from registration in accordance with Rule 904 of
Regulation S under the Securities Act, (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act, or (E) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act that is not a QIB
(an "Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of November 1,
199_ between the Depositor and U.S. Bank National Association, as Trustee
(the "Trustee"), a signed letter in the form of this letter; and we further
agree, in the capacities stated above, to provide to any person purchasing
any of the Privately Offered Certificates from us a notice advising such
purchaser that resales of the Privately Offered Certificates are restricted
as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor,
we will be required to furnish to the Trustee and the Depositor a
certification from such transferee in the form hereof to confirm that
the proposed sale is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Privately Offered Certificates, and we and any account for which we are
acting are each able to bear the economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make
our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that in
accordance with ERISA, the Code and the Exemption, no Plan as to which
the Purchaser, the Depositor, any Servicer or Master Servicer or the
Trustee is a party in interest or disqualified person, and no person
acting on behalf of such a Plan may acquire such Certificate unless the
acquisition would constitute an exempt transaction under a statutory
exemption or any of the administrative exemptions issued by the U.S.
Department of Labor.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
__________________________________
(Purchaser)
By________________________________
Name:
Title:
EXHIBIT H
---------
(FORM OF ERISA TRANSFER AFFIDAVIT)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is the ______________________ of (the
"Investor"), a (corporation duly organized) and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), the Trustee of any such plan
or a person acting on behalf of any such plan nor a person using the assets
of any such plan or (2) if the Investor is an insurance company, such
Investor is purchasing such Certificates with funds contained in an
"Insurance Company General Account" (as such term is defined in Section v(e)
of the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under PTCE 95-60;
or (y) shall deliver to the Trustee and the Depositor an opinion of counsel
(a "Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee and the Depositor shall be entitled to rely, to the
effect that the purchase or holding of such Certificate by the Investor will
not result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and
will not subject the Trustee or the Depositor to any obligation in addition
to those undertaken by such entities in the Trust Agreement, which opinion of
counsel shall not be an expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") between Structured Asset Securities
Corporation, as Depositor, and U.S. Bank National Association, as Trustee,
dated November 1, 1997, no transfer of the ERISA-Restricted Certificates
shall be permitted to be made to any person unless the Depositor and Trustee
have received a certificate from such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 199 .
_________________________________
(Investor)
By:______________________________
Name:
Title:
ATTEST:
___________________________
STATE OF )
)ss.:
COUNTY OF )
Personally appeared before me the above-named
_________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the _________________ of the Investor, and
acknowledged that he executed the same as his free act and deed and the free
act and deed of the Investor.
Subscribed and sworn before me this _____ day of ___________ 199__.
__________________________________
NOTARY PUBLIC
My commission expires the
____ day of __________, 19__.
EXHIBIT K
---------
CUSTODIAL AGREEMENT
SCHEDULE A
----------
MORTGAGE LOAN SCHEDULE
SCHEDULE B
----------
PRINCIPAL AMOUNT SCHEDULES
(Not Applicable)
Exhibit 99.1
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
Purchaser
and
FIRST NATIONWIDE MORTGAGE CORPORATION,
Company
_____________________________________________
SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of November 1, 1997
_____________________________________________
Conventional Residential Fixed Rate Mortgage Loans
Group No. 1997-FN-01
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION
OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section Page
- ------- ----
2.01 Conveyance of Mortgage Loans; Possession
of Mortgage Files; Maintenance of
Servicing Files...................................
2.02 Books and Records; Transfers of Mortgage Loans.......
2.03 Custodial Agreement; Delivery of Documents ..........
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES AND BREACH
3.01 Company Representations and Warranties .............
3.02 Representations and Warranties Regarding
Individual Mortgage Loans ........................
3.03 Remedies for Breach of Representations
and Warranties ...................................
3.04 Restrictions and Requirements Applicable in the Event
that a Mortgage Loan is Acquired by
a REMIC...........................................
3.05 Repurchase of Delinquent Mortgage Loans.............
3.06 Repurchase of REO Properties........................
3.07 Purchaser Representations and Warranties............
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
4.01 Company to Act as Servicer .........................
4.02 Liquidation of Mortgage Loans
4.03 Collection of Mortgage Loan Payments................
4.04 Establishment of and Deposits to
Custodial Account ................................
4.05 Permitted Withdrawals From
Custodial Account ................................
4.06 Establishment of and Deposits to
Escrow Account ...................................
4.07 Permitted Withdrawals From Escrow Account ..........
4.08 Payment of Taxes, Insurance and
Other Charges ....................................
4.09 Protection of Accounts .............................
4.10 Maintenance of Hazard Insurance ....................
4.11 Maintenance of Mortgage Impairment..................
Insurance ........................................
4.12 Maintenance of Fidelity Bond and
Errors and Omissions Insurance ...................
4.13 Inspections ........................................
4.14 Restoration of Mortgaged Property ..................
4.15 Maintenance of PMI Policy; Claims
4.16 Title, Management and Disposition
of REO Property ..................................
4.17 Real Estate Owned Reports ..........................
4.18 Liquidation Reports ................................
4.19 Reports of Foreclosures and Abandonments of
Mortgaged Property................................
ARTICLE V
PAYMENTS TO PURCHASER
5.01 Remittances..........................................
5.02 Statements to Purchaser..............................
5.03 Monthly Advances by Company .........................
ARTICLE VI
GENERAL SERVICING PROCEDURES
6.01 Transfers of Mortgaged Property ....................
6.02 Satisfaction of Mortgages and
Release of Mortgage Files ........................
6.03 Penalties for Prepayment............................
6.04 Servicing Compensation .............................
6.05 Annual Statement as to Compliance ..................
6.06 Annual Independent Public Accountants'
Servicing Report .................................
6.07 Right to Examine Company Records ...................
ARTICLE VII
AGENCY TRANSFER; PASS-THROUGH TRANSFER
7.01. Removal of Mortgage Loans from Inclusion Under
this Agreement Upon an Agency Transfer, or a
Pass-Through Transfer on One or More
Reconstitution Dates.............................
7.02. Purchaser's Repurchase and
Indemnification Obligations......................
ARTICLE VIII
COMPANY TO COOPERATE
8.01 Provision of Information...........................
8.02 Financial Statements; Servicing Facilities ........
ARTICLE IX
THE COMPANY
9.01 Indemnification; Third Party Claims ...............
9.02 Merger or Consolidation of the Company ............
9.03 Limitation on Liability of Company
and Others ......................................
9.04 Limitation on Resignation and
Assignment by Company ..........................
ARTICLE X
DEFAULT
10.01 Events of Default .................................
10.02 Waiver of Defaults ................................
ARTICLE XI
TERMINATION
11.01 Termination ........................................
11.02 Termination Without Cause ..........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.01 Successor to Company ...............................
12.02 Amendment ..........................................
12.03 Governing Law ......................................
12.04 Duration of Agreement ..............................
12.05 Notices ............................................
12.06 Severability of Provisions .........................
12.07 Relationship of Parties ............................
12.08 Execution; Successors and Assigns ..................
12.09 Recordation of Assignments of Mortgage .............
12.10 Assignment by Purchaser.............................
12.11 No Personal Solicitation............................
EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B-1 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B-2 CONTENTS OF EACH SERVICING FILE
EXHIBIT C CUSTODIAL AGREEMENT
EXHIBIT D-1 FORM OF CUSTODIAL ACCOUNT
CERTIFICATION
EXHIBIT D-2 FORM OF CUSTODIAL ACCOUNT
LETTER AGREEMENT
EXHIBIT E-1 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT E-2 FORM OF ESCROW ACCOUNT
LETTER AGREEMENT
EXHIBIT F FORM OF MONTHLY REMITTANCE ADVICE
This is a Seller's Warranties and Servicing Agreement for
conventional fixed rate residential first mortgage loans, dated and effective
as of November 1, 1997, and is executed between Lehman Capital, A Division of
Lehman Brothers Holdings Inc., as purchaser (the "Purchaser"), and First
---------
Nationwide Mortgage Corporation, as seller and servicer (the "Company").
-------
W I T N E S S E T H
--- -- -- -- -
WHEREAS, the Purchaser has agreed to purchase from the Company and
the Company has agreed to sell to the Purchaser certain Mortgage Loans which
have an aggregate outstanding principal balance as of the close of business
on the Cut-off Date, after deduction of principal payments due on or before
such date of $443,247,897;
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule,
which is annexed hereto as Exhibit A; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner
of delivery of the Mortgage Loans to Purchaser and the management, servicing
and control of the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
----------------------------
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Agreement: This Seller's Warranties and Servicing Agreement and
---------
all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor
----
thereto.
Ancillary Income: All income derived from the Mortgage Loans,
----------------
other than Servicing Fees, including but not limited to, late charges,
prepayment fees, fees received with respect to checks or bank drafts returned
by the related bank for non-sufficient funds, assumption fees, optional
insurance administrative fees and all other incidental fees and charges.
Appraised Value: The value set forth in an appraisal made in
---------------
connection with the origination of the related Mortgage Loan as the value of
the Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
----------------------
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Purchaser.
BIF: The Bank Insurance Fund, or any successor thereto.
---
Breach: As defined in Section 3.03.
------
Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
------------
a day on which banking and savings and loan institutions in the States of New
York and Maryland are authorized or obligated by law or executive order to be
closed.
Certificates. Any and all of the Certificates issued pursuant to
------------
the Trust Agreement.
Closing Date: November 7, 1997.
------------
Code: The Internal Revenue Code of 1986, as it may be amended from
----
time to time or any successor statute thereto, and applicable U.S. Department
of the Treasury regulations issued pursuant thereto.
Company: First Nationwide Mortgage Corporation, or its successor
-------
in interest or assigns, or any successor to the Company under this Agreement
appointed as herein provided.
Condemnation Proceeds: All awards or settlements in respect of a
---------------------
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created and
-----------------
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
-------------------
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents which is annexed hereto as exhibit C.
Custodian: The custodian under the Custodial Agreement, or its
---------
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
Cut-off Date: November 1, 1997.
------------
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
---------------------
Company in accordance with the terms of this Agreement and which is, in the
case of a substitution pursuant to Section 3.03, replaced or to be replaced
with a Qualified Substitute Mortgage Loan.
Determination Date: The last day Business Day prior to the
------------------
Remittance Date.
Disqualified Organization: An organization defined as such in
-------------------------
Section 860E(e) of the Code.
Due Date: The day of the month on which the Monthly Payment is due
_________
on a Mortgage Loan, exclusive of any days of grace. With respect to the
Mortgage Loans for which payment from the Mortgagor is due on a day other
than the first day of the month, such Mortgage Loans will be treated as if
the Monthly Payment is due on the first day of the month following the actual
Due Date.
Due Period: With respect to each Remittance Date, the period
----------
commencing on the second day of the month preceding the month of the
Remittance Date and ending in the first day of the month of the Remittance
Date.
Eligible Investments: Any one or more of the obligations and
--------------------
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, or any agency or instrumentality
of the United States of America the obligations of which are
backed by the full faith and credit of the United States of
America; and
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under
the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or
state banking authorities, so long as at the time of such
investment or contractual commitment providing for such
investment the commercial paper or other short-term debt
obligations of such depository institution or trust company
(or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated in one of two of the highest
ratings by each of Standard & Poor's, Fitch and Moody's and
the long-term debt obligations of such holding company)
are rated in one of two of the highest ratings, by each
of Standard & Poor's, Fitch and Moody's, and the long-term
debt obligations of such depository institution or trust
company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding
company, the long-term debt obligations of such
holding company) are rated in one of two of the highest
ratings, by each of Standard & Poor's, Fitch and Moody's;
provided, however, that no such instrument shall be an Eligible
-------- -------
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120%
of the yield to maturity at par of such underlying obligations.
Errors and Omissions Insurance Policy: An errors and omissions
_________________________________________________
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
--------------
maintained pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
---------------
constituting ground rents, taxes, mortgage insurance premiums, fire and
hazard insurance premiums, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or
any other related document.
Event of Default: Any one of the conditions or circumstances
----------------
enumerated in Section 10.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
----
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
-----
successor thereto.
Fidelity Bond: A fidelity bond to be maintained by the Company
-------------
pursuant to Section 4.12.
First Remittance Date: December 18, 1997.
---------------------
Fitch: Fitch Investors Service, L.P., or its successor in
-----
interest.
FNMA: The Federal National Mortgage Association, or any successor
----
thereto.
FNMA Guides: The FNMA Sellers' Guide and the FNMA Servicers' Guide
-----------
and all amendments or additions thereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
------------------
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Liquidation Proceeds: Cash received in connection with the
--------------------
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
--------------------------
ratio of the Stated Principal Balance of the Mortgage Loan as of the date of
origination (unless otherwise indicated) to the lesser of (a) the Appraised
Value of the Mortgaged Property and (b) if the Mortgage Loan was made to
finance the acquisition of the related Mortgaged Property, the purchase price
of the Mortgaged Property, expressed as a percentage.
Master Servicer: The person, if any, designated as "Master
---------------
Servicer" under a Reconstitution Agreement.
Monthly Advance: The portion of Monthly Payment delinquent with
---------------
respect to each Mortgage Loan at the close of business on the Determination
Date required to be advanced by the Company pursuant to Section 5.03 on the
Business Day immediately preceding the Remittance Date of the related month.
Moody's: Moody's Investors Services, Inc., or its successor in
-------
interest.
Monthly Payment: The scheduled monthly payment of principal and
---------------
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing
--------
a Mortgage Note, which creates a first lien on an unsubordinated estate in
fee simple in real property securing the Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
-------------
referred to in Exhibit B-1 annexed hereto, and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
------------------------------------
blanket hazard insurance policy as described in Section 4.11.
Mortgage Interest Rate: The annual rate of interest borne on a
----------------------
Mortgage Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject
-------------
of this Agreement, each Mortgage Loan originally sold and subject to this
Agreement being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes without limitation the Mortgage File, and as they apply to
the period from and after the Cut-off Date, all the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds and all other
rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: The documents required to be delivered
-----------------------
pursuant to this Agreement.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
-----------------------------
the annual rate of interest remitted to the Purchaser, which shall be equal
to the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
----------------------
hereto as Exhibit A, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Company's Mortgage Loan
identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the state code; (4) a code indicating whether
the Mortgaged Property is a single family residence, a 2-4 family residence,
a condominium unit or a unit in a planned unit development; (5) the original
months to maturity or the remaining months to maturity from the Cut-off Date,
in any case based on the original amortization schedule, and if different,
the maturity expressed in the same manner but based on the actual
amortization schedule; (6) the Loan-to-Value Ratio at origination; (7) the
Mortgage Interest Rate as of the Cut-off Date; (8) the date on which the
Mortgage Loan was originated; (9) the stated maturity date; (10) the amount
of the Monthly Payment; (11) the last payment date on which a payment was
actually applied to the outstanding principal balance; (12) the original
principal amount of the Mortgage Loan; (13) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due on or before the Cut-off Date, whether
or not collected; (14) the Mortgage Loan Remittance Rate as of the Cut-off
Date; (15) the PMI Policy certificate number; (16) the PMI Policy coverage
percentage; (17) a code indicating the occupancy status; and (18) a code
indicating the loan purpose. With respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the Cut-off Date: (1) the number of Mortgage Loans; (2)
the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; and
(4) the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of
-------------
a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property and all improvements thereon
------------------
securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
---------
Nonrecoverable Advance: With respect to any Mortgage Loan, any
----------------------
Monthly Advance or proposed Monthly Advance which, in the judgment of
Servicer, may not be ultimately recoverable by the Servicer from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds or otherwise.
Officer's Certificate: A certificate signed by the Chairman of the
---------------------
Board or the Vice Chairman of the Board or the President or a Vice President
or an Assistant Vice President and by the Treasurer or the Secretary or one
of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
------------------
employee of the Company, reasonably acceptable to the Purchaser, provided
that any Opinion of Counsel relating to (a) qualification of the Mortgage
Loans in a REMIC or (b) compliance with the REMIC Provisions, must be an
opinion of counsel who (i) is in fact independent of the Company and any
master servicer of the Mortgage Loans, (ii) does not have any material direct
or indirect financial interest in the Company or any master servicer of the
Mortgage Loans or in an affiliate of either and (iii) is not connected with
the Company or any master servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
Pass-Through Transfer: The sale or transfer of some or all of the
---------------------
Mortgage Loans to a trust to be formed as part of a publicly-issued and/or
privately placed, rated or unrated, mortgage pass-through transaction,
retaining the Company as "servicer" (with or without a master servicer)
thereunder.
Person: Any individual, corporation, limited liability company,
------
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
----------
by a Qualified Insurer, as required by this Agreement with respect to certain
Mortgage Loans.
Prepayment Interest Shortfall Amount: With respect to any Mortgage
------------------------------------
Loan that was subject to a Principal Prepayment in full or in part during any
Principal Prepayment Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan's Due Date in such Due Period, the
amount of interest (net the related Servicing Fee) that would have accrued on
the amount of such Principal Prepayment during the period commencing on the
date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
Prepayment Penalty: With respect to each Mortgage Loan, the
------------------
penalty if the mortgagor prepays such Mortgage Loan during the first three
(3) years after origination thereof as provided in the related Mortgage Note
or Mortgage.
Prime Rate: The prime rate announced to be in effect from time to
----------
time, as published as the average rate in The Wall Street Journal.
--- ---- ------ -------
Principal Prepayment: Any payment or other recovery of principal
--------------------
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
Principal Prepayment Period: The month preceding the month in
---------------------------
which the related Remittance Date occurs.
Purchaser: Lehman Capital, A Division of Lehman Brothers Holdings
---------
Inc. or its successor in interest or any successor to the Purchaser under
this Agreement as herein provided.
Qualified Depository: A depository the accounts of which are
--------------------
insured by the FDIC through the BIF or the SAIF and the debt obligations of
which are rated AA or better by Standard & Poor's, provided, however, that
prior to a Pass-through Transfer, California Federal Bank, a Federal Savings
Bank shall be deemed a "Qualified Depository" and from and after a Pass-
through Transfer, California Federal Bank, a Federal Savings Bank shall be
deemed a "Qualified Depository." only if it is acceptable to the Rating
Agencies which are rating such Pass-through Transfer.
Qualified Insurer: A mortgage guaranty insurance company duly
-----------------
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by FNMA or FHLMC.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to
----------------------------------
be substituted by the Company for a Deleted Mortgage Loan which must, on the
date of such substitution, (i) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution (or in
the case of a substitution of more than one mortgage loan for a Deleted
Mortgage Loan, an aggregate principal balance), not in excess of the Stated
Principal Balance of the Deleted Mortgage Loan; (ii) have a Mortgage Loan
Remittance Rate not less than and not more than 2% greater than the Mortgage
Loan Remittance Rate of the Deleted Mortgage Loan; (iii) have a remaining
term to maturity not greater than and not more than one year less than that
of the Deleted Mortgage Loan; (iv) comply with each representation and
warranty set forth in Sections 3.01 and 3.02; and (v) has a Loan-to-Value
Ratio as of the date of such substitution not greater than that of the
related Deleted Mortgage Loan.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, Duff
-------------
& Phelps or their respective successors designated by the Purchaser.
Reconstitution Agreements: The agreement or agreements entered
____________________________________
into by the Purchaser, the Company (if applicable) and certain third parties
on the Reconstitution Date(s) with respect to any or all of the Mortgage
Loans serviced hereunder, in connection with a Pass-Through Transfer as set
forth in Section 7.01, including, but not limited to, a Pooling and Servicing
Agreement, a Trust Agreement, and/or a subservicing/master servicing
agreement and related custodial/trust agreement and related documents with
respect to a Pass-Through Transfer. The form of relevant Reconstitution
Agreement to be entered into by the Purchaser and/or master servicer or
trustee and the Company with respect to Pass-Through Transfers shall be
reasonably satisfactory in form and substance to the Purchaser and the
Company (giving due regard to any rating or master servicing requirements)
and the representations and warranties and servicing provisions contained
therein shall be substantially similar to those contained in this Agreement,
unless otherwise mutually agreed by the parties; provided, however, that the
Company shall not be required to make any additional representations or
warranties thereafter or to update or bring-down any representation and
warranties contained herein, except the representations and warranties set
forth in Section 3.01 herein, and the Company shall be entitled to receive
the same servicing compensation as is provided in Section 6.04 following the
related Reconstitution Date.
Reconstitution Date: The date or dates on which any or all of the
-------------------
Mortgage Loans serviced under this Agreement shall be subject to a
Pass-Through Transfer pursuant to Section 7.01 hereof.
Record Date: The close of business of the last Business Day of the
-----------
month preceding the month of the related Remittance Date.
REMIC: A "real estate mortgage investment conduit" within the
-----
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
----------------
relating to a REMIC, which appear at Section 860A through 86OG of Subchapter
M of Chapter 1, Subtitle A of the Code, and related provisions, and
regulations, rulings or pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time.
Remittance Date: The 18th day (or if such 18th day is not a
---------------
Business Day, the first Business Day immediately following) of any month,
beginning with the First Remittance Date.
REO Disposition: The final sale by the Company of any REO
---------------
Property.
REO Disposition Proceeds: All amounts received with respect to an
------------------------
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on
------------
behalf of the Purchasers through foreclosure or by deed in lieu of
foreclosure, as described in Section 4.16.
Repurchase Price: With respect to any Mortgage Loan, a price equal
----------------
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest
on such Stated Principal Balance at the Mortgage Loan Remittance Rate from
the date on which interest has last been paid and distributed to the
Purchaser to the date of repurchase, less amounts received or advanced in
respect of such repurchased Mortgage Loan which are being held in the
Custodial Account for distribution in the month of repurchase.
Notwithstanding the foregoing, if the date of repurchase is on a date other
than the last day of a Prepayment Period, then the Company shall pay, in lieu
of the interest specified in clause (ii) above, interest at the Mortgage Loan
Remittance Rate from the date on which interest has last been paid and
distributed to the Purchaser through the last day of the Prepayment Period.
SAIF: The Savings Association Insurance Fund, or any successor
----
thereto.
Securities Act of 1933 or the 1933 Act: The Securities Act of
--------------------------------------
1933, as amended.
Servicing Advances: All customary, reasonable and necessary "out
------------------
of pocket" costs and expenses other than Monthly Advances (including
reasonable attorneys' fees and disbursements) incurred in the performance by
the Company of its servicing obligations, including, but not limited to, the
cost of (a) the preservation, restoration and protection of the Mortgaged
Property, (b) any enforcement or judicial proceedings, including
foreclosures, (c) the management and liquidation of any REO Property and (d)
compliance with the obligations under Section 4.08.
Servicing Fee: With respect to each Mortgage Loan or REO Property,
-------------
the amount of the monthly fee the Purchaser shall pay to the Company, which
shall, for a period of one full month, be equal to one-twelfth of the product
of (a) the Servicing Fee Rate and (b) the outstanding principal balance of
such Mortgage Loan or with respect to an REO Property, the outstanding
principal balance of the related Mortgage Loan immediately prior to its
conversion to REO Property, reduced by any amount applied as a reduction of
principal on the related Mortgage Loan in connection with such conversion.
Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on
a Mortgage Loan is computed. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by Section 4.05) of each
Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
Servicing Fee Rate: With respect to each Mortgage Loan with an
------------------
original term to maturity of 15 years, the Servicing Fee Rate shall equal a
rate per annum equal to the Mortgage Interest Rate minus 6.75%, provided
that, such rate shall not exceed 0.50% per annum or be less than 0.25% per
annum. With respect to each Mortgage Loan with an original term to maturity
of 30 years, the Servicing Fee Rate shall equal a rate per annum equal to the
Mortgage Interest Rate minus 7.00%, provided that, such rate shall not exceed
0.50% per annum or be less than 0.25% per annum.
Servicing File: With respect to each Mortgage Loan, the file
--------------
retained by the Company consisting of the items set forth on Exhibit B-2
attached hereto.
Servicing Officer: Any officer of the Company involved in or
-----------------
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
Standard & Poor's: Standard & Poor's Ratings Services, or its
-----------------
successor in interest.
Stated Principal Balance: As to each Mortgage Loan, and
------------------------
Determination Date (i) the principal balance of the Mortgage Loan at the Cut-
off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously distributed
to the Purchaser with respect to the related Mortgage Loan representing
payments or recoveries of principal and all Monthly Advances in lieu thereof.
Subservicer: Any Subservicer which is subservicing the Mortgage
-----------
Loans pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 4.01.
Subservicing Agreement: An agreement between the Company and a
----------------------
Subservicer for the servicing of the Mortgage Loans.
Trust Agreement: The Trust Agreement dated as of November 1, 1997
---------------
between the Depositor and the Trustee.
Trustee: The person designated as "Trustee" under the Trust
-------
Agreement, or its successor in interest or assigns.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
-----------------------------------------------------------
BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
-------------------------------------------------------------
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage
----------------------------------------------------
Files; Maintenance of Servicing Files.
----- -------------------------------
The Company, simultaneously with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and convey to the
Purchaser, without recourse, but subject to the terms of this Agreement, all
the right, title and interest of the Company in and to the Mortgage Loans,
including all interest and principal received on or with respect to the
Mortgage Loans (other than payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date). Pursuant to Section 2.03, the
Company has delivered the Mortgage Loan Documents to the Custodian.
The contents of each Servicing File are and shall be held in trust
by the Company for the benefit of the Purchaser as the owner thereof. The
possession of each Servicing File by the Company is at the will of the
Purchaser for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company is in a custodial capacity only.
Upon the sale of the Mortgage Loans the ownership of each Mortgage Note, the
related Mortgage and the related Mortgage File and Servicing File shall vest
immediately in the Purchaser, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Company shall vest immediately in the Purchaser and shall
be retained and maintained by the Company, in trust, at the will of the
Purchaser and only in such custodial capacity. Each Servicing File shall be
marked and identified as owned by the Purchaser and shall be easily retrieved
from other servicing files for mortgage loans which are not the Mortgage
Loans. The Company shall release its custody of the contents of any
Servicing File only in accordance with written instructions from the
Purchaser, unless such release is required as incidental to the Company's
servicing of the Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan pursuant to Section 3.03 or 6.02.
Section 2.02 Books and Records; Transfers of Mortgage Loans.
----------------------------------------------
From and after the sale of the Mortgage Loans to the Purchaser all
rights arising out of the Mortgage Loans including but not limited to all
funds received by the Company on or in connection with the Mortgage Loans,
shall be received and held by the Company in trust for the benefit of the
Purchaser as owner of the Mortgage Loans, and the Company may, at the option
of the Purchaser retain record title to the related Mortgages for the sole
purpose of facilitating the servicing and the supervision of the servicing of
the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the
Company. The Company shall be responsible for maintaining, and shall
maintain books and records for each Mortgage Loan, which may be in the form
of electronic media, and shall be marked clearly to reflect the ownership of
each Mortgage Loan by the Purchaser. To the extent that original documents
are not required for purposes of realization of Liquidation Proceeds or
Insurance Proceeds, documents maintained by the Company may be in the form of
microfilm or microfiche or such other reliable means of recreating
original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of
the FNMA Selling and Servicing Guide, as amended from time to time.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the
Company shall note on its books and records any transfers of Mortgage Loans.
No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Company shall be under no obligation to deal with any person with respect to
this agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Purchaser may, subject to the
terms of this Agreement, sell and transfer one or more of the Mortgage Loans,
provided, however, that (i) the transferee will not be deemed to be a
- -------- -------
Purchaser hereunder binding upon the Company unless such transferee shall
agree in writing to be bound by the terms of this Agreement and a copy of the
instrument of transfer or assignment and assumption agreement executed by the
transferring Purchaser and by the transferee Purchaser shall have been
delivered to the Company; and (ii) no more than four (4) Persons at any given
time may have the status of "Purchaser" hereunder, unless otherwise consented
to by the Company, which consent shall not be unreasonably withheld. The
Purchaser also shall advise the Company of the transfer. Upon receipt of
notice of the transfer, the Company shall mark its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall
release the previous Purchaser from its obligations hereunder with respect to
the Mortgage Loans sold or transferred.
Section 2.03 Custodial Agreement: Delivery of Documents.
-------------------------------------------
Pursuant to the Custodial Agreement delivered to the Purchaser
contemporaneously with the delivery of this Agreement, the Company shall
deliver and release to the Custodian, at least four (4) Business Days prior
to the Closing Date, those Mortgage Loan Documents as set forth on Exhibit B-
1.
The Custodian has certified its receipt of all such Mortgage Loan
Documents as evidenced by the Initial Certification of the Custodian in the
form annexed to the Custodial Agreement.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within 30
days of their execution, provided, however, that the Company shall provide to
the Custodian with a certified true copy certified by a servicing officer of
the Company of any such document submitted for recordation within 30 days of
its execution, and shall provide the original of any document submitted for
recordation within thirty days of receipt of such original recorded document
from the relevant public recording office.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
-------------------------------
REMEDIES AND BREACH
-------------------
Section 3.01 Company Representations and Warranties.
The Company represents and warrants to the Purchaser that as of the
Closing Date:
(a) Due Organization and Authority. The Company is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted
by the Company, and in any event the Company is in compliance with the laws
of any such state to the extent necessary to ensure the enforceability of the
related Mortgage Loan and the servicing of such Mortgage Loan in accordance
with the terms of this Agreement; the Company has the full corporate power
and authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Company; and
all requisite corporate action has been taken by the Company to make this
Agreement valid and binding upon the Company in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
---------------------------
transactions contemplated by this Agreement are in the ordinary course of
business of the Company, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Company pursuant to this Agreement
are not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
------------
Agreement, the acquisition of the Mortgage Loans by the Company, the sale of
the Mortgage Loans to the Purchaser or the transactions contemplated hereby,
nor the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Company's charter or by-laws or any legal
restriction or any agreement or instrument to which the Company is now a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company or its
property is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability to Service. The Company is an approved
------------------
seller/servicer of conventional residential mortgage loans for FNMA or FHLMC,
with the facilities, procedures, and experienced personnel necessary for the
sound servicing of mortgage loans of the same type as the Mortgage Loans.
The Company is in good standing to sell mortgage loans to and service
mortgage loans for FNMA or FHLMC, and no event has occurred, including but
not limited to a change in insurance coverage, which would make the Company
unable to comply with FNMA or FHLMC eligibility requirements or which
would require notification to either FNMA or FHLMC;
(e) Reasonable Servicing Fee. The Company acknowledges and agrees
------------------------
that the Servicing Fee, as calculated at the Servicing Fee Rate, represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the
Mortgage Loans pursuant to this Agreement;
(f) Ability to Perform. The Company does not believe, nor does
------------------
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Company is solvent and the sale of
the Mortgage Loans is not undertaken to hinder, delay or defraud any of the
Company's creditors;
(g) No Litigation Pending. There is no action, suit, proceeding
---------------------
or investigation pending or threatened against the Company which, either in
any one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or assets
of the Company, or in any material impairment of the right or ability of the
Company to carry on its business substantially as now conducted, or in any
material liability on the part of the Company, or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the Company
contemplated herein, or which would be likely to impair materially the
ability of the Company to perform under the terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
-------------------
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Company of or compliance by the
Company with this Agreement or the sale of the Mortgage Loans as evidenced by
the consummation of the transactions contemplated by this Agreement, or if
required, such approval has been obtained prior to the Closing Date;
(i) Selection Process. The Mortgage Loans were selected from
-----------------
among the outstanding fixed rate one- to four- family mortgage loans in the
Company's portfolio at the Closing Date as to which the representations and
warranties set forth in Section 3.02 could be made and such selection was not
made in a manner so as to affect adversely the interests of the Purchaser;
(j) No Untrue Information. Neither this Agreement nor any
---------------------
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of material fact or omits to state a fact
necessary to make the statements contained therein not misleading in any
material respect;
(k) Sale Treatment. The Company has determined that the
--------------
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes;
(l) Financial Statements. The Company has delivered to the
--------------------
Purchaser financial statements as to its last three complete fiscal years and
any later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent
results of operations and changes in financial position at the end of
each such period of the Company and its subsidiaries and have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in
the notes thereto. There has been no change in the business, operations,
financial condition, properties or assets of the Company since the date of
the Company's financial statements that would have a material adverse effect
on its ability to perform its obligations under this Agreement;
(m) No Brokers' Fees. The Company has not dealt with any broker,
----------------
investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
and
(n) Fair Consideration. The consideration received by the Company
------------------
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
---------------------------------------------------
Mortgage Loans.
- --------------
As to each Mortgage Loan, the Company hereby represents and
warrants to the Purchaser that as of the Closing Date:
(a) Mortgage Loans as Described. The information set forth in the
---------------------------
Mortgage Loan Schedule is complete, true and correct in all material respects
as of the date specified in the Mortgage Loan Schedule.;
(b) Payments Current. All payments required to be made up to and
----------------
including October 1, 1997 for the Mortgage Loan under the terms of the
Mortgage Note have been made and credited. No payment required under the
Mortgage Loan has been delinquent at any time since the date the Mortgage
Loan was originated, with the exception of one delinquent Monthly Payment
with respect to the Mortgage Loans identified by numbers 8237984 and 8268955;
(c) No Outstanding Charges. There are no defaults in complying
----------------------
with the terms of the Mortgages, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid prior to
any termination or penalty therefore, or an escrow of funds has been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The
Company has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is greater, to the day
which precedes by one month the Due Date of the first installment of
principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
-------------------------
Mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to
protect the interests of the holder of the Mortgage Loan, and which has been
delivered to the Custodian. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy
and the title insurer, to the extent required by the policy, and its
terms are reflected on the Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement
is part of the Mortgage Loan File delivered to the Custodian and the terms of
which are reflected in the Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Note and the Mortgage are not
-----------
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, nor will the operation of
any of the terms of the Mortgage Note or the Mortgage, or the exercise of any
right thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including without limitation the defense of
usury, and no such right of rescission, set-off, counterclaim or defense has
been asserted with respect thereto, and no Mortgagor was a debtor in any
state or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
----------------
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located pursuant to insurance policies conforming to
the requirements of Section 4.10. If upon origination of the Mortgage Loan,
the Mortgaged Property was in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available) a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
Section 4.10. All individual insurance policies contain a standard mortgagee
clause naming the Company and its successors and assigns as mortgagee, and
all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost
and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to obtain and maintain such insurance at such Mortgagor's
cost and expense, and to seek reimbursement therefor from the Mortgagor.
Where required by state law or regulation, the Mortgagor has been given an
opportunity to choose the carrier of the required hazard insurance, provided
the policy is not a "master" or "blanket" hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance
policy is the valid and binding obligation of the insurer, is in full force
and effect, and will be in full force and effect and inure to the benefit of
the Purchaser upon the consummation of the transactions contemplated by this
Agreement. The Company has not engaged in, and has no knowledge of the
Mortgagor's or any Subservicer's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such
unlawful items have been received, retained or realized by the Company;
(g) Compliance with Applicable Laws. Any and all requirements of
-------------------------------
any federal, state or local law including, without limitation, usury, truth-
in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage
Loan have been complied with, and the Company shall maintain in its
possession, available for the Purchaser's inspection, and shall deliver
to the Purchaser upon demand, evidence of compliance with all such
requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
---------------------------
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. The Company has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in
default, nor has the Company waived any default resulting from any action or
inaction by the Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged
---------------------------------------
Property is located in the state identified in the Mortgage Loan Schedule and
consists of a parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual unit in
a planned unit development, provided, however, that any condominium project
or planned unit development shall conform with the applicable underwriting
standards of the Seller which were in place at the time of the origination of
such Mortgage Loan, and no residence or dwelling is a mobile home or a
manufactured dwelling. As of origination, no portion of the Mortgaged
Property was used for commercial purposes;
(j) Valid First Lien. The Mortgage is a valid, subsisting and
----------------
enforceable and perfected first lien on the Mortgaged Property. The lien of
the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (i) referred to or
to otherwise considered in the appraisal made for the originator of the
Mortgage Loan or (ii) which do not adversely affect the Appraised Value
of the Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Mortgage Loan establishes and creates a
valid, subsisting and enforceable first lien and first priority security
interest on the property described therein and the Company has full right to
sell and assign the same to the Purchaser. The Mortgaged Property was not,
as of the date of origination of the Mortgage Loan, subject to a mortgage,
deed of trust, deed to secured debt or other security instrument creating a
lien subordinate to the lien of the Mortgage;
(k) Pool Characteristics. As of the Cut-off Date, with respect to
--------------------
aggregate outstanding principal balance of all Mortgage Loans, (a) no more
than 0.9% are secured by real property improved by two- to four-family
dwellings, (b) no more than 4.6% are secured by real property improved by
individual condominium units, (c) no more than 18.1% are secured by real
property improved by an individual unit in a planned unit development, and
(d) at least 76.4% are secured by real property with a detached one-family
residence erected thereon. When measured by principal balance as of the Cut-
off Date, no more than 2.6% of the Mortgage Loans are secured by Mortgaged
Properties located in the same United States postal zip code; the Mortgage
Loans have a weighed average remaining term of 326 months. The average
principal balance of the Mortgage Loans on the Cut-off Date was $330,542. As
of the Cut-off Date, the Mortgage Loans have a weighted average FICO score of
735. As of the Cut-off Date, with respect to the aggregate unpaid principal
balance of the Mortgage Loans; (i) no more than 15.1% were originated
pursuant to the Seller's reduced documentation program; and (ii) at least
84.9% of the Mortgage Loans were originated under a full documentation
program. With respect to the aggregate unpaid balance of the Mortgage Loans
as of the Cut-off Date, and the occupancy status of the related Mortgaged
Properties at the time of origination, (i) not more than 0.7% of the
Mortgaged Properties were owner-occupied second homes; (ii) not more than
0.1% of the Mortgaged Properties were investor properties; and (iii) at
least 99.3% of the Mortgaged Properties were owner-occupied primary
residences. With respect to the aggregate unpaid principal balance of all the
Mortgage Loans as of the Cut-off Date, the Mortgaged Properties are located
as follows (i) 93.9% are located in California, with the remaining 6.1% being
geographically dispersed.
(l) Validity of Mortgage Documents. The Mortgage Note and the
------------------------------
Mortgage are genuine, and each is the legal, valid and binding obligation of
the maker thereof enforceable in accordance with its terms. All parties to
the Mortgage Note and the Mortgage and any other related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage and any other related agreement, and the
Mortgage Note and the Mortgage have been duly and properly executed by such
parties. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material
fact or omit to state a material fact required to be stated therein or
necessary to make the information and statements therein not misleading. No
fraud was committed in connection with the origination of the Mortgage Loan;
(m) Full Disbursement of Proceeds. The proceeds of the Mortgage
-----------------------------
Loan have been fully disbursed and there is no requirement for future
advances thereunder, and any and all requirements as to completion of any on-
site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with, provided that, with respect to improvements
which can not be made as of the origination date because of weather related
reasons, an escrow fund sufficient to make such improvements is held by the
Company. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is not entitled to any refund of any amounts paid or due under the Mortgage
Note or Mortgage;
(n) Ownership. The Company is the sole owner of record and holder
---------
of the Mortgage Loan. The Mortgage Loan is not assigned or pledged, and the
Company has good and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan therein to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to this Agreement;
(o) Doing Business. All parties which have had any interest in
--------------
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located, and (2)
either (a) organized under the laws of such state, or (b) qualified to do
business in such state, or (c) federal savings and loan associations or
national banks having principal offices in such state, or (d) not doing
business in such state;
(p) LTV, PMI Policy. No Mortgage Loan has a LTV equal to or
---------------
greater than 95%. The original LTV of the Mortgage Loan either was not more
than 80% or there is a PMI Policy in effect which shall insure payment
defaults and which satisfies all of FNMA's requirements therefore and such
PMI Policy is issued by a primary mortgage insurer having a claims paying
ability rate acceptable to FNMA until the loan-to-value ratio of such
Mortgage Loan is reduced to 80%. All provisions of such PMI Policy have been
and are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject
to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI Policy
and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the Mortgage Loan
Schedule is net of any such insurance premium;
(q) Title Insurance. The Mortgage Loan is covered by either (i)
---------------
an attorney's opinion of title and abstract of title the form and substance
of which is acceptable to mortgage lending institutions making mortgage loans
in the area where the Mortgaged Property is located or (ii) an ALTA lender's
title insurance policy or other generally acceptable form of policy of
insurance acceptable to FNMA or FHLMC, issued by a title insurer acceptable
to FNMA or FHLMC and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Company, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of paragraph (j) of this Section 3.02
and against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the mortgage providing for adjustment
to the Mortgage Interest Rate and Monthly Payment. Where required by state
law or regulation, the Mortgagor has been given the opportunity to choose the
carrier of the required mortgage title insurance. Additionally, such
lender's title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any interest
therein. The Company is the sole insured of such lender's title insurance
policy, and such lender's title insurance policy is in full force and effect
and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the Mortgage, including the
Company, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy including without
limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such
unlawful items have been received, retained or realized by the Company;
(r) No Defaults. There is no default, breach, violation or event
-----------
of acceleration existing under the Mortgage or the 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 neither the Company nor its predecessors have waived any
default, breach, violation or event of acceleration;
(s) No Mechanics' Liens. There are no mechanics' or similar liens
-------------------
or claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to, or equal
or coordinate with, the lien of the related Mortgage;
(t) Location of Improvements; No Encroachments. All improvements
------------------------------------------
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(u) Origination: Payment Terms. At the time the Mortgage Loan
---------------------------
was originated, the originator was a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act or a savings and loan association, a savings bank, a
commercial bank or similar banking institution which was supervised and
examined by a Federal or State authority or a mortgage banker or broker
licensed or authorized to do business in the jurisdiction in which the
related Mortgaged Property is located, applying the same standards and
procedures used by the Company in originating Mortgage Loans directly. The
Mortgage Interest Rate is fixed. The Mortgage Note is payable on the first
day of each month in equal monthly installments of principal and interest,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization, with a principal
balance at origination of no more than $999,999 and no less than $31,500, and
a Stated Principal Balance of at least $31,114. Each Mortgage Loan has a
Mortgage Interest Rate of not less than 6.75% and not more than 8.75%. The
stated remaining term of the Mortgage Loan is between 172 and 360 months;
(v) Customary Provisions. The Mortgage contains customary and
--------------------
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby, including, (i) in the case of
a Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. Upon default by a Mortgagor on a Mortgage
Loan and foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan will be
able to deliver good and merchantable title to the Mortgaged Property. There
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale
or the right to foreclose the Mortgage;
(w) Conformance with Underwriting Standards. The Mortgage Loans
---------------------------------------
were underwritten either in accordance with the Seller's underwriting
guidelines at the time that the Mortgage Loan was originated or in general
accordance with prudent secondary market standard underwriting guidelines.
(x) Occupancy of the Mortgaged Property. As of the origination
-----------------------------------
date the Mortgaged Property was lawfully occupied under applicable law. As
of the origination date, all inspections, licenses and certificates required
by applicable law to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities if required by such authorities for the use and occupancy of the
Mortgaged Property.
(y) No Additional Collateral. The Mortgage Note is not and has
------------------------
not been secured by any collateral except the lien of the corresponding
Mortgage and the security interest of any applicable security agreement or
chattel mortgage referred to in (j) above;
(z) Deeds of Trust. In the event the Mortgage constitutes a deed
--------------
of trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the
Purchasers to the trustee under the deed of trust, except in connection with
a trustee's sale after default by the Mortgagor;
(aa) Acceptable Investment. The Company has no knowledge of any
---------------------
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that can
reasonably be expected to cause private institutional investors to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to
become delinquent, or adversely affect the value or marketability of the
Mortgage Loan;
(bb) Delivery of Mortgage Documents. The Mortgage Note, the
------------------------------
Mortgage, the Assignment of Mortgage and any other documents set forth in
Exhibit B-1 have been delivered to the Custodian. The Company is in
possession of a complete, true and accurate Mortgage File in compliance with
Exhibit B-1, except for such documents the originals of which have been
delivered to the Custodian;
(cc) Condominiums/Planned Unit Developments. If the Mortgaged
--------------------------------------
Property is a condominium unit or a planned unit development (other than a de
minimus planned unit development) such condominium or planned unit
development project meets the Company's underwriting guidelines.
(dd) Transfer of Mortgage Loans. The Assignment of Mortgage is in
--------------------------
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(ee) Due on Sale. The Mortgage contains an enforceable provision
-----------
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder;
(ff) No Buydown Provisions; No Graduated Payments or Contingent
----------------------------------------------------------
Interests. The Mortgage Loan does not contain provisions pursuant to which
- ---------
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by the Company, the Mortgagor or anyone on
behalf of the Mortgagor, or paid by any source other than the Mortgagor
nor does it contain any other similar provisions currently in effect
which may constitute a "buydown" provision. The Mortgage Loan is not a
graduated payment mortgage loan and the Mortgage Loan does not have a
shared appreciation or other contingent interest feature;
(gg) Consolidation of Future Advances. Any future advances made
--------------------------------
prior to the Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as consolidated, bears a single interest rate and single repayment term. The
lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or
by other title evidence acceptable to FNMA and FHLMC. The consolidated
principal amount does not exceed the original principal amount of the
Mortgage Loan;
(hh) Mortgaged Property Undamaged. There is no proceeding, pending
----------------------------
or threatened, for the total or partial condemnation of the Mortgaged
Property. The Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage
Loan or the use for which the premises were intended;
(ii) Collection Practices; Escrow Deposits. The origination and
-------------------------------------
collection practices used with respect to the Mortgage Loan have been in
accordance with Accepted Servicing Practices, and have been in all respects
in compliance with all applicable laws and regulations. With respect to
Mortgage Loans for which an Escrow Account is established, all escrow
deposits and Escrow Payments are in the possession of the Company and there
exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. With respect to
Mortgage Loans for which an Escrow Account is established, all Escrow
Payments have been collected in full compliance with state and federal law.
With respect to Mortgage Loans for which an Escrow Account is established, an
escrow of funds is not prohibited by applicable law and has been established
in an amount sufficient to pay for every item which remains unpaid and has
been assessed, but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Company have been capitalized
under the Mortgage or the Mortgage Note;
(jj) Appraisal. The Mortgage File contains an appraisal of the
---------
related Mortgage Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly appointed by the Company, who had
no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof; and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of Title XI of the Federal Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was originated;
(kk) Soldiers' and Sailors' Relief Act. The Mortgagor has not
---------------------------------
notified the Company, and the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the Soldiers' and Sailors' Civil
Relief Act of 1940;
(ll) Environmental Matters. To the Company's knowledge, the
---------------------
Mortgaged Property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law,
rule or regulation. To the Company's knowledge, there is no pending action or
proceeding directly involving any Mortgaged Property of which the Company is
aware in which compliance with any environmental law, rule or regulation is
an issue; and to the best of the Company's knowledge, nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation consisting a prerequisite to use and enjoyment of said property;
(mm) Prepayment Penalties. Each Mortgage Loan contains a
--------------------
Prepayment Penalty in an amount as specified in the related Mortgage Loan
Documents. The Prepayment Penalty shall be in effect for the first three
years after the origination date of each Mortgage Loan.
(nn) No Construction Loans. No Mortgage Loan was made in
---------------------
connection with (i) the construction or rehabilitation of a Mortgaged
Property or (ii) facilitating the trade-in or exchange of a Mortgaged
Property; (oo) No Denial of Insurance. No action, inaction, or event has
----------------------
occurred and no state of fact exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable pool insurance policy, special hazard insurance policy, PMI Policy
or bankruptcy bond, irrespective of the cause of such failure of coverage.
In connection with the placement of any such insurance, no unlawful
commission, fee, or other compensation has been or will be received by the
Company or any designee of the Company or any corporation in which the
Company had a financial interest at the time of placement of such insurance;
and
(pp) Regarding the Mortgagor. The Mortgagor is one or more natural
-----------------------
persons and/or trustees for an Illinois land trust or a trustee under a
"living trust" and such "living trust" is in compliance with FNMA guidelines
for such trusts.
Section 3.03 Remedies for Breach of Representations and Warranties.
-----------------------------------------------------
It is understood and agreed that the representations and warranties
set forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage
Loans to the Purchaser and the delivery of the Mortgage Loan Documents to the
Custodian 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 or failure to examine any Mortgage File. Upon
discovery by either the Company or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser
therein, or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan (in the case of any of the foregoing,
a "Breach"), the party discovering such Breach shall give prompt written
------
notice to the other. In the event that the title policy insuring the lien of
any Mortgage does not run to the benefit of the Purchaser and its successors
and assigns; upon notice thereof, the Company shall pay for any necessary
title policy endorsement to provide that such title policy covers the
purchase and its successors and assigns.
Within 60 days of the earlier of either discovery by or notice to
the Company of any Breach of a representation or warranty, the Company
shall use its best efforts promptly to cure such Breach in all material
respects and, if such Breach cannot be cured, the Company shall,
at the Purchaser's option, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a Breach shall involve any
representation or warranty set forth in Section 3.01, and such
Breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Company of such Breach, all of the affected
Mortgage Loans shall, at the Purchaser's option, be repurchased by the
Company at the Repurchase Price. However, if the Breach shall involve a
representation or warranty set forth in Section 3.02 and the Company
discovers or receives notice of any such Breach within two years of the
Closing Date, the Company shall, at the Company's option, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan (a
"Deleted Mortgage Loan") and substitute in its place a Qualified Substitute
---------------------
Mortgage Loan or Loans, provided that any such substitution shall be effected
not later than two years after the Closing Date. Notwithstanding the
foregoing, no such substitution shall be made unless the Purchaser has
received an Opinion of Counsel (at the expense of the Company) that such
substitution will not adversely affect the status of any REMIC established in
connection with a Pass-Through Transfer as a REMIC or cause any such REMIC to
be deemed to have engaged in a "prohibited transaction" under the REMIC
provisions. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 3.03 shall be accomplished by deposit in
the Custodial Account of the amount of the Repurchase Price for distribution
to Purchaser on the next scheduled Remittance Date, after deducting therefrom
any amount received in respect of such repurchased Mortgage Loan or Loans and
being held in the Custodial Account for future distribution.
At the time of repurchase or substitution, the Purchaser and the
Company shall arrange for the reassignment of the Deleted Mortgage Loan to
the Company and the delivery to the Company of any documents held by the
Custodian relating to the Deleted Mortgage Loan. In the event of a
repurchase or substitution, the Company shall, simultaneously with such
reassignment, give written notice to the Purchaser that such repurchase or
substitution has taken place, amend the Mortgage Loan Schedule to reflect the
withdrawal of the Deleted Mortgage Loan from this Agreement, and, in the case
of substitution, identify a Qualified Substitute Mortgage Loan and amend the
Mortgage Loan Schedule to reflect the addition of such Qualified Substitute
Mortgage Loan to this Agreement. In connection with any such substitution,
the Company shall be deemed to have made as to such Qualified Substitute
Mortgage Loan the representations and warranties set forth in this Agreement
except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. The
Company shall effect such substitution by delivering to the Custodian for
such Qualified Substitute Mortgage Loan the documents required by Section
2.03, with the Mortgage Note endorsed as required by Section 2.03. No
substitution will be made in any calendar month after the Determination Date
for such month. The Company shall deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan or Loans in the month following the date of such substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the month of substitution shall be retained by the Company. For the month
of substitution, distributions to Purchaser shall include the Monthly Payment
due on any Deleted Mortgage Loan in the month of substitution, and the
Company shall thereafter be entitled to retain all amounts subsequently
received by the Company in respect of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, the Company shall
determine the amount (if any) by which the aggregate principal balance of
all Qualified Substitute Mortgage Loans as of the date of substitution
is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans (after application of scheduled principal payments due in
the month of substitution). The amount of such shortfall shall be
distributed by the Company in the month of substitution pursuant to
Section 5.01. Accordingly, on the date of such substitution, the
Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
It is understood and agreed that the obligations of the Company set
forth in this Section 3.03 to cure, substitute for or repurchase a defective
Mortgage Loan constitute the sole remedies of the Purchaser respecting a
Breach of the representations and warranties contained in Sections 3.01 and
3.02.
Any cause of action against the Company relating to or arising out
of the Breach of any representations and warranties made in Sections 3.01 and
3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such Breach
by the Purchaser or notice thereof by the Company to the Purchaser, (ii)
failures by the Company to cure such Breach or repurchase such Mortgage Loan
as specified above, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
Section 3.04 Restrictions and Requirements Applicable in the
-----------------------------------------------
Event that a Mortgage Loan is Acquired by a REMIC.
- --------------------------------------------------
In the event that any Mortgage Loan is held by a REMIC,
notwithstanding any contrary provision of this Agreement, the following
provisions shall apply:
The Company shall dispose of any REO Property as soon as possible
and shall sell such REO Property in any event within three years after title
has been taken to such REO Property, unless (i) the Master Servicer and the
Company shall have been supplied with an Opinion of Counsel to the effect
that the holding by the REMIC of such Mortgaged Property subsequent to such
three-year period (and specifying the period beyond such three-year period
for which the Mortgaged Property may be held) will not result in the
imposition of taxes on "prohibited transactions" of the REMIC as defined in
Section 860F of the Code, or cause the REMIC to fail to qualify as a REMIC,
in which case the REMIC may continue to hold such Mortgaged Property (subject
to any conditions contained in such Opinion of Counsel), or (ii) the Master
Servicer or the Company shall have applied for, prior to the expiration of
such three-year period, an extension of such three-year period in the manner
contemplated by Section 856(e)(3) of the Code, in which case the three-year
period shall be extended by the applicable period. If a period longer than
three years is permitted under the foregoing sentence and is necessary to
sell any REO Property, the Company shall report monthly to the Master
Servicer as to the progress being made in selling such REO Property.
Notwithstanding any other provision of this Agreement, no Mortgaged
Property held by a REMIC shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
REMIC or sold in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify at any time as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, (ii) subject
the REMIC to the imposition of any federal or state income taxes on "net
income from foreclosure property" with respect to such Mortgaged Property
within the meaning of 860G(c) of the Code, or (iii) cause the sale of such
Mortgaged Property to result in the receipt by the Trust of any income from
non-permitted assets as described in section 860F(a)(2)(B) of the Code,
unless the Company has agreed to indemnify and hold harmless the Trust with
respect to the imposition of any taxes.
Section 3.05 Repurchase of Delinquent Mortgage Loans
---------------------------------------
The Company, at its option, may (but is not obligated to)
repurchase from the Purchaser, on any date during a Prepayment Period, (a)
any Mortgage Loan that is delinquent in payment by three or more Monthly
Payments or (b) any Mortgage Loan with respect to which there has been
initiated legal action or other proceedings for the foreclosure of the
related Mortgaged Property either judicially or non-judicially. If it elects
to make any such repurchase, the Company shall repurchase such Mortgage Loan
with its own funds at a price equal to the Repurchase Price for such Mortgage
Loan.
Section 3.06 Repurchase of REO Properties
----------------------------
The Company, at its option, may (but is not obligated to)
repurchase from the Purchaser, on any date during a Prepayment Period any REO
Property. If it elects to make any such repurchase, the Company shall
purchase such REO Property with its own funds at a price equal to the
then fair market value for such REO Property, calculated on the basis of
the average of two independent appraisals (obtained at the expense of the
Company) of such REO Property.
Section 3.07 Purchaser Representations and Warranties.
----------------------------------------
The Purchaser represents and warrants to the Company that as of the
Closing Date:
(a) Due Organization and Authority. The Purchaser is a
------------------------------
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all licenses necessary to carry on its
business as now being conducted; the Purchaser has the full corporate power
and authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this
Agreement by the Purchaser and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Purchaser; and
all requisite corporate action has been taken by the Purchaser to make this
Agreement valid and binding upon the Purchaser in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
---------------------------
transactions contemplated by this Agreement are in the ordinary course of
business of the Purchaser, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Purchaser pursuant to this Agreement
are not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
------------
Agreement, the acquisition of the Mortgage Loans by the Purchaser, or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the Purchaser's
charter or by-laws or any legal restriction or any agreement or instrument to
which the Purchaser is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Purchaser or its property is subject;
(d) Ability to Perform. The Purchaser does not believe, nor does
------------------
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Purchaser is solvent and the sale
of the Mortgage Loans is not undertaken to hinder, delay or defraud any of
the Purchaser's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding
---------------------
or investigation pending or threatened against the Purchaser which, either in
any one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or assets
of the Purchaser, or in any material impairment of the right or ability of
the Purchaser to carry on its business substantially as now conducted, or in
any material liability on the part of the Purchaser, or which would draw into
question the validity of this Agreement or of any action taken or to be taken
in connection with the obligations of the Purchaser contemplated herein, or
which would be likely to impair materially the ability of the Purchaser to
perform under the terms of this Agreement; and
(f) Sale Treatment. The Purchaser has determined that the
--------------
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
----------------------------------------------
Section 4.01 Company to Act as Servicer.
--------------------------
The Company, as an independent contractor, shall service and
administer the Mortgage Loans and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement
of strict compliance with any such term or in any manner grant indulgence to
any Mortgagor if in the Company's reasonable and prudent determination such
waiver, modification, postponement or indulgence is not materially adverse to
the Purchasers, provided, however, that the Company shall not make any future
advances with respect to a Mortgage Loan and (unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment
of the Company, imminent and the Company has obtained the prior written
consent of the Purchaser) the Company shall not permit any modification with
respect to any Mortgage Loan that would change the Mortgage Interest Rate,
defer or forgive the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan or would constitute an
alteration, substitution or release of any of the collateral securing a
Mortgage Loan other than in connection with a payment in full of the Mortgage
Loan. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan for which the Purchaser's
consent was not obtained, the Company shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such principal or
interest payment has been deferred, deposit in the Custodial Account from its
own funds, in accordance with Section 5.03, the difference between (a) such
month's principal and one month's interest at the Mortgage Loan Remittance
Rate on the unpaid principal balance of such Mortgage Loan and (b) the amount
paid by the Mortgagor. The Company shall be entitled to reimbursement for
such advances to the same extent as for all other advances made pursuant to
Section 5.03. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to execute and
deliver on behalf of itself and the Purchasers, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and
all other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Company,
the Purchaser shall furnish the Company with any powers of attorney and other
documents necessary or appropriate to enable the Company to carry out its
servicing and administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Company
shall employ procedures (including collection procedures) and exercise the
same care that it customarily employs and exercises in servicing and
administering mortgage loans for its own account, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement.
The Mortgage Loans may be subserviced by the Subservicer on behalf
of the Company in accordance with the servicing provisions of this agreement,
provided that the Subservicer is a FNMA-approved lender or a FHLMC
seller/servicer in good standing, and no event has occurred, including but
not limited to a change in insurance coverage, which would make it unable to
comply with the eligibility requirements for lenders imposed by FNMA or for
seller/servicers imposed by FHLMC, or which would require notification to
FNMA or FHLMC. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform
any such servicing responsibilities on its behalf, but the use
by the Company of the Subservicer shall not release the Company from
any of its obligations hereunder and the Company shall remain responsible
hereunder for all acts and omissions of the Subservicer as fully as if such
acts and omissions were those of the Company. The Company shall pay all fees
and expenses of the Subservicer from its own funds, and the Subservicer's fee
shall not exceed the Servicing Fee.
At the cost and expense of the Company, without any right of
reimbursement from the Custodial Account, the Company shall be entitled to
terminate the rights and responsibilities of the Subservicer and arrange for
any servicing responsibilities to be performed by a successor Subservicer
meeting the requirements in the preceding paragraph, provided, however, that
nothing contained herein shall be deemed to prevent or prohibit the Company,
at the Company's option, from electing to service the related Mortgage Loans
itself. In the event that the Company's responsibilities and duties under
this Agreement are terminated pursuant to Section 9.01 or 10.01, and if
requested to do so by the Purchaser, the Company shall at its own cost and
expense terminate the rights and responsibilities of the Subservicer as soon
as is reasonably possible. The Company shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities of
the Subservicer from the Company's own funds without reimbursement from the
Purchaser.
Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Company and the Subservicer or any
reference herein to actions taken through the Subservicer or otherwise, the
Company shall not be relieved of its obligations to the Purchaser and shall
be obligated to the same extent and under the same terms and conditions as if
it alone were servicing and administering the Mortgage Loans. The Company
shall be entitled to enter into an agreement with the Subservicer for
indemnification of the Company by the Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving the Subservicer shall be deemed to
be between the Subservicer and Company alone, and the Purchaser shall have no
obligations, duties or liabilities with respect to the Subservicer including
no obligation, duty or liability of Purchaser to pay the Subservicer's fees
and expenses. For purposes of distributions and advances by the Company
pursuant to this Agreement, the Company shall be deemed to have received a
payment on a Mortgage Loan when the Subservicer has received such payment.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection during normal business hours upon
reasonable notice by the Purchaser or its designee the related Servicing File
during the time the Purchaser retains ownership of a Mortgage File and
thereafter in accordance with applicable laws and regulations.
Section 4.02 Liquidation of Mortgage Loans.
-----------------------------
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the
Company would take under similar circumstances with respect to a similar
mortgage loan held for its own account for investment, (2) shall be
consistent with Accepted Servicing Practices, (3) the Company shall determine
prudently to be in the best interest of Purchaser, and (4) is consistent with
any related PMI Policy. In the event that any payment due under any Mortgage
Loan is not postponed pursuant to Section 4.01 and remains delinquent for a
period of 90 days or any other default continues for a period of 90 days
beyond the expiration of any grace or cure period, the Company shall commence
foreclosure proceedings. In such connection, the Company shall from its own
funds make all necessary and proper Servicing Advances, provided, however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any
Mortgaged Property, unless it shall determine (a) that such preservation,
restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan to Purchaser after reimbursement to itself for such
expenses and (b) that such expenses will be recoverable by it either through
Liquidation Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account pursuant to Section 4.05) or through
Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the Company has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if
the Purchaser otherwise requests an environmental inspection or review of
such Mortgaged Property conducted by a qualified inspector shall be arranged
for by Company at Purchaser's expense. Upon completion of the inspection,
the Company shall promptly provide the Purchaser with a written report of the
environmental inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates
that the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes and (b) the Purchaser directs the Company to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean up costs, as applicable, from the related Liquidation Proceeds, or if
the Liquidation Proceeds are insufficient to fully reimburse the Company, the
Company shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 4.05 hereof. In the event the Purchaser directs
the Company not to proceed with foreclosure or acceptance of a deed in lieu
of foreclosure, the Company shall be reimbursed for all Servicing Advances
made with respect to the related Mortgaged Property from the Custodial
Account pursuant to Section 4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments.
------------------------------------
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, the Company shall proceed diligently
to collect all payments due under each of the Mortgage Loans when the same
shall become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loan and the Mortgaged Property, to the
end that the installments payable by the Mortgagors will be sufficient to pay
such charges as and when they become due and payable.
Section 4.04 Establishment of and Deposits to Custodial Account.
--------------------------------------------------
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Custodial Accounts, in the form of time deposit or demand accounts, titled
"First Nationwide Mortgage Corporation in trust for the Purchaser of
Conventional Residential Fixed Rate Mortgage Loans, Group No. 1997-FN-01 and
various Mortgagors". The Custodial Account shall be established with a
Qualified Depository acceptable to the Purchaser. Any funds deposited in the
Custodial Account shall at all times be fully insured to the full extent
permitted under applicable law. Funds deposited in the Custodial Account may
be drawn on by the Company in accordance with Section 4.05. The creation of
any Custodial Account shall be evidenced by a certification in the form of
Exhibit D-1 hereto, in the case of an account established with the Company,
or by a letter agreement in the form of Exhibit D-2 hereto, in the case of an
account held by a depository other than the Company. A copy of such
certification or letter agreement shall be furnished to the Purchaser and,
upon request, to any subsequent Purchaser.
The Company shall deposit in the Custodial Account on a daily
basis, and retain therein, the following collections received by the Company
and payments made by the Company after the Cut-off Date, other than payments
of principal and interest due on or before the Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans adjusted
to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be deposited
pursuant to Section 4.10 (other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with Section 4.14), Section 4.11 and
Section 4.15;
(v) all Condemnation Proceeds which are not applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 4.01, 4.09, 5.03, or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 3.03 and all amounts required to be
deposited by the Company in connection with a shortfall in principal amount
of any Qualified Substitute Mortgage Loan pursuant to Section 3.03;
(viii) with respect to each Principal Prepayment in full or in part,
the Prepayment Interest Shortfall Amount, if any, for the Principal
Prepayment Period. Such deposit shall be made from the Company's own funds,
without reimbursement therefor, up to a maximum amount per month of the
aggregate of the Servicing Fees (based, solely for purposes of this
calculation, on a Servicing Fee Rate equal to 0.25% per annum) actually
received for such month for the Mortgage Loans;
(ix) any amounts required to be deposited by the Company pursuant to
Section 4.11 in connection with the deductible clause in any blanket hazard
insurance policy; and
(x) any amounts received with respect to or related to any REO Property
and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited in
the Custodial Account by the depository institution shall accrue to the
benefit of the Company and the Company shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account.
--------------------------------------------
The Company shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the manner
provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's funds
made pursuant to Section 5.03, the Company's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related Mortgage Loan which represent late payments of principal and/or
interest respecting which any such advance was made, it being understood
that, in the case of any such reimbursement, the Company's right thereto
shall be prior to the rights of Purchaser except where the Company is
required to repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, the
Company's right to such reimbursement shall be subsequent to the payment to
the Purchasers of the Repurchase Price pursuant to such sections and all
other amounts required to be paid to the Purchasers with respect to such
Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Company's right to reimburse itself
pursuant to this subclause (iii) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Company from
the Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of any such reimbursement, the Company's right thereto
shall be prior to the rights of Purchaser, except that where the Company is
required to repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, in
which case the Company's right to such reimbursement shall be subsequent to
the payment to the Purchasers of the Repurchase Price pursuant to such
sections and all other amounts required to be paid to the Purchasers with
respect to such Mortgage Loan;
(iv) to reimburse itself, following a final liquidation of a Mortgage
Loan, for any outstanding Nonrecoverable Advances with respect to such
Mortgage Loan, not previously reimbursed pursuant to clause (ii) or clause
(iii) above, it being understood, in the case of any such reimbursement, that
such right thereto shall be prior to the rights of the Purchaser.
(v) to pay itself interest on funds deposited in the Custodial Account;
(vi) to reimburse itself for expenses incurred and reimbursable to it
pursuant to Section 8.01;
(vii) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the case of any
such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account shall be
limited to amounts on deposit in the Custodial Account with respect to the
related REO Property;
(viii) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on
each Remittance Date, the Company shall withdraw all funds from the Custodial
Account except for those amounts which, pursuant to Section 5.01, the Company
is not obligated to remit on such Remittance Date. The Company may use such
withdrawn funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account.
-----------------------------------------------
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate
and apart from any of its own funds and general assets and shall establish
and maintain one or more Escrow Accounts, in the form of time deposit or
demand accounts, titled, "First Nationwide Mortgage Corporation, in trust for
the Purchaser of Conventional Residential Fixed Rate Mortgage Loans, Group
No. 1997-FN-01, and various Mortgagors". The Escrow Accounts shall be
established with a Qualified Depository, in a manner which shall provide
maximum available insurance thereunder. Funds deposited in the Escrow
Account may be drawn on by the Company in accordance with Section 4.07. The
creation of any Escrow Account shall be evidenced by a certification in the
form of Exhibit E-1 hereto, in the case of an account established with the
Company, or by a letter agreement in the form of Exhibit E-2 hereto, in the
case of an account held by a depository other than the Company. A copy of
such certification shall be furnished to the Purchaser and, upon request, to
any subsequent Purchaser.
The Company shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for
the purpose of effecting timely payment of any such items as required under
the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the Mortgagor.
To the extent required by law, the Company shall pay interest on escrowed
funds to the Mortgagor notwithstanding that the Escrow Account may be non-
interest bearing or that interest paid thereon is insufficient for such
purposes.
Section 4.07 Permitted Withdrawals From Escrow Account.
-----------------------------------------
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for the
related Mortgage;
(ii) to reimburse the Company for any Servicing Advances made by the
Company pursuant to Section 4.08 with respect to a related Mortgage Loan, but
only from amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the Custodial Account and application to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged Property
in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent required by
law, any interest paid on the funds deposited in the Escrow Account; and
(vii) to clear and terminate the Escrow Account on the termination
of this Agreement.
Section 4.08 Payment of Taxes, Insurance and Other Charges.
---------------------------------------------
With respect to each Mortgage Loan, the Company shall maintain
accurate records reflecting the status of ground rents and taxes and any
other item which may become a lien senior to the lien of the related Mortgage
and the status of PMI Policy premiums and fire and hazard insurance coverage
and shall obtain, from time to time, all bills for the payment of such
charges (including renewal premiums) and shall effect or cause to be effected
payment thereof prior to the applicable penalty or termination date. To the
extent that a Mortgage does not provide for Escrow Payments, the Company
shall determine that any such payments are made by the Mortgagor prior to the
applicable penalty or termination date. The Company assumes full
responsibility for (a) the timely payment of all such bills and shall effect
timely payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and
the Company shall make Servicing Advances from its own funds to effect such
payments and (b) any penalties or late charges incurred in connection with
such bills and any other charges (including, without limitation, assessments,
water rates or sewer rents) which may become a lien against the Mortgaged
Property without reimbursement therefore.
Section 4.09 Protection of Accounts.
----------------------
The Company may transfer the Custodial Account or the Escrow
Account to a different Qualified Depository from time to time. Such transfer
shall be made only upon obtaining the consent of the Purchaser, which consent
shall not be withheld unreasonably.
The Company shall bear any expenses, losses or damages sustained by
the Purchaser because the Custodial Account and/or the Escrow Account are not
demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account
may at the option of the Company be invested in Eligible Investments;
provided that in the event that amounts on deposit in the Custodial Account
or the Escrow Account exceed the amount fully insured by the FDIC (the
"Insured Amount") the Company shall be obligated to invest the excess amount
--------------
over the Insured Amount in Eligible Investments on the same
Business Day as such excess amount becomes present in the Custodial Account
or the Escrow Account. Any such Eligible Investment shall mature no later
than the Determination Date next following the date of such Eligible
Investment, provided, however, that if such Eligible Investment is an
obligation of a Qualified Depository (other than the Company) that maintains
the Custodial Account or the Escrow Account, then such Eligible Investment
may mature on such Remittance Date. Any such Eligible Investment shall be
made in the name of the Company in trust for the benefit of the Purchaser.
All income on or gain realized from any such Eligible Investment shall be for
the benefit of the Company and may be withdrawn at any time by the Company.
Any losses incurred in respect of any such investment shall be deposited in
the Custodial Account or the Escrow Account, by the Company out of its own
funds immediately as realized.
Section 4.10. Maintenance of Hazard Insurance.
-------------------------------
The Company shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer rated either A:VI or better in the
current Best's Key Rating Guide ("Best's") or acceptable to FNMA and/or FHLMC
------
against loss by fire, hazards of extended coverage and such other hazards as
are customary in the area where the Mortgaged Property is located, in an
amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds thereof shall be sufficient to prevent the Mortgagor
or the loss payee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier
rated A:VI in Best's or acceptable to FNMA and/or FHLMC in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Company determines in accordance with applicable law and
pursuant to the FNMA Guides that a Mortgaged Property is located in a special
flood hazard area and is not covered by flood insurance or is covered in an
amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Company shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty-five (45)
days after such notification, the Company shall immediately force place the
required flood insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being
maintained in accordance with then current FNMA or FHLMC requirements, and
secure from the owner's association its agreement to notify the Company
promptly of any change in the insurance coverage or of any condemnation or
casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
The Company shall cause to be maintained on each Mortgaged Property
such other additional special hazard insurance as may be required pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance, or pursuant to the requirements of
any PMI Policy insurer, or as may be required to conform with Accepted
Servicing Practices.
All policies required hereunder shall name the Company as loss
payee and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice
of any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Company shall not accept any such insurance policies from insurance
companies unless such companies are rated A:VI in Best's or acceptable FNMA
and/or FHLMC and are licensed to do business in the jurisdiction in which the
Mortgaged Property is located. The Company shall determine that such
policies provide sufficient risk coverage and amounts, that they insure the
property owner, and that they properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Company's normal servicing
procedures as specified in Section 4.14) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Mortgage Impairment Insurance.
--------------------------------------------
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant
to Section 4.10 and otherwise complies with all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations as
set forth in Section 4.10. Any amounts collected by the Company under any
such policy relating to a Mortgage Loan shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 4.05. Such policy may
contain a deductible clause, in which case, in the event that there shall not
have been maintained on the related Mortgaged Property a policy complying
with Section 4.10, and there shall have been a loss which would have been
covered by such policy, the Company shall deposit in the Custodial Account at
the time of such loss the amount not otherwise payable under the blanket
policy because of such deductible clause, such amount to deposited from the
Company's funds, without reimbursement therefor. Upon request of any
Purchaser, the Company shall cause to be delivered to such Purchaser a
certified true copy of such policy and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without 30 days' prior written notice to such Purchaser.
Section 4.12 Maintenance of Fidelity Bond and
--------------------------------
Errors and Omissions Insurance.
------------------------------
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance
Policy, with broad coverage on all officers, employees or other persons
acting in any capacity requiring such persons to handle funds, money,
documents or papers relating to the Mortgage Loans ("Company Employees").
-----------------
Any such Fidelity Bond and Errors and Omissions Insurance Policy shall be in
the form of the Financial Institution Bond Form 22 - Fidelity Bond American
International Specialty Lines Insurance Policy Form ("5713) 5/93") Mortgage
Banker Broker E&O and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan
without having obtained payment in full of the indebtedness secured thereby.
No provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by FNMA. Upon the request of any Purchaser,
the Company shall cause to be delivered to such Purchaser a certificate of
insurance of the insurer and the surety including a statement from the surety
and the insurer that such fidelity bond and insurance policy shall in no
event be terminated or materially modified without 30 days' prior written
notice to the Purchaser.
Section 4.13 Inspections.
-----------
The Company shall inspect the Mortgaged Property as often as deemed
necessary by the Company to assure itself that the value of the Mortgaged
Property is being preserved. In addition, if any Mortgage Loan is more than
60 days delinquent, the Company immediately shall inspect the Mortgaged
Property and shall conduct subsequent inspections in accordance with Accepted
Servicing Practices or as may be required by the primary mortgage guaranty
insurer. The Company shall keep a written or electronic report of each such
inspection.
Section 4.14 Restoration of Mortgaged Property.
---------------------------------
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to
be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. At a minimum,
the Company shall comply with the following conditions in connection with any
such release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(ii) the Company shall take all steps necessary to preserve the priority
of the lien of the Mortgage, including, but not limited to requiring waivers
with respect to mechanics' and materialmen's liens;
(iii) if the Mortgage Loan is not included in a Pass-Through
Transfer, the Company shall verify that the Mortgage Loan is not in default;
and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company
is hereby empowered to endorse any loss draft issued in respect of such a
claim in the name of the Purchaser.
Section 4.15 Maintenance of PMI Policy; Claims.
---------------------------------
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a PMI Policy insuring that
portion of the Mortgage Loan in excess of 75% of value, and shall pay or
shall cause the Mortgagor to pay the premium thereon on a timely basis, until
the LTV of such Mortgage Loan is reduced to 80%. In the event that such PMI
Policy shall be terminated, the Company shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated PMI Policy. If the insurer shall cease
to be a Qualified Insurer, the Company shall determine whether recoveries
under the PMI Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Company shall in no
event have any responsibility or liability for any failure to recover under
the PMI Policy for such reason. If the Company determines that recoveries
are so jeopardized, it shall notify the Purchaser and the Mortgagor, if
required, and obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in
noncoverage under any applicable PMI Policy of any loss which, but for the
actions of the Company would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into pursuant to Section 6.01, the Company shall promptly notify the insurer
under the related PMI Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such PMI Policy and shall take all
actions which may be required by such insurer as a condition to the
continuation of coverage under such PMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement PMI Policy as provided above.
In connection with its activities as servicer, the Company agrees
to prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms
of such PMI Policy and, in this regard, to take such action as shall be
necessary to permit recovery under any PMI Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 4.04, any amounts collected by the
Company under any PMI Policy shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 4.05.
Section 4.16 Title, Management and Disposition of REO Property.
-------------------------------------------------
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be taken in the name of the Purchaser, or in the event the
Purchaser is not authorized or permitted to hold title to real property in
the state where the REO Property is located, or would be adversely affected
under the "doing business" or tax laws of such state by so holding title, the
deed or certificate of sale shall be taken in the name of such Person or
Persons as shall be consistent with an opinion of counsel obtained by the
Company from any attorney duly licensed to practice law in the state where
the REO Property is located. The Person or Persons holding such title other
than the Purchaser shall acknowledge in writing that such title is being held
as nominee for the Purchaser.
The Purchaser shall furnish the Servicer, upon written request,
with any powers of attorney empowering the Servicer or any Subservicer to
execute and deliver instruments of satisfaction or cancellation or of partial
or full release or discharge or to foreclose upon or otherwise liquidate
Mortgaged Property in accordance with the provision hereof, and shall execute
and deliver such other documents as the Servicer may reasonably request and
which are necessary or appropriate to enable the Servicer to service and
administer the Mortgage Loans and to carry out its duties hereunder.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition
and sale. The Company, either itself or through an agent selected by the
Company, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Company
shall attempt to sell the same (and may temporarily rent the same for a
period not greater than one year, except as otherwise provided below) on such
terms and conditions as the Company deems to be in the best interest of the
Purchaser.
The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless (i)
(A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Company
determines, and gives an appropriate notice to the Purchaser to such effect,
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Company shall
report monthly to the Purchaser as to the progress being made in selling such
REO Property and (ii) if, with the written consent of the Purchaser, a
purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Company as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Company and Purchaser shall be entered into
with respect to such purchase money mortgage.
The Company shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal to
the maximum insurable value of the improvements which are a part of such
property, liability insurance and, to the extent required and available
under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in the amount required above.
The disposition of REO Property shall be carried out by the Company
at such price, and upon such terms and conditions, as the Company deems to be
in the best interests of the Purchaser. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account. As soon as
practical thereafter the expenses of such sale shall be paid and the Company
shall reimburse itself for any related unreimbursed Servicing Advances,
unpaid Servicing Fees, unreimbursed Monthly Advances made pursuant to Section
5.03, and a one time REO Property disposition fee of $800 for each REO
Property sold hereunder. On the Remittance Date immediately following the
Principal Prepayment Period in which such sale proceeds are received the net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Company shall withdraw the Custodial Account funds necessary
for the proper operation, management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to Section
4.10 and the fees of any managing agent of the Company, a Subservicer, or the
Company itself. The REO management fee shall be an amount that is reasonable
and customary in the area where the Mortgaged Property is located. The
Company shall make monthly distributions on each Remittance Date to the
Purchasers of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be
maintained to satisfy anticipated liabilities for such expenses).
Section 4.17 Real Estate Owned Reports.
-------------------------
Together with the statement furnished pursuant to Section 5.02, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the Purchaser
shall reasonably request.
Section 4.18 Liquidation Reports.
-------------------
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of
foreclosure, the Company shall submit to the Purchaser a liquidation report
with respect to such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments
----------------------------------------
of Mortgaged Property.
---------------------
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as
required pursuant to Section 6050J of the Code.
ARTICLE V
PAYMENTS TO PURCHASER
---------------------
Section 5.01 Remittances.
-----------
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net
of charges against or withdrawals from the Custodial Account pursuant to
Section 4.05), plus (b) all Monthly Advances, if any, which the Company is
obligated to distribute pursuant to Section 5.03, minus (c) any amounts
attributable to Principal Prepayments received after the applicable Principal
Prepayment Period which amounts shall be remitted on the following Remittance
Date, together with any additional interest required to be deposited in the
Custodial Account in connection with such Principal Prepayment in accordance
with Section 4.04(viii), and minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day
of the month of the Remittance Date, which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts.
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Company shall pay to the Purchaser interest on any such late payment at
an annual rate equal to the Prime Rate, adjusted as of the date of each
change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be deposited
in the Custodial Account by the Company on the date such late payment is made
and shall cover the period commencing with the day following such second
Business Day and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding Remittance Date. The payment by the Company
of any such interest shall not be deemed an extension of time for payment or
a waiver of any Event of Default by the Company.
Section 5.02 Statements to Purchaser.
-----------------------
Not later than the Remittance Date, the Company shall furnish to
the Purchaser a Monthly Remittance Advice, with a trial balance report
attached thereto, in the form of Exhibit F annexed hereto in hard copy and
electronic medium mutually acceptable to the parties as to the preceding
remittance and the period ending on the preceding Determination Date.
In addition, not more than 60 days after the end of each calendar
year, the Company shall furnish to each Person who was a Purchaser at any
time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Such obligation of the Company shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Company pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
The Company shall prepare any and all tax, information statements
or other filings required to be delivered to any governmental taxing
authority or to any Purchaser pursuant to any applicable law with respect
to the Mortgage Loans and the transactions contemplated hereby. In
addition, the Company shall provide each Purchaser with such information
concerning the Mortgage Loans as is necessary for such Purchaser to
prepare its federal income tax return as any Purchaser may reasonably
request from time to time.
Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan which is held by a REMIC, the Company shall not be required
to prepare or file any tax return for the REMIC.
Section 5.03 Monthly Advances by Company.
---------------------------
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds an amount
equal to all Monthly Payments (with interest adjusted to the Mortgage Loan
Remittance Rate) which were due on the Mortgage Loans during the applicable
Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date or which were deferred pursuant to
Section 4.01. The Company's obligation to make such Monthly Advances as to
any Mortgage Loan will continue through the last Monthly Payment due prior to
the payment in full of the Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds) with respect to the Mortgage Loan.
The Servicer shall be obligated to make Monthly Advances in
accordance with the provisions of this Agreement; provided however, that such
obligation with respect to any Mortgage Loan shall cease if the Servicer
determines, in its reasonable opinion, that Monthly Advances with respect to
such Mortgage Loan are Nonrecoverable Advances. In the event that the
Servicer determines that any such advances are Nonrecoverable Advances, the
Servicer shall provide the Purchaser with a certificate signed by two
Servicing Officers evidencing such determination.
If a Monthly Advance is required hereunder, the Company shall on
the Remittance Date immediately following the related Determination Date
either (i) deposit in the Custodial Account an amount equal to such Monthly
Advance, (ii) cause to be made an appropriate entry in the records of the
Custodial Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.03, used
by the Company to make such Monthly Advance and remit such funds to the
Purchaser or (iii) make Monthly Advances in the form of any combination of
clauses (i) and (ii) aggregating the amount of such Monthly Advance. Any
funds being held in the Custodial Account for future distribution to
Purchaser and so used shall be replaced by the Company from its own funds by
deposit in the Custodial Account on or before any future Remittance Date in
which such funds would be due to the Purchaser.
ARTICLE VI
GENERAL SERVICING PROCEDURES
----------------------------
Section 6.0l Transfers of Mortgaged Property.
-------------------------------
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption
by the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to
the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause
applicable thereto, provided, however, that the Company shall not exercise
such rights if prohibited by law from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related PMI
Policy, if any.
If the Company reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the person to whom such property
has been conveyed, pursuant to which such person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in
the event the Company is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note and the Company has
the prior consent of the primary mortgage guaranty insurer, a substitution of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note. In connection with any such assumption, neither the
Mortgage Interest Rate borne by the related Mortgage Note, the term of the
Mortgage Loan nor the outstanding principal amount of the Mortgage Loan shall
be changed.
To the extent that any Mortgage Loan is assumable, the Company
shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the underwriting criteria for approving the credit
of the proposed transferee which are used by FNMA with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria,
the Company diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.
-------------------------------------------------------
Upon the payment in full of any Mortgage Loan, or the receipt by
the Company of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Company shall notify the Purchaser in
the Monthly Remittance Advice as provided in Section 5.02, and upon deposit
of such payment in full in the Custodial Account may request the release of
any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage
or should the Company otherwise prejudice any rights the Purchaser may
have under the mortgage instruments, upon written demand of the Purchaser,
the Company shall repurchase the related Mortgage Loan at the Repurchase
Price by deposit thereof in the Custodial Account within 2 Business Days
of receipt of such demand by the Purchaser. The Company shall maintain
the Fidelity Bond and Errors and Omissions Insurance Policy as
provided for in Section 4.12 insuring the Company against any loss it
may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 6.03 Penalties for Prepayment
------------------------
Each Mortgage Loan contains a Prepayment Penalty in an amount as
specified in the related Mortgage Loan Documents. The Company shall, to the
extent permitted by applicable law, collect from each Mortgagor who prepays
principal in excess of 20% of the original principal balance of the related
Mortgage Loan in any one year, the amount of the Prepayment Penalty as
permitted in the related Mortgage Loan Documents. The Company shall retain,
as servicing compensation, all such Prepayment Penalties received in
connection with any Mortgage Loan.
Section 6.04 Servicing Compensation.
---------------------
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee, less any
amounts payable by the Company pursuant to Section 4.04 (viii). The
Servicing Fee shall be payable monthly and shall be computed on the basis of
the same unpaid principal balance and for the period respecting which any
related interest payment on a Mortgage Loan is computed. The Servicing Fee
shall be payable only at the time of and with respect to those Mortgage Loans
for which payment is in fact made of the entire amount of the Monthly
Payment. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and payable solely from, the interest portion of such Monthly Payments
collected by the Company or as otherwise provided in Section 4.05.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the Company. The Company shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement thereof except as specifically
provided for herein.
Section 6.05 Annual Statement as to Compliance.
---------------------------------
The Company shall deliver to the Purchaser, on or before March 31
each year beginning March 31, 1998, an Officer's Certificate, stating that
(i) a review of the activities of the Company 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 Company has fulfilled all 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 and the action being taken by
the Company to cure such default.
Section 6.06 Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
On or before March 31st of each year beginning March 31, 1998, the
Company, at its expense, shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants
to furnish a statement to each Purchaser to the effect that such firm has
examined certain documents and records relating to the servicing of mortgage
loans which the servicer is servicing, including the Mortgage Loans, and
that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers, nothing has
come to their attention which would indicate that such servicing has not been
conducted in compliance with Accepted Servicing Practices, 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.
Section 6.07 Right to Examine Company Records.
--------------------------------
The Purchaser shall have the right to examine and audit any and all
of the books, records, or other information of the Company, whether held by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as may be reasonable under applicable circumstances, upon reasonable advance
notice.
ARTICLE VII
AGENCY TRANSFER; PASS-THROUGH TRANSFER
Section 7.01. Removal of Mortgage Loans from Inclusion Under this
---------------------------------------------------
Agreement Upon an Agency Transfer, or a Pass-Through
----------------------------------------------------
Transfer on One or More Reconstitution Dates.
--------------------------------------------
The Purchaser and the Company agree that with respect to some or
all of the Mortgage Loans, from time to time the Purchaser shall, subject to
Section 2.02, effect a Pass-Through Transfer, in each case retaining the
Company as the servicer thereof, or as applicable the "seller/servicer". On
the related Reconstitution Date, the Mortgage Loans transferred shall cease
to be covered by this Agreement.
The Company shall cooperate with the Purchaser in connection with
any Agency Transfer or Pass-Through Transfer contemplated by the Purchaser
pursuant to this Section 7.01. In that connection, the Company shall (a)
execute any Reconstitution Agreement within a reasonable period of time after
receipt of any Reconstitution Agreement which time shall be sufficient for
the Company and Company's counsel to review such Reconstitution Agreement,
but such time shall not exceed ten (10) Business Days after such receipt, and
(b) provide to FNMA, FHLMC, the trustee or a third party purchaser, as the
case may be, subject to any Reconstitution Agreement: any and all information
and appropriate verification of information which may be reasonably available
to the Company, whether through letters of its auditors and counsel or
otherwise, as the Purchaser shall reasonably request or as are reasonably
believed necessary by FNMA, FHLMC, the trustee, such third party purchaser,
any master servicer, or any rating agency, as the case may be, in connection
with such transactions, at reasonable out-of-pocket expense of the Purchaser
(unless such information is otherwise required to be provided by the Company
hereunder); provided, however, that the Company shall only be required to
remake or update the representations and warranties contained in Section 3.01
of this Agreement as of the Reconstitution Date. In furtherance of the
foregoing, the Company shall deliver, to the extent available, information as
to its delinquency, foreclosure and loss experience for the immediately
preceding three year period in each case, with respect to mortgage loans
owned by it and such mortgage loans serviced for others during such period.
In connection with a Pass-Through Transfer, the Company shall indemnify the
Purchaser if any information furnished by the Company for use in any
prospectus delivered with respect to the Certificates issued in connection
therewith is untrue in any material respect or omits information necessary to
make the statements contained therein not misleading in any material respect
in light of the circumstances under which they were made.
In the event the Purchaser has elected to have the Company hold
record title to the Mortgages, prior to a Reconstitution Date the Company or
its designee shall prepare an Assignment of Mortgage in blank from the
Company, acceptable to FNMA, FHLMC, the trustee or such third party, as the
case may be, for each Mortgage Loan that is part of a Pass-Through Transfer
and shall pay all preparation and recording costs associated therewith so
long as such Assignment of Mortgage has not previously been recorded at the
expense of the Company. The Company shall execute each Assignment of
Mortgage, track such Assignments of Mortgage to ensure they have been
recorded and deliver them as required by FNMA, FHLMC, the trustee or such
third party, as the case may be, upon the Company's receipt thereof.
Additionally, the Company shall prepare and execute, at the direction of
the Purchaser, any note endorsements in connection with any and all
Reconstitution Agreements.
All Mortgage Loans not sold or transferred pursuant to an Agency
Transfer or Pass-Through Transfer and any Mortgage Loans repurchased by the
Purchaser pursuant to Section 7.02 hereof, shall be subject to this Agreement
and shall continue to be serviced in accordance with the terms of this
Agreement and with respect thereto this Agreement shall remain in full force
and effect.
Section 7.02. Purchaser's Repurchase and Indemnification
------------------------------------------
Obligations.
- -----------
Upon receipt by the Company of notice from FNMA, FHLMC or the
trustee of a breach of any Purchaser representation or warranty contained in
any Reconstitution Agreement or a request by FNMA, FHLMC or the trustee, as
the case may be, for the repurchase of any Mortgage Loan transferred to FNMA
or FHLMC pursuant to an Agency Transfer or to a trustee pursuant to a Pass-
Through Transfer, the Company shall promptly notify the Purchaser of same and
shall, at the direction of the Purchaser, use its best efforts to cure and
correct any such breach and to satisfy the requests or concerns of FNMA,
FHLMC, or the trustee related to such deficiencies of the related Mortgage
Loans transferred to FNMA, FHLMC, or the trustee.
The Purchaser shall repurchase from the Company any Mortgage Loan
transferred to FNMA or FHLMC pursuant to an Agency Transfer or to a trustee
pursuant to a Pass-Through Transfer with respect to which the Company has
been required by FNMA, FHLMC, or the trustee to repurchase due to a breach of
a representation or warranty made by the Purchaser with respect to the
Mortgage Loans, or the servicing thereof prior to the transfer date to FNMA,
FHLMC, or the trustee in any Reconstitution Agreement and not due to a Breach
of the Company's representations or obligations thereunder . The repurchase
price to be paid by the Purchaser to the Company shall equal that repurchase
price paid by the Company to FNMA, FHLMC, or the third party purchaser plus
all reasonable costs and expenses borne by the Company in connection with the
cure of such breach of a representation or warranty made by the Purchaser and
in connection with the repurchase of such Mortgage Loan from FNMA, FHLMC, or
the trustee, including, but not limited to, reasonable and necessary
attorneys' fees.
At the time of repurchase, the Custodian and the Company shall
arrange for the reassignment of the repurchased Mortgage Loan to the
Purchaser according to the Purchaser's instructions and the delivery to the
Custodian of any documents held by FNMA, FHLMC, or the trustee with respect
to the repurchased Mortgage Loan pursuant to the related Reconstitution
Agreement. In the event of a repurchase, the Company shall, simultaneously
with such reassignment, give written notice to the Purchaser that such
repurchase has taken place, and amend the Mortgage Loan Schedule to reflect
the addition of the repurchased Mortgage Loan to this Agreement.
ARTICLE VIII
COMPANY TO COOPERATE
--------------------
Section 8.01 Provision of Information.
------------------------
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies
or originals of any documents contained in the Servicing File for each
Mortgage Loan, whether or not provided for herein, as shall be necessary,
reasonable, or appropriate with respect to the Purchaser, any regulatory
requirement pertaining to the Purchaser or the purposes of this Agreement.
All such reports, documents or information shall be provided by and in
accordance with all reasonable instructions and directions which the
Purchaser may give.
The Company shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this
Agreement.
Section 8.02 Financial Statements; Servicing Facility.
------------------------------- --------
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective Purchaser a Consolidated Statement of
Operations of the Company for the most recently completed five fiscal years
or such lesser period the Company has been in existence for which such a
statement is available, as well as a Consolidated Statement of Condition at
the end of the last two fiscal years covered by such Consolidated Statement
of Operations. The Company also shall make available the most recent
comparable interim statements to the extent any such statements have been
prepared by or on behalf of the Company (and are available upon request to
members or stockholders of the Company or to the public at large). If it has
not already done so, the Company shall furnish promptly to the Purchaser
copies of the statement specified above.
Upon reasonable notice during normal business hours, the Company
also shall make available to Purchaser or prospective Purchaser a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective Purchaser
to inspect the Company's servicing facilities or those of any Subservicer for
the purpose of satisfying such prospective Purchaser that the Company and any
Subservicer have the ability to service the Mortgage Loans as provided in
this Agreement.
ARTICLE IX
THE COMPANY
-----------
Section 9.01 Indemnification; Third Party Claims.
-----------------------------------
The Company shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way
related to the failure of the Company to perform its duties and service the
Mortgage Loans in material compliance with the terms of this Agreement or any
Reconstitution Agreement entered into pursuant to Section 7.01. The Company
immediately shall notify the Purchaser if a claim is made by a third party
with respect to this Agreement or any Reconstitution Agreement or the
Mortgage Loans, shall promptly notify FNMA, FHLMC, or the trustee with
respect to any claim made by a third party with respect to any Reconstitution
Agreement, the Mortgage Loans, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or the Purchaser in
respect of such claim. The Company shall follow any reasonable written
instructions received from the Purchaser in connection with such claim. The
Purchaser promptly shall reimburse the Company for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in any way
related to the Company's indemnification pursuant to Section 3.03, or the
failure of the Company to service and administer the Mortgage Loans in
material compliance with the terms of this Agreement or any Reconstitution
Agreement.
Section 9.02 Merger or Consolidation of the Company.
----------------------------------------
The Company shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any person into which the Company may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Company shall be a party, or any Person succeeding to the business
of the Company, shall be the successor of the Company hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution
either (i) having a net worth of not less than $25,000,000 or whose deposits
are insured by the FDIC through the BIF or the SAIF, and (ii) which is a
FNMA-approved company in good standing. If any such merger, conversion or
consolidation occurs after a Reconstitution Date, in addition to the
foregoing, there must be delivered to the Purchaser a letter from each of the
Rating Agencies to the effect that such merger, conversion or consolidation
will not result in a qualification, withdrawal or downgrade of the then-
current rating of any of the Certificates.
Section 9.03 Limitation on Liability of Company and Others.
---------------------------------------------
Neither the Company nor any of the directors, officers, employees
or agents of the Company shall be under any liability to the Purchaser 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 Company or any such person
against any Breach of warranties or representations made herein, or failure
to perform its obligations in strict compliance with any standard of care set
forth in this Agreement, or any liability which would otherwise be imposed by
reason of any breach of the terms and conditions of this Agreement. The
Company and any director, officer, employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The
Company shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expense or liability, provided, however, that the Company
may, with the consent of the Purchaser, undertake any such action which it
may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto. In such event, the Company shall be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action unless such action results from the Company's
willful misconduct, bad faith or negligence in the performance of its duties
hereunder.
Section 9.04 Limitation on Resignation and Assignment by Company.
---------------------------------------------------
The Purchaser has entered into this Agreement with the Company and
subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Company shall neither assign this Agreement or the servicing
hereunder or, except as provided in Section 9.02, delegate its rights or
duties hereunder or any portion hereof to other than a Subservicer or sell or
otherwise dispose of all or substantially all of its property or assets
without the prior written consent of the Purchaser, which consent shall not
be unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser (such
consent of Purchaser not to be unreasonably withheld) or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by
an Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of Counsel shall be in form and substance acceptable to the Purchaser. No
such resignation shall become effective until a successor shall have assumed
the Company's responsibilities and obligations hereunder in the manner
provided in Section 12.01.
Without in any way limiting the generality of this Section 9.04, in
the event that the Company either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof (to other than a Subservicer) or, except as provided in
Section 9.02, sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the Purchaser as
provided herein, then the Purchaser shall have the right to terminate this
Agreement upon notice given as set forth in Section 10.01, without any
payment of any penalty or damages and without any liability whatsoever to
the Company or any third party.
Notwithstanding the foregoing provisions, the Company may resign or
assign its rights as servicer hereunder without Purchaser's consent if the
following conditions are met:
There must be delivered to the Purchaser a letter from each of the
Rating Agencies to the effect that such transfer of servicing or sale or
disposition of assets will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates (if such
resignation or assignment occurs following a Reconstitution Date). In
addition, the ability of the Company to assign its rights and delegate its
duties under this Agreement to a successor servicer shall be subject to the
following conditions:
(i) Such successor servicer must be qualified to service loans for
FNMA or FHLMC;
(ii) Such successor servicer must have a net worth of not less than
$15,000,000;
(iii) Such successor servicer must execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, that contains an assumption by such successor servicer of
the due and punctual performance and observance of each servicing
covenant and condition to be performed and observed by the Company under
this Agreement;
(iv) The Company shall, at its cost and expense, take such steps
that may be necessary or appropriate to effectuate and evidence the
transfer of the servicing of the Mortgage Loans to such successor
servicer, including, but not limited to, the following: (a) to the
extent required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Company shall timely mail to
each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the
successor servicer; (b) prior to the effective date of such transfer of
servicing, the Company shall transmit to any related insurer
notification of such transfer of servicing, (c) on or prior to the
effective date of such transfer of servicing the Company shall deliver
to the successor servicer all Servicing Files and any related records or
materials; (d) on or prior to the effective date of such transfer of
servicing, the Company shall transfer to the successor servicer all
funds held by the Company in respect of the Mortgage Loans, other than
amounts payable to the Company pursuant to this Agreement; (e) on or
prior to the effective date of such transfer of servicing, the Company
shall remit to the Purchaser the amount of any Monthly Advance made by
the Company on any prior date out of amounts held in a Custodial Account
for future distribution and not yet paid into such Custodial Account by
the Company; (f) the Company shall, after the effective date of the
transfer of servicing to the successor servicer, continue to forward to
such successor servicer, within one Business Day of receipt, the amount
of any payments or other recoveries received by the Company in respect
of the Mortgage Loans, and the Company shall notify the successor
servicer of the source and proper application of each such payment or
recovery; (g) the Company shall, after the effective date of transfer of
servicing to the successor servicer, continue to cooperate with the
successor servicer to facilitate such transfer in such manner and to
such extent as the successor servicer may reasonably request.
ARTICLE X
DEFAULT
-------
Section 10.01 Events of Default.
-----------------
Each of the following shall constitute an Event of Default on the
part of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of five days after the date upon which written notice
of such failure, requiring the same to be remedied, shall have been given to
the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Company set forth in this Agreement or in the Custodial Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do business
in any jurisdiction where the Mortgaged Property is located; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, including
bankruptcy, marshaling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been entered
against the Company and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Company shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Company or of or relating to all or substantially all of its property; or
(vi) the Company shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations or cease its normal business operations for three Business
Days; or
(vii) the Company ceases to meet the qualifications of a FNMA
lender; or
(viii) the Company fails to maintain a minimum net worth of
$25,000,000; or
(ix) the Company attempts to assign its right to servicing
compensation hereunder or the Company attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof (to other than a Subservicer) in violation of Section 9.04.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatsoever rights the Purchaser may
have at law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Company, may
terminate all the rights and obligations of the Company under this Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority
and power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any
Purchaser, the Company shall prepare, execute and deliver to the successor
entity designated by the Purchaser any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and do
or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to the transfer and endorsement or assignment of the Mortgage Loans and
related documents, at the Company's sole expense. The Company shall
cooperate with the Purchaser and such successor in effecting the termination
of the Company's responsibilities and rights hereunder, including without
limitation, the transfer to such successor for administration by it of all
cash amounts which shall at the time be credited by the Company to the
Custodial Account or Escrow Account or thereafter received with respect to
the Mortgage Loans.
Section 10.02 Waiver of Defaults.
------------------
By a written notice, the Purchaser may waive any default by the
Company in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to
the extent expressly so waived.
ARTICLE XI
TERMINATION
-----------
Section 11.01 Termination.
-----------
This Agreement shall terminate upon either: (i) the later of the
final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or the disposition of any REO Property with respect to
the last Mortgage Loan and the remittance of all funds due hereunder; or (ii)
mutual consent of the Company and the Purchaser in writing.
Section 11.02 Termination Without Cause.
-------------------------
Beginning three years after the Closing Date, the Purchaser may
terminate, at its sole option, any rights the Company may have hereunder,
without cause as provided in this Section 11.02 upon thirty (30) days notice
to the Company. Any such notice of termination shall be in writing and
delivered to the Company by registered mail as provided in Section 12.05.
Upon the termination of servicing without cause hereunder, the
Purchaser shall pay to the Company a termination fee equal to: (i) with
respect to Mortgage Loans with a Servicing Rate equal to 25 basis points or
less, an amount equal to six (6) times the applicable Servicing Rate
multiplied by the outstanding principal balance of such Mortgage Loans in
which the servicing is being terminated, or (ii) with respect to Mortgage
Loans with a Servicing Rate greater than 25 basis points, 1.50% plus seven
(7) times the excess of the Servicing Rate over 25 basis points multiplied by
the outstanding principal balance of such Mortgage Loans in which the
servicing is being terminated.
ARTICLE XII
MISCELLANEOUS PROVISIONS
-------------------
Section 12.01 Successor to Company.
--------------------
Prior to termination of the Company's responsibilities and duties
under this Agreement pursuant to Sections 9.04, 10.01, 11.01 (ii) or pursuant
to Section 11.02 after the 90 day period has expired, the Purchaser shall,
(i) succeed to and assume all of the Company's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor
having the characteristics set forth in clauses (i) through (iii) of Section
9.02 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Company under this Agreement
prior to the termination of Company's responsibilities, duties and
liabilities under this Agreement. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree (not to exceed the Servicing Fee). In the event that the
Company's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Company
shall discharge such duties and responsibilities during the period from the
date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated
to exercise under this Agreement, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its successor.
The resignation or removal of the Company pursuant to the aforementioned
sections shall not become effective until a successor shall be appointed
pursuant to this Section 12.01 and shall in no event relieve the Company of
the representations and warranties made pursuant to Sections 3.01 and 3.02
and the remedies available to the Purchaser under Section 3.03, it being
understood and agreed that the provisions of such Sections 3.01, 3.02, 3.03
and 9.01 shall be applicable to the Company notwithstanding any such sale,
assignment, resignation or termination of the Company, or the termination of
this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Company and to the Purchaser an instrument
accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 3.01, except for
subsections (f), (h), (i) and (k) thereof, whereupon such successor shall
become fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Company, with like effect as if originally
named as a party to this Agreement. Any termination or resignation of the
Company or termination of this Agreement pursuant to Section 9.04, 10.01,
11.01 or 11.02 shall not affect any claims that any Purchaser may have
against the Company arising out of the Company's actions or failure to act
prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the
Funds in the Custodial Account and Escrow Account and all Mortgage Files and
related documents and statements held by it hereunder and the Company shall
account for all funds and shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment.
---------
This Agreement may be amended from time to time by the Company and
the Purchaser by written agreement signed by the Company and the Purchaser.
Section 12.03 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 12.04 Duration of Agreement.
---------------------
This Agreement shall continue in existence and effect until
terminated as herein provided. This Agreement shall continue notwithstanding
transfers of the Mortgage Loans by the Purchaser.
Section 12.05 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 registered mail, postage prepaid, addressed as follows:
(i) if to the Company:
First Nationwide Mortgage Corporation
5280 Corporate Drive
Frederick, Maryland 21701
Attn: John P. Jukoski, Jr.
Vice President - Secondary Marketing
copies to:
First Nationwide Mortgage Corporation
5280 Corporate Drive
Frederick, MD 21701
Attn: Stephen E. Simcock, Esq.
Chief Counsel
or such other address as may hereafter be furnished to the Purchaser in
writing by the Company;
(ii) if to Purchaser:
Lehman Capital, a Division of
Lehman Brothers Holdings Inc.
3 World Financial Center
12th Floor
200 Vesey Street,
New York, New York 10285-0800
Attention: Contract Finance
Section 12.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever, 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 12.07 Relationship of Parties.
-----------------------
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
the Company shall be rendered as an independent contractor and not as agent
for the Purchaser.
Section 12.08 Execution; Successors and Assigns.
---------------------------------
This Agreement 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 agreement. Subject to Section 8.04, this
Agreement shall inure to the benefit of and be binding upon the Company and
the Purchaser and their respective successors and assigns.
Section 12.09 Recordation of Assignments of Mortgage.
--------------------------------------
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for
real property records in all the counties or other comparable jurisdictions
in which any or all of the Mortgaged Properties are situated, and in any
other appropriate public recording office or elsewhere, such recordation to
be effected at the Company's expense in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole
option so long as such recordation is the initial recordation of an
assignment of the Mortgage Loan since the sale to the Purchaser of such
Mortgage Loan.
Section 12.10 Assignment by Purchaser.
-----------------------
The Purchaser shall have the right, without the consent of the
Company but subject to the limit set forth in Section 2.02 hereof, to assign,
in whole or in part, its interest under this Agreement with respect to some
or all of the Mortgage Loans, and designate any person to exercise any rights
and assume obligations of the Purchaser hereunder with respect to such
Mortgage Loans, by executing an assignment and assumption agreement or other
instrument of transfer to such effect. Upon such assignment of rights and
assumption of obligations, the assignee or designee shall accede to the
rights and obligations hereunder of the Purchaser with respect to such
Mortgage Loans and the Purchaser as assignor shall be released from all
obligations hereunder with respect to such Mortgage Loans from and after the
date of such assignment and assumption. All references to the Purchaser in
this Agreement shall be deemed to include its assignee or designee.
Section 12.11 No Personal Solicitation.
------------------------
The Company agrees that it shall not solicit any Mortgagors (in
writing or otherwise) to refinance any of the Mortgage Loans; provided that
mass advertising or mailing (such as placing advertisements on television, on
radio, in magazines or in newspapers) that is not exclusively directed
towards the Mortgagors shall not constitute "solicitation" and shall not
violate this covenant.
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
(Purchaser)
By: /s/ Jack E. Desens
------------------------
Name: Jack E. Desens
Title: Senior Vice President
FIRST NATIONWIDE MORTGAGE
CORPORATION
(Seller)
By: /s/ Walter Klein, Jr.
-------------------------
Name: Walter Klein, Jr.
Title: President & CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of ________, 1997 before me, a Notary Public in and
for said State, personally appeared ___________________________, known to me
to be Vice President of Lehman Capital, A Division of Lehman Brothers
Holdings Inc., the corporation that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
______________________________
Notary Public
My Commission expires ________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of _______, 1997 before me, a Notary Public in and
for said State, personally appeared ____________________________, known to me
to be __________________ of ____________________, the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
-------------------------------
Notary Public
My Commission expires ________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B-1
MORTGAGE FILE
(a) The original Mortgage Note bearing all intervening endorsements and
including any riders to the Mortgage Note, endorsed "Pay to the order of
___________________ without recourse and signed in the name of the previous
owner by an authorized officer;
(b) the original of any guarantee executed in connection with the
Mortgage Note (if any);
(c) the original Mortgage with evidence of recording thereon, or copies
certified by the related recording office or if the original Mortgage has not
yet been returned from the recording office, a copy certified by the Company
indicating that such Mortgage has been delivered for recording. The return
directions for the original Mortgage should indicate, when recorded, mail to
the Company;
(d) the originals of all assumption, modification, consolidation or
extension agreements, (or, if an original of any of these documents has not
been returned from the recording office, a certified copy thereof, the
original to be delivered to the Company forthwith after return from such
recording office) with evidence of recording thereon, if any;
(e) the original Assignment of Mortgage as appropriate, in recordable
form, for each Mortgage Loan to _____________________;
(f) the originals of any intervening recorded Assignments of Mortgage,
showing a complete chain of assignment from origination to the Company,
including warehousing assignments, with evidence of recording thereon (or, if
an original intervening Assignment of Mortgage has not been returned from the
recording office, a certified copy thereof, the original to be delivered to
the Custodian forthwith after return from such recording office);
(g) the original mortgage title insurance policy, or copy of title
commitment (or in appropriate jurisdictions, attorney's opinion of title and
abstract of title); and
(h) the original primary mortgage insurance certificate, if any or copy
of mortgage insurance certificate.
EXHIBIT B-2
CONTENTS OF EACH SERVICING FILE
With respect to each Mortgage Loan, the Servicing File shall
include each of the following items, which shall be available for inspection
by the Purchaser and any prospective Purchaser, and which shall be retained
by the Company in the Servicing File (or other file or electronic media)
pursuant to the Seller's Warranties and Servicing Agreement to which this
Exhibit is attached (the "Agreement"):
---------
1. A copy of each document contained in the Mortgage File.
2. Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
3. Residential loan application.
4. Mortgage Loan closing statement.
5. Verification of employment and income.
6. Verification of acceptable evidence of source and amount of
downpayment.
7. If applicable, credit report on the Mortgagor.
8. Residential appraisal report.
9. Photograph of the Mortgaged Property.
10. If applicable, survey of the Mortgaged Property.
11. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
12. All required disclosure statements required to be disclosed to
borrowers at the time of application or origination, as applicable
for the Mortgage Loan.
13. If available, termite report, structural engineer's report, water
potability and septic certification.
14. Sales contract.
15. In accordance with customary industry practice, tax receipts,
insurance premium receipts, ledger sheets, payment history from
date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing,
underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to
document the Mortgage Loan or to service the Mortgage Loan.
In the event an Officer's Certificate of the Company is delivered
to the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 60 days of the Closing Date, an Officer's Certificate which shall (i)
identify the recorded document, (ii) state that the recorded document has not
been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will
be delivered to the Custodian. The Company shall be required to deliver to
the Custodian the applicable recorded document by the date specified in (iv)
above. An extension of the date specified in (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT D-1
CUSTODIAL ACCOUNT CERTIFICATION
_____________________, 199__
First Nationwide Mortgage Corporation hereby certifies that it has
established the account described below as a Custodial Account pursuant to
Section 4.04 of the Seller's Warranties and Servicing Agreement, dated as of
November 1, 1997, Conventional Residential Fixed Rate Mortgage Loans, Group
_________.
Title of Account: First Nationwide Mortgage Corporation in trust for the
Purchaser, Group 97-FN-01.
Account Number: ___________________
Address of office or branch
of the Company at
which Account is maintained:
-------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
FIRST NATIONWIDE MORTGAGE
CORPORATION
Company
By: __________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT D-2
CUSTODIAL ACCOUNT LETTER AGREEMENT
___________, 1997
To: ------------------------
------------------------
------------------------
(the "Depository")
As Company under the Seller's Warranties and Servicing Agreement,
dated as of November 1, 1997, Conventional Residential Fixed Rate Mortgage
Loans, Group _________ (the "Agreement"), we hereby authorize and request you
---------
to establish an account, as a Custodial Account pursuant to Section 4.04 of
the Agreement, to be designated as "First Nationwide Mortgage Corporation, in
trust for the Purchaser - Conventional Residential Fixed Rate MortgageLoans -
Group 97-FN-01." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Company. You may refuse any deposit which
would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate.
Please execute and return one original to us.
FIRST NATIONWIDE MORTGAGE
CORPORATION
Company
By: ___________________________
Name: _________________________
Title: ________________________
Date: ________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at
the office of the Depository indicated above, and agrees to honor withdrawals
on such account as provided above. The full amount deposited at any time in
the account will be insured by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund ("BIF") or the Savings Association Insurance
---
Fund ("SAIF").
----
_________________________
Depository
By: ______________________
Name:_____________________
Title:____________________
Date:_____________________
EXHIBIT E-1
ESCROW ACCOUNT CERTIFICATION
__________________, 1997
First Nationwide Mortgage Corporation hereby certifies that it has
established the account described below as an Escrow Account pursuant to
Section 4.06 of the Seller's Warranties and Servicing Agreement, dated as of
November1, 1997,Conventional ResidentialFixed RateMortgage Loans,Group 97-FN-
01.
Title of Account: "First Nationwide Mortgage Corporation, in trust for the
Purchaser, Group 97-FN-01, and various Mortgagors."
Account Number: _______________________
Address of office or branch
of the Company at
which Account is maintained:
______________________________
______________________________
_______________________________
_______________________________
November 1, 1997
FIRST NATIONWIDE MORTGAGE
CORPORATION
Company
By: __________________________
Name: ________________________
Title: _______________________
EXHIBIT E-2
ESCROW ACCOUNT LETTER AGREEMENT
___________________, 199__
To:____________________________
____________________________
____________________________
(the "Depository")
As Company under the Seller's Warranties and Servicing Agreement,
dated as of November 1, 1997, Conventional Residential Fixed Rate Mortgage
Loans, Group 97-FN-01 (the "Agreement"), we hereby authorize and request you
---------
to establish an account, as an Escrow Account pursuant to Section 4.07 of the
Agreement, to be designated as "First Nationwide Mortgage Corporation, in
trust for the Purchaser - Conventional Residential Fixed Rate Mortgage Loans
- - Group 97-FN-01." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Company. You may refuse any
deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
FIRST NATIONWIDE MORTGAGE
CORPORATION
Company
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through
the Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund
---
("SAIF").
----
_______________________
Depository
By:_____________________
Name:___________________
Title:___________________
Date:____________________
EXHIBIT F
MONTHLY REMITTANCE ADVICE
Exhibit 99.2
Original Net Maturity
Pool ID Balance Balance WAC WAC WAM WALA Date Group
4091427 390,329.30 400,000.00 7.25000 7.75000 172 8 20120301 1
4095519 383,469.86 388,000.00 7.50000 8.00000 176 4 20120701 1
4123766 288,046.15 295,500.00 6.75000 7.25000 172 8 20120301 1
4128732 256,573.44 263,000.00 7.12500 7.62500 172 8 20120301 1
4133799 522,496.86 534,000.00 7.00000 7.50000 173 7 20120401 1
4134383 261,589.41 268,000.00 7.37500 7.87500 172 8 20120301 1
4136172 248,834.90 255,000.00 7.25000 7.75000 172 8 20120301 1
4152732 184,551.95 189,000.00 7.12500 7.62500 174 6 20120501 1
4166666 278,467.69 282,000.00 6.75000 7.25000 177 3 20120801 1
4166930 331,027.59 337,500.00 6.87500 7.37500 174 6 20120501 1
4170163 579,256.13 590,000.00 7.12500 7.62500 174 6 20120501 1
4205100 95,941.88 100,000.00 7.75000 8.25000 175 5 20120601 1
4205365 236,800.23 239,700.00 7.25000 7.75000 176 4 20120701 1
4213856 225,610.05 229,000.00 7.37500 7.87500 175 5 20120601 1
4216040 253,735.67 256,800.00 7.25000 7.75000 176 4 20120701 1
4218558 246,177.31 250,000.00 7.00000 7.50000 175 5 20120601 1
4218855 321,121.87 325,000.00 7.25000 7.75000 176 4 20120701 1
4218996 296,213.36 300,150.00 7.50000 8.00000 176 4 20120701 1
4220174 137,905.01 140,000.00 7.25000 7.75000 175 5 20120601 1
4225413 610,722.23 620,000.00 7.25000 7.75000 175 5 20120601 1
4225421 369,266.02 375,000.00 7.00000 7.50000 175 5 20120601 1
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