EXECUTION COPY
________________________________________________________________________________
________________________________________________________________________________
DLJ MORTGAGE ACCEPTANCE CORP.,
Depositor,
TEMPLE-INLAND MORTGAGE CORPORATION
Master Servicer,
and
BANKERS TRUST COMPANY,
Trustee
_________________________________
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1995
_________________________________
Mortgage Pass-Through Certificates
Series 1995-Q7
________________________________________________________________________________
________________________________________________________________________________
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. . . . . . . . . . . . . . . . . . . . . . 2
Accretion Termination Date. . . . . . . . . . . . . . . . . . . . . . . 2
Accrued Certificate Interest. . . . . . . . . . . . . . . . . . . . . . 2
Adjustment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Anniversary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Assignment Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Available Distribution Amount . . . . . . . . . . . . . . . . . . . . . 3
Bankruptcy Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bankruptcy Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Book-Entry Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 4
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cash Liquidation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Certificate Account . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Certificate Account Deposit Date. . . . . . . . . . . . . . . . . . . . 5
Certificateholder" or "Holder . . . . . . . . . . . . . . . . . . . . . 5
Certificate Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Certificate Principal Balance . . . . . . . . . . . . . . . . . . . . . 5
Certificate Register. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class A-1 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class A-1 Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class A-2 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class A-2 Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class B Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Class B Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Class B Prepayment Percentage . . . . . . . . . . . . . . . . . . . . . 7
Class P Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Class P Distribution Amount . . . . . . . . . . . . . . . . . . . . . . 7
Class R-I Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Accrual Amount . . . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 8
Class R-II Percentage . . . . . . . . . . . . . . . . . . . . . . . . . 8
Class SA Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Class SB Accrual Amount . . . . . . . . . . . . . . . . . . . . . . . . 9
Class SB Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Class SP Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Collateral Value. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . 9
Custodial Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Cut-off Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Debt Service Reduction. . . . . . . . . . . . . . . . . . . . . . . . . 10
Deficient Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Definitive Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 10
Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Depository. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Determination Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Discount Fraction . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Discount Mortgage Loan. . . . . . . . . . . . . . . . . . . . . . . . . 10
Discount Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Disqualified Organization . . . . . . . . . . . . . . . . . . . . . . . 10
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Due Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Due Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Xxxx & Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Eligible Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Eligible Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Bankruptcy Loss. . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Fraud Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Proceeds Account . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Special Hazard Loss. . . . . . . . . . . . . . . . . . . . . . . 12
Extraordinary Events. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Extraordinary Losses. . . . . . . . . . . . . . . . . . . . . . . . . . 13
FDIC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
FHLMC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Fixed Strip Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
FNMA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Fraud Loss Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Fraud Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Funding Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Gross Margin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Initial Certificate Principal Balance . . . . . . . . . . . . . . . . . 14
Initial Loss Coverage . . . . . . . . . . . . . . . . . . . . . . . . . 14
Initial Class A-1 Percentage. . . . . . . . . . . . . . . . . . . . . . 14
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Initial Class A-2 Percentage. . . . . . . . . . . . . . . . . . . . . . 14
Initial Class B Percentage. . . . . . . . . . . . . . . . . . . . . . . 14
Initial Class R-I Percentage. . . . . . . . . . . . . . . . . . . . . . 14
Initial Subordinate Percentage. . . . . . . . . . . . . . . . . . . . . 14
Insurance Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Insurance Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Interim Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . 15
Interim Servicing Period. . . . . . . . . . . . . . . . . . . . . . . . 15
Interim Subservicer . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Late Collections. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Liquidation Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Loan-to-Value Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Master Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Maximum Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Minimum Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Monthly Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Moody's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mortgage File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Mortgage Loan Purchase Agreement. . . . . . . . . . . . . . . . . . . . 16
Mortgage Loan Schedule. . . . . . . . . . . . . . . . . . . . . . . . . 16
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mortgaged Property. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Net Mortgage Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Non-Discount Mortgage Loan. . . . . . . . . . . . . . . . . . . . . . . 18
Nonrecoverable Advance. . . . . . . . . . . . . . . . . . . . . . . . . 18
Non-United States Person. . . . . . . . . . . . . . . . . . . . . . . . 18
Notional Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 19
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Original Senior Percentage. . . . . . . . . . . . . . . . . . . . . . . 19
OTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Outstanding Class SB Unpaid Interest Amount . . . . . . . . . . . . . . 19
Outstanding Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . 19
Ownership Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Percentage Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Periodic Rate Cap . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Permitted Instruments . . . . . . . . . . . . . . . . . . . . . . . . . 20
Permitted Transferee. . . . . . . . . . . . . . . . . . . . . . . . . . 21
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pool Strip Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Prepayment Assumption . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prepayment Interest Shortfall . . . . . . . . . . . . . . . . . . . . . 22
Prepayment Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Primary Hazard Insurance Policy . . . . . . . . . . . . . . . . . . . . 22
Principal Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prospective Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Regular Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 23
REMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
REMIC I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
REMIC I Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 24
REMIC II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
REMIC II Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 24
REMIC Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
REO Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
REO Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
REO Imputed Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 24
REO Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REO Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Request for Release . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Residual Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . 25
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Scheduled Principal and Net Recoveries. . . . . . . . . . . . . . . . . 25
Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Seller's Warranty Certificate . . . . . . . . . . . . . . . . . . . . . 26
Senior Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Senior Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Senior Prepayment Percentage. . . . . . . . . . . . . . . . . . . . . . 26
Servicing Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Servicing Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Servicing Fee Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Single Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Special Hazard Amount . . . . . . . . . . . . . . . . . . . . . . . . . 28
Special Hazard Loss . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Special Hazard Percentage . . . . . . . . . . . . . . . . . . . . . . . 28
Standard & Poor's" or "S&P. . . . . . . . . . . . . . . . . . . . . . . 28
Startup Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Stated Principal Balance. . . . . . . . . . . . . . . . . . . . . . . . 28
Structured Fraction . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Structured Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Sub-Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Sub-Servicer Remittance Date. . . . . . . . . . . . . . . . . . . . . . 29
Sub-Servicing Account . . . . . . . . . . . . . . . . . . . . . . . . . 29
Sub-Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . . 29
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Total Expected Losses . . . . . . . . . . . . . . . . . . . . . . . . . 29
Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Transferor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Trust Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Uncertificated Accrued Interest . . . . . . . . . . . . . . . . . . . . 30
Uncertificated Pass-Through Rate. . . . . . . . . . . . . . . . . . . . 30
Uncertificated REMIC I Regular Interests X. . . . . . . . . . . . . . . 30
Uncertificated REMIC I Regular Interests Y" . . . . . . . . . . . . . . 31
Uncertificated REMIC I Regular Interests Z. . . . . . . . . . . . . . . 31
Uncertificated REMIC I Regular Interests Y Principal Balance. . . . . . 31
Uncertificated REMIC I Regular Interests Z Principal Balance. . . . . . 31
Uncertificated REMIC I Regular Interests. . . . . . . . . . . . . . . . 31
Uncertificated REMIC I Regular Interests X Distribution Amount. . . . . 31
Uncertificated REMIC I Regular Interests Y Distribution Amount. . . . . 31
Uncertificated REMIC I Regular Interests Z Distribution Amount. . . . . 31
Uninsured Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States Person. . . . . . . . . . . . . . . . . . . . . . . . . . 32
Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans . . . . . . . . . . . . . . . . . . 33
2.02. Acceptance of the Trust Fund by the Trustee. . . . . . . . . . . 36
2.03. Representations, Warranties and Covenants of the Master Servicer
and the Depositor. . . . . . . . . . . . . . . . . . . . . . . . 37
2.04. Representations and Warranties of the Seller . . . . . . . . . . 39
2.05. Issuance of Certificates Evidencing Interests in REMIC I.. . . . 40
2.06. Conveyance of Uncertificated REMIC I Regular Interests; Acceptance
by the Trustee.. . . . . . . . . . . . . . . . . . . . . . . . . 40
2.07. Issuance of Certificates Evidencing Interest in REMIC II.. . . . 40
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
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3.01. Master Servicer to Act as Master Servicer. . . . . . . . . . . . 42
3.02. Sub-Servicing Agreements Between Master Servicer and Sub-
Servicers . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.03. Successor Sub-Servicers. . . . . . . . . . . . . . . . . . . . . 44
3.04. Liability of the Master Servicer . . . . . . . . . . . . . . . . 44
3.05. No Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders . . . . . . . . . . . . . . . . . . . . . . . 45
3.06. Assumption or Termination of Sub-Servicing Agreements by Trustee 45
3.07. Collection of Certain Mortgage Loan Payments . . . . . . . . . . 45
3.08. Sub-Servicing Accounts . . . . . . . . . . . . . . . . . . . . . 46
3.09. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.10. Custodial Account. . . . . . . . . . . . . . . . . . . . . . . . 47
3.11. Permitted Withdrawals From the Custodial Account . . . . . . . . 48
3.12. Permitted Instruments. . . . . . . . . . . . . . . . . . . . . . 49
3.13. Maintenance of Primary Hazard Insurance. . . . . . . . . . . . . 50
3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements. . . . 51
3.15. Realization Upon Defaulted Mortgage Loans. . . . . . . . . . . . 52
3.16. Trustee to Cooperate; Release of Mortgage Files. . . . . . . . . 53
3.17. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . 54
3.18. Maintenance of Certain Servicing Policies. . . . . . . . . . . . 54
3.19. Annual Statement as to Compliance. . . . . . . . . . . . . . . . 55
3.20. Annual Independent Public Accountants' Servicing Statement . . . 55
3.21. Access to Certain Documentation. . . . . . . . . . . . . . . . . 55
3.22. Title, Conservation and Disposition of REO Property. . . . . . . 56
3.23. Additional Obligations of the Master Servicer. . . . . . . . . . 59
3.24. Additional Obligations of the Depositor . . . . . . . . . . . 59
3.25 Excess Proceeds Account. . . . . . . . . . . . . . . . . . . . . 59
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Certificate Account; Distributions . . . . . . . . . . . . . . . 62
4.02. Statements to Certificateholders . . . . . . . . . . . . . . . . 70
4.03. Remittance Reports; Advances by the Master Servicer. . . . . . . 72
4.04. Allocation of Realized Losses. . . . . . . . . . . . . . . . . . 73
4.05. Information Reports to be Filed by the Master Servicer . . . . . 75
4.06. Compliance with Withholding Requirements . . . . . . . . . . . . 75
4.07. Distributions on the Uncertificated REMIC I Regular Interests. . 75
ARTICLE V
THE CERTIFICATES
5.01. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . 77
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5.02. Registration of Transfer and Exchange of Certificates. . . . . . 79
5.03. Mutilated, Destroyed, Lost or Stolen Certificates. . . . . . . . 83
5.04. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
6.01. Liability of the Depositor and the Master Servicer . . . . . . . 85
6.02. Merger, Consolidation or Conversion of the Depositor or the Master
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.03. Limitation on Liability of the Depositor, the Master Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.04. Limitation on Resignation of the Master Servicer . . . . . . . . 86
ARTICLE VII
DEFAULT
7.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 87
7.02. Termination Event. . . . . . . . . . . . . . . . . . . . . . . . 89
7.03. Trustee to Act; Appointment of Successor.. . . . . . . . . . . . 89
7.04. Notification to Certificateholders . . . . . . . . . . . . . . . 90
7.05. Waiver of Events of Default. . . . . . . . . . . . . . . . . . . 91
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . 92
8.02. Certain Matters Affecting the Trustee. . . . . . . . . . . . . . 93
8.03. Trustee Not Liable for Certificates or Mortgage Loans. . . . . . 94
8.04. Trustee May Own Certificates . . . . . . . . . . . . . . . . . . 95
8.05. Master Servicer to Pay Trustee's Fees. . . . . . . . . . . . . . 95
8.06. Eligibility Requirements for Trustee . . . . . . . . . . . . . . 95
8.07. Resignation and Removal of the Trustee . . . . . . . . . . . . . 96
8.08. Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . 97
8.09. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . 97
8.10. Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . 97
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
vii
Page
____
9.02. Termination of REMIC II. . . . . . . . . . . . . . . . . . . . . 101
9.03. Additional Termination Requirements. . . . . . . . . . . . . . . 101
10.01. REMIC Administration . . . . . . . . . . . . . . . . . . . . . . 102
10.02. Prohibited Transactions and Activities . . . . . . . . . . . . . 105
10.03. Master Servicer and Trustee Indemnification. . . . . . . . . . . 105
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
11.02. Recordation of Agreement; Counterparts . . . . . . . . . . . . . 107
11.03. Limitation on Rights of Certificateholders . . . . . . . . . . . 107
11.04. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.05. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.06. Severability of Provisions . . . . . . . . . . . . . . . . . . . 109
11.07. Successors and Assigns; Third Party Beneficiary. . . . . . . . . 109
11.08. Article and Section Headings . . . . . . . . . . . . . . . . . . 109
11.09. Notice to Rating Agencies and Certificateholder. . . . . . . . . 109
Signatures
Acknowledgments
viii
Exhibits
________
Exhibit A Form of Senior Certificate
Exhibit B-1 Form of Class B Certificate
Exhibit B-2 Form of Class SB Certificate
Exhibit B-3 Form of Class R Certificate
Exhibit C Form of Trustee Initial Certification
Exhibit D Form of Trustee Final Certification
Exhibit E [Reserved]
Exhibit F-1 Request for Release
Exhibit F-2 Request for Release for Mortgage Loans Paid in Full
Exhibit G-1 Form of Investor Representation Letter
Exhibit G-2 Form of Transferor Representation Letter
Exhibit G-3 Transferor Affidavit and Agreement for Transfers
to Non-United States Persons
Exhibit G-4 Transferee Affidavit and Agreement for Transfers
to Non-United States Persons
Exhibit G-5 Form of Investor Representation Letter for Insurance
Companies
Exhibit H Form of Rule 144A Investment Representation
Exhibit I Mortgage Loan Schedule
Exhibit J Seller Representations and Warranties
Exhibit K Form of Notice Under Section 3.24
ix
This Pooling and Servicing Agreement, dated and effective as of
November 1, 1995, among DLJ Mortgage Acceptance Corp., as Depositor (the
"Depositor"), Temple-Inland Mortgage Corporation, as Master Servicer (the
"Master Servicer"), and Bankers Trust Company, as Trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the Trustee will
cause an election to be made to treat the entire segregated pool of assets
described in the definition of REMIC I (as defined herein) subject to this
Agreement (including the Mortgage Loans) as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes and such segregated pool of
assets will be designated as the "REMIC I." The Uncertificated REMIC I Regular
Interests (as defined herein) will be "regular interests in REMIC I and the
Class R-I Certificates will represent ownership of the sole Class of "residual
interests" in REMIC I for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. A segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests will be designated as "REMIC II", and
the Trustee will make a separate REMIC election with respect thereto. The Class
SA Certificates, Class SP Certificates, the Class A-1 Certificates, the Class A-
2 Certificates, Class P Certificates, the Class B Certificates and the Class SB
Certificates, will be the "regular interests" in REMIC II, and the Class R-II
Certificates will represent ownership of the sole Class of "residual interests"
in REMIC II.
The following table sets forth the designation, initial Pass-Through
Rate, aggregate Initial Certificate Principal Balance (as defined herein), and
the initial percentage for each Class of Certificates comprising the
certificated interests in the Trust Fund created hereunder.
Aggregate Initial
Initial Certificate Approximate
Pass-Through Principal Initial Class
Designation Type Rate Balance Percentage
___________ ____ ____________ _________________ _____________
Class SA Senior 2.527% N/A N/A
Class SP Senior 0.000% N/A N/A
Class A-1 Senior 6.50% $51,805,859.00 82.24%
Class A-2 Senior 6.50% $7,248,574.00 11.51%
Class P Principal Only 0.00% $37,207.00 N/A
Class B Subordinate 6.50% $3,939,443.44 6.25%
Class SB Subordinate 1.250% N/A N/A
Class R-I Residual N/A N/A N/A
Class R-II Residual 6.50% $0.00 0.00%
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As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to $63,031,083.44.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"Accretion Termination Date": With respect to the Class SB
Certificates, the Distribution Date on which the aggregate Class SB Accrual
Amount distributed as principal to the Class A-1 Certificates, the Class A-2
Certificates and the Class B Certificates in reduction of the Certificate
Principal Balances thereof on such Distribution Date and all preceding
Distribution Dates equals 3.25% times the aggregate Certificate Principal
Balance of all Classes of the Certificates as of the Cut-off Date. With respect
to the Class R-II Certificates, the Distribution Date on which the Certificate
Principal Balance of the Class B Certificates is reduced to zero.
"Accrued Certificate Interest": With respect to each Distribution
Date, as to any Class A-1 Certificate, Class A-2 Certificate, Class B
Certificate or Class R-II Certificate, one month's interest accrued at the then
applicable Pass-Through Rate on the Certificate Principal Balance thereof
immediately prior to such Distribution Date. With respect to each Distribution
Date, as to the Class SA Certificates, Class SP Certificates and the Class SB
Certificates, one month's interest accrued at the then applicable Pass-Through
Rate on the Notional Amount immediately prior to such Distribution Date.
Accrued Certificate Interest will be calculated on the basis of a 360-day year
consisting of twelve 30-day months. In each case Accrued Certificate Interest
on any such Class of Certificates will be reduced by the amount of
(i) Prepayment Interest Shortfalls, if any, which are not covered by payments by
the Master Servicer pursuant to Section 3.23 with respect to such Distribution
Date, (ii) the interest portion (adjusted to the Net Mortgage Rate) of Realized
Losses (including Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses) not allocated solely to the Class A-
2 Certificates, the Class B Certificates, the Class SB Certificates or the Class
R-II Certificates pursuant to Section 4.04, (iii) the interest portion of
Advances previously made with respect to a Mortgage Loan or REO Property which
remained unreimbursed following the Cash Liquidation or REO Disposition of such
Mortgage Loan or REO Property that were made with respect to delinquencies that
ultimately constituted Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, and (iv) any other interest
shortfalls not covered by the subordination provided by the Class A-2
Certificates, the Class B Certificates, the Class SB Certificates and the Class
R-II Certificates, including interest that is not collectible from the Mortgagor
pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, or
similar legislation or regulations as in effect from time to time, with all such
reductions allocated among all of the Certificates on a pro rata basis in
proportion to their respective amounts of Accrued Certificate Interest which
would have resulted absent such reductions. In addition to that portion of the
reductions described in the preceding
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sentence that are allocated to the Class A-2 Certificates, the Class B
Certificates, the Class SB Certificates or the Class R-II Certificates, Accrued
Certificate Interest on the Class A-2 Certificates, the Class B Certificates,
the Class SB Certificates or the Class R-II Certificates, as applicable, will be
reduced by the interest portion (adjusted to the Net Mortgage Rate) of the
portion of Realized Losses that are allocated solely to the Class A-2
Certificates, the Class B Certificates, the Class SB Certificates or the Class
R-II Certificates, as applicable, pursuant to Section 4.04. Furthermore,
Accrued Certificate Interest on the Class R-II Certificates will be further
reduced by any payments made to the Certificateholders pursuant to Sections
4.01(b)(xi), (xii) and (xiii).
"Adjustment Date": With respect to each Mortgage Loan, the date set
forth in the related Mortgage Note on which the Mortgage Rate may change and
each semi-annual anniversary of such date. The first Adjustment Date as to each
Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan, any advance made by the Master
Servicer on any Distribution Date pursuant to Section 4.03.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof.
"Anniversary": Each anniversary of November 1, 1995.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
"Assignment Agreement": The assignment agreement dated as of the
Closing Date, between DLJMCI and the Depositor.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the balance on deposit in the
Custodial Account as of the close of business on the related Determination Date
and (ii) the aggregate amount of any Advances made, all required transfers
pursuant to Section 3.22 and all amounts required to be paid by the Master
Servicer pursuant to Sections 3.13 and 3.23 by deposits into the Certificate
Account on the immediately preceding Certificate Account Deposit Date, reduced
by (b) the sum, as of the close of business on the related Determination Date,
of (i) Monthly Payments collected but due during a Due Period subsequent to the
Due Period ending on the first day of the month of the related Distribution
Date, (ii) all interest or other income earned on deposits in the Custodial
Account, (iii) any other amounts reimbursable or payable to the Master Servicer
or any Sub-Servicer pursuant to Section 3.11, and (iv) Insurance Proceeds,
Liquidation Proceeds, Principal Prepayments, REO Proceeds and the proceeds of
Mortgage Loan purchases made pursuant to Section 2.02, 2.04 or 3.22, in each
case received or made in the month of such Distribution Date.
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"Bankruptcy Amount": As of any date of determination prior to
November 1, 1996, an amount, equal to the excess, if any, of (A) $100,000.00
(the initial "Bankruptcy Amount"), over (B) the aggregate amount of Bankruptcy
Losses allocated solely to the Class A-2 Certificates, the Class B Certificates,
the Class SB Certificates or the Class R-II Certificates in accordance with
Section 4.04. As of any date of determination on or after November 1, 1996, an
amount equal to the excess, if any, of (1) the lesser of (a) the Bankruptcy
Amount calculated as of the close of business on the Business Day immediately
preceding the most recent Anniversary (for purposes of this definition, the
"Relevant Anniversary") and (b) the greater of (i) 0.15% times the aggregate
principal balance of the Mortgage Loans as of the Relevant Anniversary; and (ii)
$100,000.00 over (2) the aggregate amount of Bankruptcy Losses allocated solely
to the Class A-2 Certificates, the Class B Certificates, the Class SB
Certificates or the Class R-II Certificates, in accordance with Section 4.04
since the Relevant Anniversary.
The Bankruptcy Amount may be further reduced by the Depositor
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Depositor shall obtain written
confirmation from the Rating Agency that such reduction shall not adversely
affect the then-current rating assigned to the Certificates by the Rating Agency
and shall provide a copy of such written confirmation to the Trustee.
"Bankruptcy Code": The Bankruptcy Code of 1978, as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Realized Loss
resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Texas (and such other
state or states in which the Custodial Account or the Certificate Account are at
the time located) or in the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to
close.
"Cash Liquidation": As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, the final receipt by or
on behalf of the Master Servicer of all Insurance Proceeds, Liquidation Proceeds
and other payments or cash recoveries which the Master Servicer reasonably and
in good faith expects to be finally recoverable with respect to such Mortgage
Loan.
"Certificate": Any Class SA, Class SP, Class A-1, Class A-2, Class P,
Class B, Class SB, Class R-I or Class R-II Certificate.
"Certificate Account": The trust account or accounts created and
maintained pursuant to Section 4.01, which shall be entitled "Bankers Trust
Company, in trust for registered
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holders of Mortgage Pass-Through Certificates, Series 1995-Q7, and which account
or accounts must each be an Eligible Account.
"Certificate Account Deposit Date": As to any Distribution Date, the
Business Day prior thereto.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, neither a
Disqualified Organization nor a non-United States Person shall be a Holder of a
Class R-I or Class R-II Certificate for any purposes hereof and, solely for the
purposes of giving any consent pursuant to this Agreement, any Certificate,
other than a Class R-I Certificate or Class R-II Certificate, registered in the
name of the Depositor or the Master Servicer or any affiliate thereof shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee shall be entitled to rely upon
a certification of the Depositor or the Master Servicer in determining if any
Certificates are registered in the name of a respective affiliate. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee shall be required to recognize as a
"Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate, as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Principal Balance": With respect to each Class A-1
Certificate, Class A-2 Certificate or Class P Certificate, on any date of
determination, an amount equal to (i) the Initial Certificate Principal Balance
of such Certificate as specified on the face thereof, minus (ii) the sum of (a)
the aggregate of all amounts previously distributed with respect to such
Certificates (or any predecessor Certificate) and applied to reduce the
Certificate Principal Balance thereof pursuant to Section 4.01(b), and (b) the
aggregate of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously allocated to
such Certificate (or any predecessor Certificate) pursuant to Section 4.04;
provided, that if the Certificate Principal Balances of the Class B Certificates
and the Class R-II Certificates have been reduced to zero, the Certificate
Principal Balance of each Class A-2 Certificate, at any given time, shall
thereafter be an amount equal to (i) the Percentage Interest evidenced by such
Certificate times (ii) the excess, if any of (a) the then aggregate Stated
Principal Balance of the Mortgage Loans (or related REO Properties) over (b) the
aggregate Certificate Principal Balance of the Class A-1 Certificates. With
respect to each Class B Certificate, on any date of determination, an amount
equal to (i) the initial Certificate Principal Balance of such Class B
Certificate, as specified on the face thereof, minus (ii) the sum of (a)
-16-
the aggregate of all amounts previously distributed with respect to such
Certificate (or any predecessor Certificate) and applied to reduce the
Certificate Principal Balance thereof pursuant to Section 4.01(b), and (b) the
aggregate of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously allocated to
such Certificate (or any predecessor Certificate) pursuant to Section 4.04;
provided that if the Certificate Principal Balance of the Class R-II
Certificates has been reduced to zero, the Certificate Principal Balance of each
Class B Certificate, at any given time, shall thereafter be an amount equal to
(i) the Percentage Interest evidenced by such Certificate times (ii) the excess,
if any, of (a) the then aggregate Stated Principal Balance of the Mortgage Loans
(or related REO Properties) over (b) the sum of the then aggregate Certificate
Principal Balance of all of the Class A-1 Certificates and Class A-2
Certificates. With respect to each Class R-II Certificate, on any date of
determination, an amount equal to the Percentage Interest evidenced thereby
multiplied by the excess, if any, of (x) the then aggregate Stated Principal
Balance of the Mortgage Loans over (y) the then aggregate Certificate Principal
Balances of the Senior Certificates and the Class B Certificates. The Class SA
Certificates, Class SP Certificates, Class SB Certificates and Class R-I
Certificates have no principal balances.
"Certificate Register": The register maintained pursuant to Section
5.02(a).
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class A-1 Certificate": Any one of the Class A-1 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, senior with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.04, and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
"Class A-1 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class A-1 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) (other than the aggregate of the related Discount Fraction of each
such Stated Principal Balance) immediately prior to such Distribution Date.
"Class A-2 Certificate": Any one of the Class A-2 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, subordinate to the Class SA Certificates, Class SP
Certificates, Class A-1 Certificates and Class P Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section
4.04, and evidencing an interest designated as a "regular interest" in REMIC II
for purposes of REMIC Provisions.
"Class A-2 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class A-2 Certificates
immediately prior to such Distribution
-17-
Date and the denominator of which is the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) (other than the aggregate
of the related Discount Fraction of each such Stated Principal Balance)
immediately prior to such Distribution Date; provided, that if the Certificate
Principal Balances of the Class B Certificates and Class R-II Certificates are
reduced to zero, then thereafter the Class A-2 Percentage as of any date of
determination shall be 100% minus the then applicable Class A-1 Percentage.
"Class B Certificate": Any one of the Class B Certificates executed,
authenticated and delivered by the Trustee substantially in the form annexed
hereto as Exhibit B-1, subordinate to the Senior Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section
4.04, and evidencing an interest designated as a "regular interest" in REMIC II
for purposes of the REMIC Provisions.
"Class B Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class B Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) (other than the aggregate of the related Discount Fraction of each
such Stated Principal Balance) immediately prior to such Distribution Date;
provided, that if the Certificate Principal Balance of the Class R-II
Certificates is zero on such Distribution Date, then the Class B Percentage as
of such date of determination shall be 100% minus the then applicable Senior
Percentage.
"Class B Prepayment Percentage": With respect to any Distribution
Date, 100% minus the Senior Prepayment Percentage for such Distribution Date.
"Class P Certificate": Any one of the Class P Certificates executed,
authenticated and delivered by the Trustee substantially in the form annexed
hereto as Exhibit A, evidencing an interest designated as a "regular interest"
in REMIC II for purposes of the REMIC Provisions.
"Class P Distribution Amount": With respect to any Distribution Date,
an amount equal to the aggregate of:
(1) the related Discount Fraction of the Scheduled Principal and Net
Recoveries on the Discount Mortgage Loans;
(2) the related Discount Fraction of the principal portion of all
Principal Prepayments received during the preceding calendar month on each
Discount Mortgage Loan;
(3) in connection with the Cash Liquidation or REO Disposition of a
Discount Mortgage Loan that occurred during the related Prepayment Period
and did not result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or
-18-
Extraordinary Losses, an amount equal to the lesser of (a) the applicable
Discount Fraction of the Stated Principal Balance of such Discount
Mortgage Loan net of the principal portion of any related Realized Loss
allocated to the Class P Certificates and (b) the aggregate amount of the
related collections to the extent applied as recoveries of principal on
such Discount Mortgage Loan;
(4) any amounts allocable to principal for any previous Distribution
Date (calculated pursuant to clauses (1) through (3) above) that remain
undistributed; and
(5) with respect to each Cash Liquidation or REO Disposition of a
Discount Mortgage Loan in connection with such Distribution Date or any
prior Distribution Date, to the extent that the amount included under
clause (3) above for such Distribution Date was less than the amount
described in subclause (a) under clause (3) an amount equal to the
aggregate of such shortfalls until paid in full; provided, that
distributions pursuant to this clause (5) shall only be made to the extent
of Eligible Funds on any Distribution Date.
"Class R-I Certificate": Any one of the Class R-I Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-3 and evidencing an interest designated as a
"residual interest" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Accrual Amount": With respect to each Distribution Date
on or before the related Accretion Termination Date, the amount of Accrued
Certificate Interest on the Class R-II Certificates on such Distribution Date,
to the extent such interest was not distributed to the Class R-II Certificates
on such Distribution Date in accordance with Section 4.01(d).
"Class R-II Certificate": Any one of the Class R-II Certificates,
executed, authenticated and delivered hereunder by the Trustee substantially in
the form annexed hereto as Exhibit B-3, as further described in the recitals
hereto, evidencing an interest designated as a "residual interest" in REMIC II
for purposes of the REMIC Provisions.
"Class R-II Percentage": With respect to any Distribution Date, a
percentage equal to 100% minus the sum of the then applicable Senior Percentage
and the then applicable Class B Percentage.
"Class SA Certificate": Any one of the Class SA Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, senior with respect to distributions and to the
allocation of Realized Losses as set forth in Section 4.04, and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
-19-
"Class SB Accrual Amount": With respect to each Distribution Date on
or before the related Accretion Termination Date, the amount of Accrued
Certificate Interest on the Class SB Certificates on such Distribution Date, to
the extent such interest was not distributed to the Class SB Certificates on
such Distribution Date in accordance with Section 4.01(d).
"Class SB Certificate": Any one of the Class SB Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-2, subordinate to the Senior Certificates and the
Class B Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.04, and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class SP Certificate": Any one of the Class SP Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, senior with respect to distributions and to the
allocation of Realized Losses as set forth herein, and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Closing Date": November 21, 1995.
"Code": The Internal Revenue Code of 1986.
"Collateral Value": The appraised value of a Mortgaged Property based
upon the lesser of (i) the appraisal (as reviewed and approved by the Seller)
made at the time of the origination of the related Mortgage Loan, or (ii) the
sales price of such Mortgaged Property at such time of origination. With
respect to a Mortgage Loan the proceeds of which were used to refinance an
existing mortgage loan, the appraised (as reviewed and approved by the Seller)
value of the Mortgaged Property based upon the appraisal (as reviewed and
approved by the Seller) obtained at the time of refinancing.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business related to
this Agreement shall be administered, which office at the date of the execution
of this Agreement is located at Four Albany Street, New York, New York 10006,
Attention: DLJ/Quality 1995-Q7.
"Custodial Account": The custodial account or accounts created and
maintained pursuant to Section 3.10 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.10 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
"Cut-off Date": November 1, 1995.
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"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
"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 the Mortgage Loan, which valuation
results from a proceeding initiated by the Mortgagor under the Bankruptcy Code.
"Definitive Certificate": Any definitive, fully registered
Certificate.
"Depositor": DLJ Mortgage Acceptance Corp., or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates is Cede
& Co. The Depository shall at all times be a "clearing corporation" as defined
in Section 8-102(3) of the Uniform Commercial Code of the Sate of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
"Determination Date": The 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of the month
of the related Distribution Date.
"Discount Fraction": With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is 6.50% minus the
excess of the Net Mortgage Rate over the Fixed Strip Rate for such Mortgage Loan
and the denominator of which is 6.50%. The Discount Fraction with respect to
each Discount Mortgage Loan is set forth on Exhibit K attached hereto.
"Discount Mortgage Loan": Any Mortgage Loan having an initial Net
Mortgage Rate less than 7.75%.
"Discount Rate": With respect to each Mortgage Loan, (a) prior to its
initial Adjustment Date, 0.00% per annum and (b) on and after its initial
Adjustment Date, a rate equal to the excess of the related Net Mortgage Rate
over the sum of the related Pool Strip Rate and Fixed Strip Rate.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) any foreign government, any international organization,
or any
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agency or instrumentality of any of the foregoing, (iii) any organization (other
than certain farmers' cooperatives described in Section 521 of the Code) which
is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), or rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (iv) any other Person so
designated by the Trustee based upon an Opinion of Counsel provided to the
Trustee that the holding of an ownership interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an ownership interest
in any Class of Certificates (other than such Person) to incur liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the transfer of an ownership interest in the Residual Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code.
"Distribution Date": The 25th day of any month, or if such 25th day
is not a Business Day, the Business Day immediately following such 25th day,
commencing on December 26, 1995.
"DLJMCI": DLJ Mortgage Capital, Inc., a Delaware corporation.
"Due Date": The first day of the month of the related Distribution
Date.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month of such
Distribution Date (or, with respect to the first Due Period, the day following
the Cut-off Date) and ending on the related Due Date.
"Duff & Xxxxxx": Xxxx & Xxxxxx Credit Rating Co. or its successor in
interest.
"Eligible Account": An account maintained with a federal or state
chartered depository institution (i) the short-term obligations of which are
rated by each of the Rating Agencies in its highest rating at the time of any
deposit therein, or (ii) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits in which account are otherwise secured such
that, as evidenced by an Opinion of Counsel (obtained by the Person requesting
that the account be held pursuant to this clause (ii)) delivered to the Trustee
prior to the establishment of such account, the Certificateholders will have a
claim with respect to the funds in such account and a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Instruments, each of which shall mature not later than the Business Day
immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Instrument is an obligation of the institution that maintains the Certificate
Account or Custodial Account) securing such funds that is superior to claims of
any other depositors or general creditors of the depository institution with
which such account is maintained or (iii) a trust account or accounts maintained
with a federal or state chartered depository institution or trust company with
trust powers acting in its fiduciary capacity or (iv) an account or accounts of
a depository institution acceptable to the Rating Agencies (as evidenced in
writing by the Rating Agencies that use of any such account as the
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Custodial Account, the Excess Proceeds Account or the Certificate Account will
not have an adverse effect on the then-current ratings assigned to the Classes
of the Certificates then rated by the Rating Agencies). Eligible Accounts may
bear interest.
"Eligible Funds": With respect to any Distribution Date, the balance
of the Available Distribution Amount remaining after the distribution of all
amounts required to be distributed pursuant to Section 4.01(b)(i), (iii), (v),
(vi) and (viii), the Class P Distribution Amount (determined without regard to
clause (5) thereof).
"Event of Default": One or more of the events described in Section
7.01.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion thereof,
which exceeds the then applicable Bankruptcy Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Proceeds": With respect to each Mortgage Loan as to which an
REO Disposition has occurred, the proceeds that are specified as being "Excess
Proceeds" in Section 3.22.
"Excess Proceeds Account": The separate account or accounts created
and maintained pursuant to Section 3.25, which shall be entitled "Bankers Trust
Company, in trust for registered holders of Mortgage Pass-Through Certificates,
Series 1995-Q7, Excess Proceeds Account," and which account or accounts shall be
an Eligible Account.
"Excess Special Hazard Loss": Any Special Hazard Loss, or portion
thereof, that exceeds the then applicable Special Hazard Amount.
"Extraordinary Events": Any of the following conditions with respect
to a Mortgaged Property or Mortgage Loan causing or resulting in a loss which
causes the liquidation of such Mortgage Loan:
(a) losses which are of a type that would be covered by the fidelity
bond and the errors and omissions insurance policy required to be
maintained pursuant to Section 3.18, but are in excess of the coverage
maintained thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, or remote or be in
whole or in part caused by, contributed to or aggravated by a peril covered
by the definition of the term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war, including
action in hindering, combatting or defending against an actual, impending
or expected attack;
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1. by any government or sovereign power, de jure or de facto, or by
any authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(d) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combatting or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority; or risks of contraband or illegal transportation or
trade.
"Extraordinary Losses": Any Realized Loss incurred on a Mortgage Loan
caused by or resulting from an Extraordinary Event.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Fixed Strip Rate": 1.250% per annum.
"FNMA": Federal National Mortgage Association or any successor.
"Fraud Loss Amount": With respect to any date of determination after
the Cut-off Date an amount equal to: (X) prior to the first Anniversary, an
amount equal to 3.00% of the aggregate outstanding principal balance of all of
the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to the Class A-2 Certificates, the Class B Certificates,
the Class SB Certificates or the Class R-II Certificates in accordance with
Section 4.04 since the Cut-off Date, (Y) from and including the first
Anniversary to but not including the second Anniversary, an amount equal to (1)
the lesser of (a) the Fraud Loss Amount as of the day immediately preceding the
first Anniversary and (b) 2.00% of the aggregate outstanding principal balance
of all of the Mortgage Loans as of the first Anniversary minus (2) the Fraud
Losses allocated solely to the Class A-2 Certificates, the Class B Certificates,
the Class SB Certificates and the Class R-II Certificates, in accordance with
Section 4.04 since the first Anniversary, and (Z) from and including the second
Anniversary to but not including the fifth Anniversary, an amount equal to (1)
the lesser of (a) the Fraud Loss Amount as of the most recent Anniversary and
(b) 1.00% of the aggregate outstanding principal balance of all of the Mortgage
Loans, as of the most recent Anniversary minus (2) the Fraud Losses allocated
solely to the Class A-2 Certificates, the Class B Certificates, the Class SB
Certificates
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and the Class R-II Certificates, in accordance with Section 4.04 since the most
recent Anniversary. On and after the fifth Anniversary the Fraud Loss Amount
shall be zero.
"Fraud Losses": Realized Losses on Mortgage Loans as to which there
was fraud in the origination of such Mortgage Loan.
"Funding Date": With respect to each Mortgage Loan, the date on which
funds were advanced by or on behalf of the Seller and interest began to accrue
thereunder.
"Gross Margin": With respect to each Mortgage Loan, the fixed rate
set forth in the related Mortgage Note to be added to the Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note used
to determine the Mortgage Rate for such Mortgage Loan. The Gross Margin as to
each Mortgage Loan is set forth on the Mortgage Loan Schedule.
"Index": The average of the interbank offered rates for six months
United States dollar deposits in the London market based on quotations of major
banks, as published in the Western Edition of THE WALL STREET JOURNAL, as most
recently available as of the date 45 days prior to any Adjustment Date. If such
Index is not so published or is otherwise unavailable, the Master Servicer shall
select an alternate index for mortgage loans on single family residential
properties that is calculated and published or otherwise made available by an
independent third party.
"Initial Certificate Principal Balance": With respect to each Class
of Certificates, the Certificate Principal Balance of such Class of Certificates
as of the Cut-off Date as set forth in the Preliminary Statement hereto.
"Initial Loss Coverage": The aggregate Initial Certificate Principal
Balance of the Class B Certificate, and 3.25% times the aggregate Initial
Certificate Principal Balance of the Certificates.
"Initial Class A-1 Percentage": As set forth in the Preliminary
Statement hereto.
"Initial Class A-2 Percentage": As set forth in the Preliminary
Statement hereto.
"Initial Class B Percentage": As set forth in the Preliminary
Statement hereto.
"Initial Class R-I Percentage": As set forth in the Preliminary
Statement hereto.
"Initial Subordinate Percentage": 6.25%.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
in respect of such Mortgage Loan.
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"Insurance Proceeds": Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Hazard Insurance Policy, any title insurance policy or
any other insurance policy covering a Mortgage Loan, to the extent such proceeds
are not applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the procedures that the Master Servicer
would follow in servicing mortgage loans held for its own account.
"Interim Servicing Agreement": Any Sub-Servicing Agreement between an
Interim Subservicer and the Master Servicer, as assignee, which is in existence
on the Closing Date and pursuant to which such Interim Subservicer shall be
obligated to service the related Mortgage Loans during the Interim Servicing
Period and to transfer the servicing for such Mortgage Loans to the Master
Servicer at the end of the Interim Servicing Period.
"Interim Servicing Period": The period from the Closing Date through
the close of business on November 29, 1995 during which the Interim Subservicers
shall service the related Mortgage Loans pursuant to the corresponding Interim
Servicing Agreements.
"Interim Subservicer": Each of the Seller and Lomas Mortgage USA,
Inc.
"Late Collections": With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
"Liquidation Proceeds": Amounts (other than Insurance Proceeds)
received by the Master Servicer in connection with the taking of an entire
Mortgaged Property by exercise of the power of eminent domain or condemnation or
in connection with the liquidation of a defaulted Mortgage Loan through
trustee's sale, foreclosure sale or otherwise, other than amounts received in
respect of any REO Property.
"Loan-to-Value Ratio": As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Collateral Value of the related Mortgaged Property.
"Master Servicer": Temple-Inland Mortgage Corporation, or any
successor master servicer appointed as herein provided.
"Maximum Rate": With respect to each Mortgage Loan, the amount set
forth in the Mortgage Note as the maximum Mortgage Rate thereunder.
"Minimum Rate": With respect to each Mortgage Loan, the amount set
forth in the Mortgage Note as the minimum Mortgage Rate thereunder.
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"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is payable
by a Mortgagor from time to time under the related Mortgage Note as originally
executed (after adjustment, if any, for Principal Prepayments and for Deficient
Valuations occurring prior to such Due Date, and after any adjustment by reason
of any bankruptcy or similar proceeding or any moratorium or similar waiver or
grace period).
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, deed of trust or any other instrument
securing the Mortgage Loan.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement; provided, that
whenever the term "Mortgage File" is used to refer to documents actually
received by the Trustee, such term shall not be deemed to include such
additional documents required to be added unless they are actually so added.
"Mortgage Loan": Each of the mortgage loans, transferred and assigned
to the Trustee pursuant to Section 2.01 or Section 2.03 and from time to time
held in the Trust Fund, the Mortgage Loans originally so transferred, assigned
and held being identified in the Mortgage Loan Schedule. As used herein, the
term "Mortgage Loan" includes the related Mortgage Note and Mortgage.
"Mortgage Loan Purchase Agreement": With respect to any Mortgage
Loan, the mortgage loan purchase agreements between the Seller and DLJMCI
pursuant to which the Seller sold such Mortgage Loan to DLJMCI and DLJMCI
purchased such Mortgage Loan from the Seller.
"Mortgage Loan Schedule": As of any date of determination, the
schedule of Mortgage Loans included in REMIC I. The initial schedule of
Mortgage Loans with accompanying information transferred on the Closing Date to
the Trustee as part of REMIC I for the Certificates, attached hereto as Exhibit
I (and, for purposes of the Trustee's review of the Mortgage Files pursuant to
Section 2.02, in computer-readable form as delivered to the Trustee), which list
shall set forth the following information with respect to each Mortgage Loan:
(i) the loan number and name of the Mortgagor;
(ii) the street address, city, state and zip code of the Mortgaged
Property;
(iii) the initial Mortgage Rate;
(iv) the maturity date;
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(v) the original principal balance;
(vi) the first payment date;
(vii) the type of Mortgaged Property;
(viii) the Monthly Payment in effect as of the Cut-off Date;
(ix) the principal balance as of the Cut-off Date;
(x) the Gross Margin;
(xi) the next Adjustment Date;
(xii) the Periodic Rate Cap;
(xiii) the Adjustment Date frequency;
(xiv) the Mortgage Rate as of the Cut-off Date;
(xv) the occupancy status;
(xvi) the purpose of the Mortgage Loan;
(xvii) the Collateral Value of the Mortgaged Property;
(xviii) the original term to maturity;
(xix) whether or not the Mortgage Loan provides for a Principal
Prepayment penalty;
(xx) the first Adjustment Date;
(xxi) the Minimum Rate and Maximum Rate;
(xxii) the paid-through date of the Mortgage Loan;
(xxiii) the credit grade of the Mortgagor;
(xxiv) the number of units in the Mortgaged Property;
(xxv) the Pool Strip Rate as of the Cut-off Date; and
(xxvi) the Interim Subservicer.
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The Mortgage Loan Schedule shall also set forth the total of the
amounts described under (ix) above for all of the Mortgage Loans. The Mortgage
Loan Schedule may be in the form of more than one schedule, collectively setting
forth all of the information required.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan, as adjusted from time to time
in accordance with the provisions of the Mortgage Note.
"Mortgaged Property": The underlying property securing a Mortgage
Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Net Mortgage Rate": As to each Mortgage Loan, a per annum rate of
interest equal to the Mortgage Rate as in effect from time to time minus the
Servicing Fee Rate.
"Non-Discount Mortgage Loan": Any Mortgage Loan that is not a
Discount Mortgage Loan.
"Nonrecoverable Advance": Any Advance previously made or proposed to
be made in respect of a Mortgage Loan which, in the good faith judgment of the
Master Servicer, will not or, in the case of a proposed Advance, would not be
ultimately recoverable from related Late Collections, Insurance Proceeds,
Liquidation Proceeds, REO Proceeds or amounts reimbursable to the Master
Servicer pursuant to Section 4.01(b). The determination by the Master Servicer
that it has made a Nonrecoverable Advance or that any proposed Advance would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate delivered to the Depositor and the Trustee.
"Non-United States Person": Any Person other than a United States
Person.
"Notional Amount": With respect to the Class SA Certificates and Class
SB Certificates, as of any date of determination, the aggregate Stated Principal
Balance of all of the Mortgage Loans and related REO Properties immediately
prior to such date, except that the initial Notional Amount for the Class SA
Certificates and Class SB Certificates shall be rounded down to the nearest
dollar increment. With respect to the Class SP Certificates, as of any date of
determination, the aggregate Discount Fraction of the Stated Principal Balances
of all of the Discount Mortgage Loans and related REO Properties immediately
prior to such date, except that the initial Notional Amount for the Class SP
Certificates shall be rounded down to the nearest dollar increment.
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"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president and by
the Treasurer, the Secretary, or one of the assistant treasurers or assistant
secretaries of the Master Servicer or of the Sub-Servicer and delivered to the
Depositor and Trustee.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel for the Depositor or the Master Servicer, reasonably acceptable to the
Trustee; except that any opinion of counsel relating to (a) the qualification of
any account required to be maintained pursuant to this Agreement as an Eligible
Account, (b) qualification of the Trust Fund as a REMIC, (c) compliance with the
REMIC Provisions or (d) resignation of the Master Servicer pursuant to Section
6.04 must be an opinion of counsel who (i) is in fact independent of the
Depositor and the Master Servicer, (ii) does not have any direct financial
interest or any material indirect financial interest in the Depositor or the
Master Servicer or in an affiliate of either and (iii) is not connected with the
Depositor or the Master Servicer as an officer, employee, director or person
performing similar functions.
"Original Senior Percentage": 93.75%, which is the fraction, expressed
as a percentage, the numerator of which is the aggregate Certificate Principal
Balance of the Class A-1 Certificates and the Class A-2 Certificates as of the
Closing Date and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans (other than the aggregate of the related
Discount Fraction of each such Stated Principal Balance) as of the Closing Date.
"OTS": Office of Thrift Supervision or any successor.
"Outstanding Class SB Unpaid Interest Amount": As of any Distribution
Date, an amount equal to (i) the aggregate of the Class SB Accrual Amounts for
all preceding Distribution Dates minus (ii) the aggregate amount of all previous
distributions to the Class SB Certificateholders pursuant to Section
4.01(b)(xix).
"Outstanding Mortgage Loan": As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in full, Cash Liquidation or REO Disposition and which was not purchased prior
to such Due Date pursuant to Sections 2.02, 2.03 or 2.04.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to each of the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates and the Class
R-II Certificates, on each Distribution Date, a rate equal to the weighted
average, expressed as a percentage, of the related Structured Rates of all
Mortgage Loans included in the Trust Fund as of the Due Date in the month next
preceding the month in which such Distribution Date occurs, weighted on the
basis
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of the respective Structured Fractions of the Stated Principal Balances of such
Mortgage Loans, which Stated Principal Balances shall be the Stated Principal
Balances of such Mortgage Loans at the close of business on the immediately
preceding Distribution Date after giving effect to distributions thereon
allocable to principal (or, in the case of the Pass-Through Rate for the initial
Distribution Date, at the close of business on the Cut-off Date). With respect
to the Class SA Certificates and any Distribution Date, a rate equal to the
weighted average, expressed as a percentage, of the Pool Strip Rates of all
Mortgage Loans included in the Trust Fund as of the Due Date in the month
immediately preceding the month in which such Distribution Date occurs, weighted
on the basis of the respective Stated Principal Balances of such Mortgage Loans,
which Stated Principal Balances shall be the Stated Principal Balances of such
Mortgage Loans at the close of business on the immediately preceding
Distribution Date after giving effect to distributions thereon allocable to
principal (or, in the case of the Pass-Through Rate for the initial Distribution
Date, at the close of business on the Cut-off Date). With respect to the Class
SP Certificates and any Distribution Date, a rate equal to the weighted average,
expressed as a percentage, of the Discount Rates on each of the Mortgage Loans
as of the Due Date in the month immediately preceding the month in which such
Distribution Date occurs, weighted on the basis of the respective Discount
Fractions of the Stated Principal Balances of the Mortgage Loans, which Stated
Principal Balances shall be the Stated Principal Balances of the Mortgage Loans
at the close of business on the immediately preceding Distribution Date after
giving effect to distributions thereon allocable to principal (or, in the case
of the Pass-Through Rate for the initial Distribution Date, at the close of
business on the Cut-off Date). With respect to the Class SB Certificates, the
Fixed Strip Rate.
"Percentage Interest": With respect to any Certificate (other than a
Residual Certificate), the undivided beneficial ownership interest in the
related Class evidenced by such Certificate, which as to each such Certificate
shall be equal to the initial Certificate Principal Balance (or Notional Amount,
as applicable) thereof divided by the aggregate initial Certificate Principal
Balance (or Notional Amount, as applicable) of all of the Certificates of the
same Class, expressed as a percentage carried to four decimal places. With
respect to a Residual Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage carried to
four decimal places, as stated on the face of such Certificate.
"Periodic Rate Cap": The provision in each Mortgage Note that limits
permissible increases and decreases in the Mortgage Rate on any Adjustment Date
to not more than 1% above or below the Mortgage Rate in effect immediately prior
to such Adjustment Date.
"Permitted Instruments": Any one or more of the following:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
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(ii) repurchase obligations (the collateral for which is held by a
third party or the Trustee) with respect to any security described in
clause (i) above, provided that the long-term unsecured obligations of the
party agreeing to repurchase such obligations are at the time rated by each
Rating Agency in one of its two highest long-term rating categories;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state thereof or the District of Columbia,
provided that the short-term commercial paper of such bank or trust company
(or, in the case of the principal depository institution in a depository
institution holding company, the long-term unsecured debt obligations of
the depository institution holding company) at the date of acquisition
thereof has been rated by each Rating Agency in its highest short-term
rating;
(iv) mutual funds organized under the Investment Company Act of 1940
rated not less than "A-1" by Standard & Poor's, not less than "P-1" by
Moody's and not less than "D-1" by Xxxx & Xxxxxx, if rated by Xxxx &
Xxxxxx;
(v) commercial paper (having original maturities of not more than
nine months) of any corporation incorporated under the laws of the United
States or any state thereof or the District of Columbia which on the date
of acquisition has been rated by each Rating Agency in its highest short-
term rating; and
(vi) any other obligation or security acceptable to each Rating Agency
(as certified by a letter from each Rating Agency to the Trustee) in
respect of mortgage pass-through certificates rated in one of its two
highest rating categories;
provided, that no such instrument shall be a Permitted Instrument if such
instrument evidences either (a) the right to receive interest only payments with
respect to the obligations underlying such instrument or (b) both principal and
interest payments derived from obligations underlying such instrument where the
principal and interest payments with respect to such instrument provide a yield
to maturity exceeding 120% of the yield to maturity at par of such underlying
obligation.
"Permitted Transferee": Any transferee of a Class R-I Certificate or
Class R-II Certificate other than a Non-United States Person or Disqualified
Organization.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pool Strip Rate": With respect to each Mortgage Loan, a fixed
percentage equal to the related Net Mortgage Rate minus 7.75% (but not less
than 0.00%) prior to the initial
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Adjustment Date thereof and a fixed percentage equal to the related Gross Margin
minus 2.55% thereafter.
"Prepayment Assumption": A constant prepayment rate ("CPR") of 18%
per annum, used solely for determining the rate of accrual of original issue
discount, market discount and amortizable premium on the Certificates for
federal income tax purposes. A CPR represents an annualized constant assumed
rate of prepayment each month of a pool of mortgage loans relative to its then
outstanding principal balance for the life of such mortgage loans.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a partial Principal
Prepayment or a Principal Prepayment in full during the related Prepayment
Period, an amount equal to the amount of interest that would have accrued at the
applicable Net Mortgage Rate on the principal balance of such Mortgage Loan
immediately prior to such prepayment, or in the case of a partial Principal
Prepayment on the amount of such prepayment, during the period commencing on the
date of prepayment, or in the case of a Principal Prepayment in full the date as
of which the prepayment is applied, and ending on the last day of the month of
prepayment.
"Prepayment Period": As to any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs.
"Primary Hazard Insurance Policy": Each primary hazard insurance
policy required to be maintained pursuant to the first or the second paragraph
of Section 3.13.
"Principal Prepayment": Any payment of principal made by the
Mortgagor 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.
"Prospective Losses": As of any Determination Date, an amount equal
to the sum of the following: (i) the product of (x) the aggregate Stated
Principal Balance of the related Mortgage Loans delinquent from 31 to 60 days,
(y) 25% and (z) the Loss Severity Percentage; (ii) the product of (x) the
aggregate Stated Principal Balance of the related Mortgage Loans delinquent 61
to 90 days, (y) 50% and (z) the Loss Severity Percentage; and (iii) the product
of (x) the aggregate Stated Principal Balance of the related Mortgage Loans
delinquent 91 days or more plus the aggregate Stated Principal Balance of any
related REO Properties and (y) the Loss Severity Percentage. For purposes of
calculating Prospective Losses, Mortgage Loans in foreclosure will be
categorized based on their respective number of days of delinquency.
"Purchase Price": With respect to any Mortgage Loan (or REO Property)
required to be purchased pursuant to Section 2.02 or 2.04 or that the Master
Servicer is entitled to repurchase pursuant to Section 3.22, an amount equal to
the sum of (i) 100% of the Stated Principal Balance thereof, (ii) unpaid accrued
interest (or REO Imputed Interest) at the applicable Net Mortgage Rate on the
Stated Principal Balance thereof outstanding during each Due
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Period that such interest was not paid or advanced, from the date through which
interest was last paid by the Mortgagor or advanced and distributed to
Certificateholders together with unpaid Servicing Fees from the date through
which interest was last paid by the Mortgagor, in each case to the first day of
the month in which such Purchase Price is to be distributed, plus (iii) the
aggregate of all Advances made in respect thereof that were not previously
reimbursed.
"Rating Agency": Moody's and Xxxx & Xxxxxx or their respective
successors. If such agency and its successors are no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating agency,
or other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee and Master Servicer. References
herein to the two highest long term debt rating categories of a Rating Agency
shall mean "Aa2" or better and references herein to the highest short-term debt
rating of a Rating Agency shall mean "Prime - 1" and in the case of any other
Rating Agency such references shall mean such rating categories without regard
to any plus or minus.
"Realized Loss": With respect to each Mortgage Loan or REO Property
as to which a Cash Liquidation or REO Disposition has occurred, an amount (not
less than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan
as of the date of Cash Liquidation or REO Disposition, plus (ii) interest (and
REO Imputed Interest, if any) at the Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced to Certificateholders up to the last
day of the month in which the Cash Liquidation or REO Disposition occurred on
the Stated Principal Balance of such Mortgage Loan outstanding during each Due
Period that such interest was not paid or advanced, minus (iii) the proceeds, if
any, received during the month in which such Cash Liquidation or REO Disposition
occurred, to the extent applied as recoveries of interest at the Net Mortgage
Rate and to principal of the Mortgage Loan, net of the portion thereof
reimbursable to the Master Servicer or any Sub-Servicer with respect to related
Advances not previously reimbursed. With respect to each Mortgage Loan which
has become the subject of a Deficient Valuation, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each Mortgage Loan which has become
the subject of a Debt Service Reduction, the amount of such Debt Service
Reduction.
"Record Date": The last Business Day of the month immediately
preceding the month of the related Distribution Date.
"Regular Certificate": Any of the Certificates other than the Class
R-I Certificates and Class R-II Certificates.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC
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election is to be made, consisting of: (i) the Mortgage Loans (exclusive of
payments of principal and interest due on or before the Cut-off Date, if any) as
from time to time are subject to this Agreement and all payments under and
proceeds of the Mortgage Loans (exclusive of any prepayment fees and late
payment charges received on the Mortgage Loans), together with all documents
included in the related Mortgage File, subject to Section 2.01; (ii) such funds
or assets as from time to time are deposited in the Custodial Account, the
Excess Proceeds Account or the Certificate Account; (iii) any REO Property; (iv)
the Primary Hazard Insurance Policies, if any, and all other Insurance Policies
with respect to the Mortgage Loans; and (v) the Depositor's interest in respect
of the representations and warranties made by the Seller in each Mortgage Loan
Purchase Agreement and in the Seller's Warranty Certificate as assigned to the
Trustee pursuant to Section 2.04 hereof.
"REMIC I Certificates": The Class R-I Certificates
"REMIC II": The segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests conveyed in trust to the Trustee for
the benefit of the holders of the Class SA, Class SP, Class A-1, Class A-2,
Class P, Class B, Class SB and Class R-II Certificates pursuant to Section 2.07,
with respect to which a separate REMIC election is to be made.
"REMIC II Certificates": Any of the Class SA, Class SP, Class A-1,
Class A-2, Class P, Class B, Class SB and Class R-II Certificates.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"REO Acquisition": The acquisition by the Master Servicer on behalf
of the Trustee for the benefit of the Certificateholders of any REO Property
pursuant to Section 3.15.
"REO Disposition": The final receipt by or on behalf of the Master
Servicer of all Insurance Proceeds, Liquidation Proceeds, REO Proceeds and other
payments and recoveries (including proceeds of a final sale) which the Master
Servicer expects to be finally recoverable from the sale or other disposition of
the REO Property.
"REO Imputed Interest": As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate that would have been
applicable to the related Mortgage Loan had it been outstanding) on the unpaid
principal balance of the Mortgage Loan as of the date of acquisition thereof (as
such balance is reduced pursuant to Section 3.15 by any income from the REO
Property treated as a recovery of principal).
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"REO Proceeds": Proceeds, net of directly related expenses, received
in respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property and of any REO Disposition) which
proceeds are required to be deposited into the Custodial Account as and when
received.
"REO Property": A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibits F-1 or F-2 attached hereto.
"Residual Certificate": Any of the Class R-I Certificates or Class R-
II Certificates.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer, any assistant trust officer, the Controller and any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Rule 144A": Rule 144A under the Securities Act of 1933, as amended,
as in effect from time to time.
"Scheduled Principal and Net Recoveries": With respect to any
Distribution Date, an amount equal to the aggregate of the following:
(1) the principal portion of each Monthly Payment on the Outstanding
Mortgage Loans due on the related Due Date, whether or not received on or
prior to the related Determination Date, less the principal portion of
related Debt Service Reductions which constitute Excess Bankruptcy Losses;
(2) the Stated Principal Balance of any Mortgage Loan repurchased
during the related Prepayment Period; and
(3) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds received during the related Prepayment Period
minus the aggregate amount of expenses incurred by the Master Servicer in
connection with the liquidation of the related Mortgage Loans to the extent
such expenses are not otherwise recoverable from such Insurance Proceeds,
Liquidation Proceeds or REO Proceeds; but only to the
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extent that any such amounts either (A) were not received in connection
with a Cash Liquidation or REO Disposition, or (B) were received in
connection with a Cash Liquidation or REO Disposition which resulted in an
Excess Special Hazard Loss, Excess Bankruptcy Loss, Excess Fraud Loss or
Extraordinary Loss.
"Seller": Quality Mortgage USA, Inc., and its successors and assigns.
"Seller's Warranty Certificate": The Seller's Warranty Certificate
dated the Closing Date and executed by the Seller with respect to the Mortgage
Loans purchased under the Mortgage Loan Purchase Agreement dated April 28, 1995
between the Seller and DLJMCI.
"Senior Certificate": Any of the Class SA Certificates, the Class SP
Certificates, the Class A-1 Certificates, the Class A-2 Certificates or the
Class P Certificates.
"Senior Percentage": With respect to any Distribution Date, the sum
of the then applicable Class A-1 Percentage and the then applicable Class A-2
Percentage.
"Senior Prepayment Percentage": The Senior Prepayment Percentage
shall equal, with respect to any Distribution Date, the percentage indicated
below:
Senior Prepayment
Distribution Date Percentage
_________________ _________________
December 1995 through 100%
November 2005
December 2005 through Senior Percentage, plus 70% of
November 2006 the difference between 100% and the Senior
Percentage
December 2006 through Senior Percentage, plus 60% of
November 2007 the difference between 100% and the Senior
Percentage
December 2007 through Senior Percentage, plus 40% of
November 2008 the difference between 100% and the Senior
Percentage
December 2008 through Senior Percentage, plus 20% of
November 2009 the difference between 100% and the Senior
Percentage
December 2009 and Senior Percentage;
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thereafter
provided, however, (i) that any scheduled reduction to the Senior Prepayment
Percentage described above shall not occur as of any Distribution Date unless
either (a)(1) the outstanding principal balance of Mortgage Loans delinquent 60
days or more (including foreclosure and REO Property) averaged over the last six
months, as a percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 2% and (2)
Realized Losses on the Mortgage Loans to date for such Distribution Date if
occurring during the eleventh, twelfth, thirteenth, fourteenth or fifteenth year
(or any year thereafter) after November 1995 are less than 30%, 35%, 40%, 45%
and 50%, respectively, of the sum of the Initial Certificate Principal Balances
of the Class B Certificates and 3.25% of the initial Certificate Principal
Balances of all of the Certificates or (b)(1) the aggregate outstanding
principal balance of the Mortgage Loans delinquent 60 days or more (including
foreclosure and REO Property) averaged over the last six months, as a percentage
of the aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 4% and (2) Realized Losses on the
Mortgage Loans to date are less than 10% of the sum of the Initial Certificate
Principal Balances of the Class B Certificates and 3.25% of the initial
Certificate Principal Balances of all of the Certificates and (ii) that for any
Distribution Date on which the Senior Percentage is greater than the Original
Senior Percentage, the Prepayment Percentage for such Distribution Date shall be
100%. Notwithstanding the foregoing, upon the reduction of the aggregate
Certificate Principal Balance of the Senior Certificates (other than the Class P
Certificates) to zero, the Senior Prepayment Percentage will equal 0%.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer in the performance of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under the second paragraph of Section 3.01 and Section 3.09.
"Servicing Fee": As to each Mortgage Loan, an amount, payable out of
any payment of interest on the Mortgage Loan, equal to interest at the
applicable Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan for the calendar month preceding the month in which the payment is due
(alternatively, in the event such payment of interest accompanies a Principal
Prepayment in full made by the Mortgagor, interest for the number of days
covered by such payment of interest).
"Servicing Fee Rate": With respect to each Mortgage Loan, the per
annum rate of 0.500%.
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"Servicing Officer": Any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans,
whose name appears on a list of servicing officers furnished to the Trustee by
the Master Servicer, as such list may from time to time be amended.
"Single Certificate": A Certificate of any Class evidencing an
Initial Certificate Principal Balance of $1,000.
"Special Hazard Amount": As of any Distribution Date, an amount equal
to $957,169 (the initial "Special Hazard Amount") minus the sum of (i) the
aggregate amount of Special Hazard Losses allocated solely to the Class A-2
Certificates, the Class B Certificates, the Class SB Certificates and the Class
R-II Certificates in accordance with Section 4.04 and (ii) the Adjustment Amount
(as defined below) as most recently calculated. For each Anniversary, the
Adjustment Amount shall be calculated and shall be equal to the amount, if any,
by which the amount calculated in accordance with the preceding sentence
(without giving effect to the deduction of the Adjustment Amount for such
Anniversary) exceeds the greater of (A) the product of the Special Hazard
Percentage for such Anniversary multiplied by the outstanding principal balance
of all the Mortgage Loans on such Anniversary and (B) twice the outstanding
principal balance of the Mortgage Loan in the Trust Fund which has the largest
outstanding principal balance on such Anniversary.
"Special Hazard Loss": Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, but not including (i) any loss of a
type covered by a hazard insurance policy or a flood insurance policy required
to be maintained in respect to such Mortgaged Property pursuant to Section 3.13
to the extent of the amount of such loss covered thereby, or (ii) any
Extraordinary Loss.
"Special Hazard Percentage": As of each Anniversary, the greater of
(i) 1% (or, if greater than 1%, the highest percentage of Mortgage Loans, by
principal balance, in any California zip code area) times the aggregate
principal balance of all of the Mortgage Loans on such Anniversary and (ii)
twice the principal balance of the single Mortgage Loan having the largest
principal balance.
"Standard & Poor's" or "S&P": Standard & Poor's Ratings Services, a
division of XxXxxx-Xxxx, Inc., or its successor in interest.
"Startup Day": The day designated as such pursuant to Article X
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
related REO Property at any given time, (i) the principal balance of the
Mortgage Loan outstanding as of the Cut-off Date, after application of principal
payments due on or before such date, whether or not received, minus (ii) the sum
of (a) the principal portion of the Monthly Payments due with respect to such
Mortgage Loan or REO Property during each Due Period ending prior to the most
recent Distribution Date which were distributed or with respect to which an
Advance was
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distributed, and (b) all Principal Prepayments with respect to such Mortgage
Loan or REO Property, and all Insurance Proceeds, Liquidation Proceeds and net
income from a REO Property to the extent applied by the Master Servicer as
recoveries of principal in accordance with Section 3.15 with respect to such
Mortgage Loan or REO Property, which were distributed pursuant to Section 4.01
on any previous Distribution Date, and (c) any Realized Loss with respect
thereto allocated pursuant to Section 4.04 for any previous Distribution Date.
"Structured Fraction": With respect to each Discount Mortgage Loan,
100% minus the related Discount Fraction and with respect to each Non-Discount
Loan 100%.
"Structured Rate": With respect to each Mortgage Loan (a) prior to
its initial Adjustment Date, 6.50% per annum and (b) on and after its initial
Adjustment Date, a rate equal to the excess of the related Net Mortgage Rate
over the sum of the related Pool Strip Rate and the Fixed Strip Rate.
"Sub-Servicer": Any Person with which the Master Servicer has entered
into a Sub-Servicing Agreement and which meets the qualifications of a Sub-
Servicer pursuant to Section 3.02.
"Sub-Servicer Remittance Date": The 18th day of each month, or if
such day is not a Business Day, the immediately preceding Business Day.
"Sub-Servicing Account": An account established by a Sub-Servicer
which meets the requirements set forth in Section 3.08 and is otherwise
acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the Master
Servicer and a Sub-Servicer and any successor Sub-Servicer relating to servicing
and administration of certain Mortgage Loans as provided in Section 3.02.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of REMIC I and REMIC II due to its classification as a
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Total Expected Losses": On any Distribution Date, the sum of (a) the
aggregate amount of Realized Losses on the Mortgage Loans previously allocated
solely to any of the Class A-2 Certificates, the Class B Certificates, the Class
R-II Certificates or the Class SB Certificates and (b) the Prospective Losses as
of such Determination Date.
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"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest in a
Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trust Fund": REMIC I and REMIC II.
"Trustee": Bankers Trust Company, or its successor in interest, or
any successor trustee appointed as herein provided.
"Uncertificated Accrued Interest": With respect to each
Uncertificated REMIC I Regular Interest on each Distribution Date, an amount
equal to one month's interest at the related Uncertificated Pass-Through Rate on
the Stated Principal Balance of the related Mortgage Loan in the case of the
Uncertificated REMIC I Regular Interests X, Uncertificated REMIC I Regular
Interests Y or Uncertificated REMIC I Regular Interests Z, of such
Uncertificated REMIC I Regular Interest. Uncertificated Accrued Interest will
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
In each case, Uncertificated Accrued Interest will be reduced by the amount of
all shortfalls as provided in the definition of "Accrued Certificate Interest,"
on a pro rata basis.
"Uncertificated Pass-Through Rate": With respect to each
Uncertificated REMIC I Regular Interest X, a rate equal to the applicable Net
Mortgage Rate on the corresponding Non-Discount Mortgage Loan as of the Due Date
in the month immediately preceding the month in which such Distribution Date
occurs. With respect to each Uncertificated REMIC I Regular Interest Y, a rate
equal to (a) prior to its initial Adjustment Date, 7.75% per annum and (b) on
and after its initial Adjustment Date, a rate equal to the applicable Net
Mortgage Rate on the Uncertificated REMIC I Regular Interest Y Principal Balance
as of the Due Date in the month immediately preceding the month in which such
Distribution Date occurs. With respect to each Uncertificated REMIC I Regular
Interest Z, a rate equal to (a) prior to its initial Adjustment Date, 1.25% per
annum and (b) on or after its initial Adjustment Date, a rate equal to the
applicable Net Mortgage Rate on the Uncertificated REMIC I Regular Interest Z
Principal Balance as of the Due Date in the month immediately preceding the
month in which such Distribution Date occurs.
"Uncertificated REMIC I Regular Interests X": The 733
Uncertificated partial undivided beneficial ownership interests in REMIC I, each
relating to a particular Non-Discount Mortgage Loan, each having a principal
balance equal to the Stated Principal Balance of the related Non-Discount
Mortgage Loan, and each bearing interest at the related Uncertificated Pass-
Through Rate for the related Non-Discount Mortgage Loan and designated as a
"regular interest" in REMIC I pursuant to Section 10.01.
"Uncertificated REMIC I Regular Interests Y": The 7 uncertificated
partial undivided beneficial ownership interests in REMIC I, each relating to a
particular Discount
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Mortgage Loan, each having a principal balance equal to the product of the
Structured Fraction applied to the Stated Principal Balance of the related
Discount Mortgage Loan, and each bearing interest at the related Uncertificated
Pass-Through Rate and designated as a "regular interest" in REMIC I pursuant to
Section 10.01.
"Uncertificated REMIC I Regular Interests Z": The 7 uncertificated
partial undivided beneficial ownership interests in REMIC I, each relating to a
particular Discount Mortgage Loan, each having a principal balance equal to the
product of the Discount Fraction applied to the Stated Principal Balance of the
related Discount Mortgage Loan, and each bearing interest at the related
Uncertificated Pass-Through Rate and designated as a "regular interest" in REMIC
I pursuant to Section 10.01.
"Uncertificated REMIC I Regular Interests Y Principal Balance": With
respect to each Uncertificated REMIC I Regular Interests X, the product of the
Structured Fraction and to the Stated Principal Balance of the related Discount
Mortgage Loan.
"Uncertificated REMIC I Regular Interests Z Principal Balance": With
respect to each Uncertificated REMIC I Regular Interests Z, the product of the
Discount Fraction and to the Stated Principal Balance of the related Discount
Mortgage Loan.
"Uncertificated REMIC I Regular Interests": The Uncertificated REMIC
I Regular Interests X, Uncertificated REMIC I Regular Interests Y and
Uncertificated REMIC I Regular Interests Z.
"Uncertificated REMIC I Regular Interests X Distribution Amount":
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests X for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interests Y Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests Y equal to (a) prior
to its initial Adjustment Date, 1.25% per annum and (b) on or after its initial
Adjustment Date, a rate equal to the applicable Net Mortgage Rate on the
Uncertificated REMIC I Regular Interests Z Principal Balance as of the Due Date
in the month immediately preceding the month in which such Distribution Date
occurs.
"Uncertificated REMIC I Regular Interests Z Distribution Amount":
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests Z for such
Distribution Date pursuant to Section 4.07(a).
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.13.
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"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code or successor provisions.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 94% of all of the Voting Rights shall be allocated among
Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class P
Certificates and the Class B Certificates in proportion to the initial
Certificate Principal Balances of their respective Certificates; and the Holders
of the Class SA Certificates, the Class SB Certificates, Class SP Certificates,
Class R-I Certificates and the Class R-II Certificates shall collectively be
entitled to 2%, 2%, 1%, 1% and 1% respectively, of all of the Voting Rights,
allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign, transfer, sell, set over and
otherwise convey to the Trustee without recourse all the right, title and
interest of the Depositor in and to the Mortgage Loans identified on the
Mortgage Loan Schedule (exclusive of any prepayment fees and late payment
charges received thereon) and all other assets included or to be included in the
Trust Fund for the benefit of the Certificateholders. Such assignment includes
all principal and interest received by the Master Servicer on or with respect to
the Mortgage Loans (other than payment of principal and interest due on or
before the Cut-off Date).
In connection with such transfer and assignment, the Depositor has
requested the Seller pursuant to each Mortgage Loan Purchase Agreement to
deliver to, and deposit with the Trustee, as described in the related Mortgage
Loan Purchase Agreement, the following documents or instruments:
(i) the original Mortgage Note, endorsed without recourse to the
order of "Bankers Trust Company, as trustee" with all intervening
endorsements showing a complete chain of endorsements from the originator
to the Person endorsing it to the Trustee;
(ii) the original recorded Mortgage or, if the original Mortgage has
not been returned from the applicable public recording office, a copy of
the Mortgage certified by the Seller to be a true and complete copy of the
original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of the Mortgage in recordable
form to "Bankers Trust Company, as trustee" or to "Bankers Trust Company,
as trustee for the holders of DLJ Mortgage Acceptance Corp. Mortgage Pass-
Through Certificates";
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator thereof to the
Person assigning it to the Trustee or, if any such Assignment has not been
returned from the applicable public recording office, a copy of such
Assignment certified by the Seller to be a true and complete copy of the
original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy
has not been issued and if the Mortgage Loan was funded through a title
insurance company pursuant
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to escrow or closing instructions precluding the title insurance company or
other comparable escrow or closing agent from funding until it is prepared
to issue the required title insurance coverage, a copy of such escrow or
closing instructions;
(vi) the original of any assumption, modification, extension or
guaranty agreement;
(vii) the original or a copy of the preliminary title report (or
equivalent thereof) on the Mortgage Property; and
(viii) if any of the documents or instruments referred to above was
executed on behalf of the Mortgagor by another Person, the original power
of attorney or other instrument that authorized and empowered such Person
to sign, or a copy thereof certified by the Seller (or by an officer of the
applicable title insurance or escrow company) to be a true and correct copy
of the original.
The Seller is obligated pursuant to each Mortgage Loan Purchase
Agreement to deliver to the Trustee: (a) either the original recorded Mortgage,
or in the event such original cannot be delivered by the Seller, a copy of such
Mortgage certified as true and complete by the appropriate recording office, in
those instances where a copy thereof certified by the Seller was delivered to
the Trustee pursuant to clause (ii) above; and (b) either the original
Assignment or Assignments of the Mortgage, with evidence of recording thereon,
showing a complete chain of assignment from the originator to the Seller, or in
the event such original cannot be delivered by the Seller, a copy of such
Assignment or Assignments certified as true and complete by the appropriate
recording office, in those instances where copies thereof certified by the
Seller were delivered to the Trustee pursuant to clause (iv) above.
Notwithstanding anything to the contrary contained in this Section 2.01, in
those instances where the public recording office retains the original Mortgage
after it has been recorded, the Seller shall be deemed to have satisfied its
obligations hereunder upon delivery to the Trustee of a copy of such Mortgage
certified by the public recording office to be a true and complete copy of the
recorded original thereof.
As promptly as practicable after the Closing Date, the Seller shall
cause to be delivered to the appropriate public office for recordation in the
real property records the Assignment referred to in clause (iii) and to the
extent necessary in clause (iv) of this Section 2.01. While such Assignment to
be recorded is being recorded, the Trustee shall retain a photocopy of such
Assignment. If any Assignment is lost or returned unrecorded to the Trustee
because of any defect therein, the Seller is required to prepare a substitute
Assignment or cure such defect, as the case may be, and the Trustee shall cause
such Assignment to be recorded in accordance with this paragraph.
The Seller is required under each Mortgage Loan Purchase Agreement to
exercise its best reasonable efforts to deliver or cause to be delivered to the
Trustee within 120 days of the Closing Date, or such other date as is set forth
in such Mortgage Loan Purchase Agreement,
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the original or a photocopy of the title insurance policy with respect to each
of the related Mortgage Loan, assigned to the Trustee pursuant to this Section
2.01.
All original documents relating to the Mortgage Loans which are not
delivered to the Trustee, to the extent delivered by the Seller to the Master
Servicer, are and shall be held by the Master Servicer in trust for the benefit
of the Trustee on behalf of the Certificateholders.
Except as may otherwise expressly be provided herein, neither the
Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer
shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer
any interest in the Trust Fund or any portion thereof, or permit the Trust Fund
or any portion thereof to be subject to any lien, claim, mortgage, security
interest, pledge or other encumbrance of, any other Person.
It is intended that the conveyance of the Mortgage Loans by the
Depositor to the Trustee as provided in this Section and the Uncertificated
REMIC I Regular Interests as provided in Section 2.06 be, and be construed as, a
sale of the Mortgage Loans and the Uncertificated REMIC I Regular Interests by
the Depositor to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans and the Uncertificated REMIC I Regular Interests by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor. However, in the
event that the Mortgage Loans and the Uncertificated REMIC I Regular Interests
are held to be property of the Depositor, or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans and the
Uncertificated REMIC I Regular Interests, then it is intended that, (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in this Section shall be deemed to be (1) a grant by the Depositor
to the Trustee of a security interest in all of the Depositor's right (including
the power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents in
the related Mortgage Files, (B) all amounts payable to the holders of the
Mortgage Loans and the Uncertificated REMIC I Regular Interests in accordance
with the terms thereof and (C) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account or the Custodial Account, whether in the
form of cash, instruments, securities or other property and (2) an assignment by
the Depositor to the Trustee of any security interest in any and all of the
Seller's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to the property
described in the foregoing clauses (1)(A) through (C) granted by the Seller to
the Depositor pursuant to the related Mortgage Loan Purchase Agreements or
granted by DLJMCI to the Depositor pursuant to the Assignment Agreement; (c) the
possession by the Trustee or its agent of Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or a person designated by such secured party, for purposes of
perfecting the security
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interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor and the Trustee
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the Uncertificated REMIC I Regular Interests,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of the Agreement.
SECTION 2.02. Acceptance of the Trust Fund by the Trustee.
The Trustee acknowledges receipt (subject to any exceptions noted in
the Initial Certification described below) of the documents referred to in
Section 2.01 above and all other assets included in REMIC I and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets included in REMIC I (to the extent delivered or assigned to the Trustee),
in trust for the exclusive use and benefit of all present and future
Certificateholders.
The Trustee agrees, for the benefit of the Certificateholders, to
review each Mortgage File on or before the Closing Date to ascertain that all
documents required to be delivered to it are in its possession, and the Trustee
agrees to execute and deliver to the Depositor and the Master Servicer on the
Closing Date an Initial Certification in the form annexed hereto as Exhibit C to
the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
documents required to be delivered to it pursuant to this Agreement with respect
to such Mortgage Loan are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage Loan
and (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (i) - (vi) and (x) - (xiii) of the definition of
the "Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. Neither the Trustee nor the Master Servicer shall be under any
duty to determine whether any Mortgage File should include any of the documents
specified in clause (vi) of Section 2.01. Neither the Trustee nor the Master
Servicer shall be under any duty or obligation to inspect, review or examine
said documents, instruments, certificates or other papers to determine that the
same are genuine, enforceable or appropriate for the represented purpose or that
they have actually been recorded or that they are other than what they purport
to be on their face.
Within 90 days of the Closing Date the Trustee shall deliver to the
Depositor and the Master Servicer a Final Certification in the form annexed
hereto as Exhibit D evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
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If in the process of reviewing the Mortgage Files and preparing the
certifications referred to above the Trustee finds any document or documents
constituting a part of a Mortgage File to be missing or defective in any
material respect, the Trustee shall promptly notify the Seller, the Master
Servicer and the Depositor. The Trustee shall promptly notify the Seller of
such defect and request that the Seller cure any such defect within 60 days from
the date on which the Seller was notified of such defect, and if the Seller does
not cure such defect in all material respects during such period, request that
the Seller purchase such Mortgage Loan from REMIC I on behalf of the
Certificateholders at the Purchase Price within 90 days after the date on which
the Seller was notified of such defect. It is understood and agreed that the
obligation of the Seller to cure a material defect in, or purchase any Mortgage
Loan as to which a material defect in a constituent document exists shall
constitute the sole remedy respecting such defect available to
Certificateholders or the Trustee on behalf of Certificateholders. The Purchase
Price for the purchased Mortgage Loan shall be deposited or caused to be
deposited upon receipt by the Master Servicer in the Custodial Account and, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee shall release or cause to be released to the
Seller the related Mortgage File and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Seller shall
require as necessary to vest in the Seller ownership of any Mortgage Loan
released pursuant hereto and at such time the Trustee shall have no further
responsibility with respect to the related Mortgage File.
SECTION 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Depositor.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Depositor and the Trustee for the benefit of
Certificateholders that:
(i) The Master Servicer is, and throughout the term hereof
shall remain, a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada (except as otherwise
permitted pursuant to Section 6.02), the Master Servicer is, and shall
remain, in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to perform its obligations
under this Agreement, and the Master Servicer is, and shall remain,
approved to sell mortgage loans to and service mortgage loans for FNMA and
FHLMC;
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
charter or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and
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delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution
and delivery by the Depositor and the Trustee, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation is likely to affect materially and adversely
either the ability of the Master Servicer to perform its obligations under
this Agreement or the financial condition of the Master Servicer;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement or is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer;
(vii) The Master Servicer will comply in all material
respects in the performance of this Agreement with all reasonable rules and
requirements of each insurer under each Insurance Policy;
(viii) The execution of this Agreement and the performance of
the Master Servicer's obligations hereunder do not require any license,
consent or approval of any state or federal court, agency, regulatory
authority or other governmental body having jurisdiction over the Master
Servicer, other than such as have been obtained; and
(ix) No information, certificate of an officer, statement
furnished in writing or report delivered to the Depositor, any affiliate of
the Depositor or the Trustee by the Master Servicer will, to the knowledge
of the Master Servicer, contain any untrue statement of a material fact or
omit a material fact necessary to make the information, certificate,
statement or report not misleading.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.03(a) shall survive the execution and
delivery of this Agreement, and shall inure to the benefit of the Depositor, the
Trustee and the Certificateholders. Upon discovery by the Depositor, the
Trustee or the Master Servicer of a breach of any of the foregoing
representations, warranties and covenants that materially and adversely affects
the interests of
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the Depositor or the Trustee, the party discovering such breach shall give
prompt written notice to the other parties.
(b) The Depositor hereby represents and warrants to the Master
Servicer and the Trustee for the benefit of Certificateholders that as of the
Closing Date (or, if otherwise specified below, as of the date so specified):
(i) Assuming that representation (v) of the Seller set forth in
Exhibit J hereto is true and correct, then immediately prior to the
assignment of the Mortgage Loans to the Trustee, the Depositor had good
title to, and was the sole owner of, each Mortgage Loan free and clear of
any pledge, lien, encumbrance or security interest (other than rights to
servicing and related compensation) and such assignment validly transfers
ownership of the Mortgage Loans to the Trustee free and clear of any
pledge, lien, encumbrance or security interest; and
(ii) The representations and warranties of the Seller with respect to
the Mortgage Loans and the remedies therefor that are contained in the
related Mortgage Loan Purchase Agreements are as set forth in Exhibit J
hereto.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee.
Upon discovery by either the Depositor, the Master Servicer or the
Trustee of a breach of any representation or warranty set forth in this Section
2.03 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties.
SECTION 2.04. Representations and Warranties of the Seller.
The Depositor hereby assigns to the Trustee for the benefit of the
Certificateholders its interest in respect of the representations and warranties
made by the Seller in each Mortgage Loan Purchase Agreement or the exhibits
thereto and in the Seller's Warranty Certificate. Insofar as any Mortgage Loan
Purchase Agreement or the Seller's Warranty Certificate relates to any such
representations and warranties and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Trustee on behalf of the Certificateholders. Upon the
discovery by the Depositor, the Master Servicer or the Trustee of a breach of
any of the representations and warranties made in any Mortgage Loan Purchase
Agreement or the Seller's Warranty Certificate in respect of any Mortgage Loan
which are set forth in Exhibit J attached hereto which materially and adversely
affects the interests of the Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties.
The Trustee shall promptly notify the Seller of such breach and request that
such Seller shall, within 90 days from the date that the Depositor, the Master
Servicer or the Trustee was notified of such breach, either (i) cure such breach
in all material respects or (ii) purchase such Mortgage Loan
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from REMIC I at the Purchase Price and in the manner set forth in Section 2.02.
Except as expressly set forth herein neither the Trustee nor the Master Servicer
is under any obligation to discover any breach of the above mentioned
representations and warranties. It is understood and agreed that the obligation
of the Seller to cure such breach or purchase such Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders.
SECTION 2.05. Issuance of Certificates Evidencing Interests in REMIC
I.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery of the Mortgage Files to it together with the assignment to it
of all other assets included in the definition of "REMIC I", receipt of which is
xxxxxx acknowledged. Concurrently with such delivery and in exchange therefor,
the Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor has executed and caused to be authenticated and
delivered to, or upon the order of, the Depositor the Class R-I Certificates in
authorized denominations which, together with the Uncertificated REMIC I Regular
Interests, evidence ownership of all of REMIC I. The rights of the Class R-I
Certificateholders and REMIC II to receive distributions from the proceeds of
REMIC I in respect of the Class R-I Certificates and the Uncertificated REMIC I
Regular Interests, and all ownership interests of the Class R-I
Certificateholders and REMIC II in such distributions, shall be as set forth in
this Agreement.
SECTION 2.06. Conveyance of Uncertificated REMIC I Regular Interests;
Acceptance by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Uncertificated REMIC I
Regular Interests to the Trustee for the benefit of the Class SA, Class SP,
Class A-1, Class A-2, Class P, Class B, Class SB and Class R-II
Certificateholders. The Trustee acknowledges receipt of the Uncertificated
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Class SA,
Class SP, Class A-1, Class A-2, Class P, Class B, Class SB and Class R-II
Certificateholders. The rights of the Class SA, Class SP, Class A-1, Class A-2,
Class P, Class B, Class SB and Class R-II Certificateholders to receive
distributions from the proceeds of REMIC II in respect of the Class SA, Class
SP, Class A-1, Class A-2, Class P, Class B, Class SB and Class R-II
Certificates, and all ownership interests of the Class SA, Class SP, Class A-1,
Class A-2, Class P, Class B, Class SB and Class R-II Certificateholders in such
distributions, shall be as set forth in this Agreement.
SECTION 2.07. Issuance of Certificates Evidencing Interest in REMIC
II.
The Trustee acknowledges the assignment to it of the Uncertificated
REMIC I Regular Interests and, concurrently therewith and in exchange therefor,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, the Trustee has executed and caused to be authenticated and delivered
to or upon the order of the Depositor, the Class SA,
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Class SP, Class A-1, Class A-2, Class P, Class B, Class SB and Class R-II
Certificates in authorized denominations evidencing ownership of all of REMIC
II.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans in
accordance with this Agreement, the related Mortgage Notes and Mortgages and the
customary and usual standards of practice of prudent mortgage lenders in the
respective states in which the Mortgaged Properties are located, and shall have
full power and authority, acting alone and/or through Sub-Servicers as provided
in Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Master Servicer in its own
name or in the name of a Sub-Servicer is hereby authorized and empowered by the
Trustee when the Master Servicer believes it appropriate in its best judgment,
to (i) execute and deliver, on behalf of the Certificateholders and the Trustee
or any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties, (ii) institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and (iii) hold or cause to be held title to
such properties, on behalf of the Trustee and Certificateholders. The Master
Servicer shall service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the Mortgagors any reports
required to be provided to them thereby. Subject to Section 3.16, the Trustee
shall execute based on the written request of the Master Servicer and furnish to
the Master Servicer and any Sub-Servicer any special or limited powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer and any Sub-Servicer to carry out their servicing and administrative
duties hereunder. The Trustee shall not be liable for any action taken by the
Master Servicer or any Sub-Servicer pursuant to the application of such special
or limited powers of attorney.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.09, and further as
provided in Section 3.11. No costs incurred by the Master Servicer or by Sub-
Servicers in effecting the payment of taxes and assessments on the Mortgaged
Properties shall, for the purpose of calculating distributions to
Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit.
It is expressly understood and agreed that in light of the
underwriting criteria applicable to the Mortgage Loans, special servicing
procedures are desirable in order to minimize the delinquency and loss
experience of the Mortgage Loans. The Master Servicer
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hereby covenants that it will use reasonable efforts to prevent and to resolve
delinquencies promptly and appropriately in light of the underwriting criteria
applicable to the Mortgage Loans and that it will modify its procedures from
time to time in accordance with the reasonable written request of the Depositor.
Notwithstanding anything in this Agreement to the contrary, the Master Servicer
shall not (unless the Mortgagor is in default with respect to the Mortgage Loan
or such default is, in the judgment of the Master Servicer, reasonably
foreseeable) make or permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (i) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and cause REMIC I or REMIC II to
fail to qualify as a REMIC under the Code or (ii) cause the imposition of any
tax on "prohibited transactions" or "contributions" after the Startup Day under
the REMIC Provisions.
The relationship of the Master Servicer (and of any successor to the
Master Servicer under this Agreement) to the Trustee under this Agreement is
intended by the parties to be that of an independent contractor and not that of
a joint venturer, partner or agent.
SECTION 3.02. Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the Mortgage Loans and for
the performance of any and all other activities of the Master Servicer
hereunder. Each Sub-Servicer shall be either (i) an institution the accounts of
which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Sub-Servicer to perform its obligations
hereunder and under the Sub-Servicing Agreement, and in either case shall be a
FHLMC or FNMA approved mortgage servicer. Each Sub-Servicing Agreement must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Mortgage Loans consistent with
the terms of this Agreement. With the consent of the Trustee, which consent
shall not be unreasonably withheld, the Master Servicer and the Sub-Servicers
may enter into Sub-Servicing Agreements and make amendments to the Sub-Servicing
Agreements or enter into different forms of Sub-Servicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Certificateholders, without the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Notwithstanding any inconsistent or contrary provision of this
Agreement, neither any Interim Subservicer nor any Interim Servicing Agreement
shall be subject to the foregoing provisions during the Interim Servicing
Period.
(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the Certificateholders, shall
enforce the obligations of each Sub-
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Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments as
required by a Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys' fees against the
party against whom such enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
The Master Servicer shall be entitled to terminate any Sub-Servicing
Agreement and the rights and obligations of any Sub-Servicer pursuant to any
Sub-Servicing Agreement in accordance with the terms and conditions of such Sub-
Servicing Agreement. In the event of termination of any Sub-Servicer, all
servicing obligations of such Sub-Servicer shall be assumed simultaneously by
the Master Servicer without any act or deed on the part of such Sub-Servicer or
the Master Servicer, and the Master Servicer either shall service directly the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02. Each Sub-Servicing
Agreement, if any, shall include the provision that such agreement may be
immediately terminated by any successor Master Servicer without cause and
without payment of any fee or penalty in the event that the Master Servicer
shall, for any reason, no longer be the Master Servicer (including by reason of
an Event of Default).
Any Sub-Servicing Agreement entered into by the Master Servicer shall
include the provision that such agreement may be immediately terminated without
cause and without any termination fee by any successor Master Servicer
hereunder.
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer and a Sub-Servicer or reference to actions taken through a Sub-Servicer
or otherwise, the Master Servicer shall remain obligated and primarily liable to
the Trustee and Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the Sub-Servicer
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. For
purposes of this Agreement, the Master Servicer shall be deemed to have received
payments on Mortgage Loans when the Sub-Servicer has received such payments.
The Master Servicer shall be entitled to enter into any agreement with a Sub-
Servicer for indemnification of the Master Servicer by such Sub-Servicer and
nothing contained
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in this Agreement shall be deemed to limit or modify such indemnification.
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.06.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee.
In the event the Master Servicer shall for any reason no longer be the
master servicer (including by reason of an Event of Default), the Trustee or its
designee shall thereupon assume all of the rights and obligations of the Master
Servicer under each Sub-Servicing Agreement that the Master Servicer may have
entered into, unless the Trustee is then permitted and elects to terminate any
Sub-Servicing Agreement in accordance with its terms. Subject to Section 3.03,
the Trustee, its designee or the successor servicer for the Trustee shall be
deemed to have assumed all of the Master Servicer's interest therein and to have
replaced the Master Servicer as a party to each Sub-Servicing Agreement to the
same extent as if the Sub-Servicing Agreements had been assigned to the assuming
party, except that the Master Servicer shall not thereby be relieved of any
liability or obligations under the Sub-Servicing Agreements, and the Master
Servicer shall continue to be entitled to any rights or benefits which arose
prior to its termination as master servicer.
The Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each Sub-
Servicing Agreement and the Mortgage Loans then being serviced and an accounting
of amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any related Insurance Policy, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. The Master Servicer shall not be
required to institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note, Primary Hazard Insurance
Policy or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it
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reasonably believes that it is prohibited by applicable law from enforcing the
provision of the Mortgage or other instrument pursuant to which such payment is
required. Notwithstanding the foregoing, the Master Servicer may not waive any
late payment charge or any prepayment charge or penalty interest in connection
with the prepayment of a Mortgage Loan without the express written consent of
the Seller, except as otherwise required under applicable law. The Master
Servicer shall be responsible for preparing and distributing all information
statements relating to payments on the Mortgage Loans, in accordance with all
applicable federal and state tax laws and regulations.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
otherwise be acceptable to the Master Servicer. All amounts held in a Sub-
Servicing Account shall be held in trust for the Trustee for the benefit of the
Certificateholders. The Sub-Servicer will be required to deposit into the Sub-
Servicing Account no later than the first Business Day after receipt all
proceeds of Mortgage Loans received by the Sub-Servicer, less its servicing
compensation and any unreimbursed expenses and advances, to the extent permitted
by the Sub-Servicing Agreement. On each Sub-Servicer Remittance Date the Sub-
Servicer will be required to remit to the Master Servicer all funds held in the
Sub-Servicing Account with respect to any Mortgage Loan as of the Sub-Servicer
Remittance Date, after deducting from such remittance an amount equal to the
servicing compensation and unreimbursed expenses and advances to which it is
then entitled pursuant to the related Sub-Servicing Agreement, to the extent not
previously paid to or retained by it. In addition, on each Sub-Servicer
Remittance Date the Sub-Servicer will be required to remit to the Master
Servicer any amounts required to be advanced pursuant to the related Sub-
Servicing Agreement. The Sub-Servicer will also be required to remit to the
Master Servicer, within one Business Day of receipt, the proceeds of any
Principal Prepayment made by the Mortgagor and any Insurance Proceeds or
Liquidation Proceeds.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
The Master Servicer and the Sub-Servicers shall establish and maintain
one or more accounts (the "Servicing Accounts"), and shall deposit and retain
therein all collections from the Mortgagors (or related advances from Sub-
Servicers) for the payment of taxes, assessments, Primary Hazard Insurance
Policy premiums, and comparable items for the account of the Mortgagors, to the
extent that the Master Servicer customarily escrows for such amounts.
Withdrawals of amounts so collected from a Servicing Account may be made only to
(i) effect payment of taxes, assessments, Primary Hazard Insurance Policy
premiums and comparable items; (ii) reimburse the Master Servicer (or a Sub-
Servicer to the extent provided in the related Sub-Servicing Agreement) out of
related collections for any payments made pursuant to Sections 3.01 (with
respect to taxes and assessments), and 3.13 (with respect to Primary Hazard
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Insurance Policies); (iii) refund to Mortgagors any sums as may be determined to
be overages; or (iv) clear and terminate the Servicing Account at the
termination of this Agreement pursuant to Section 9.01. As part of its
servicing duties, the Master Servicer or Sub-Servicers shall, if and to the
extent required by law, pay to the Mortgagors interest on funds in Servicing
Accounts from its or their own funds, without any reimbursement therefor.
SECTION 3.10. Custodial Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Custodial Account") in which the Master Servicer
shall deposit or cause to be deposited on a daily basis, or as and when received
from the Sub-Servicers, the following payments and collections received or made
by or on behalf of it subsequent to the Cut-off Date, or received by it prior to
the Cut-off Date but allocable to a period subsequent thereto (other than in
respect of principal and interest on the Mortgage Loans due on or before the
Cut-off Date):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans,
exclusive of any portion thereof representing interest in excess of the
related Net Mortgage Rate;
(iii) all Insurance Proceeds, other than proceeds that represent
reimbursement of costs and expenses incurred by the Master Servicer in
connection with presenting claims under the related Insurance Policies,
Liquidation Proceeds and REO Proceeds;
(iv) all proceeds of any Mortgage Loan or REO Property repurchased or
purchased in accordance with Sections 2.02, 2.04, 3.22 or 9.01;
(v) any amounts required to be deposited pursuant to Sections 3.12 or
3.13; and
(vi) all amounts transferred from the Certificate Account to the
Custodial Account in accordance with Section 4.01(b).
The foregoing requirements for deposit in the Custodial Account shall
be exclusive. In the event the Master Servicer shall deposit in the Custodial
Account any amount not required to be deposited therein, it may withdraw such
amount from the Custodial Account, any provision herein to the contrary
notwithstanding. The Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage pass-through
certificates of other series, and the other accounts of the Master Servicer.
(b) Funds in the Custodial Account may be invested in Permitted
Instruments in accordance with the provisions set forth in Section 3.12. The
Master Servicer shall give
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notice to the Trustee and the Depositor of the location of the Custodial Account
after any change thereof.
(c) Payments in the nature of prepayment fees and late payment
charges received on the Mortgage Loans shall not be deposited in the Custodial
Account, but rather shall be received and held by the Master Servicer solely for
the benefit of and at the direction of the Seller. Upon receipt, such amounts
shall be deposited by the Master Servicer into a separate account meeting the
requirements for an Eligible Account, and such amounts shall be distributed by
the Master Servicer to the Seller on a monthly basis. Such amounts shall not be
applied or made available by the Master Servicer for any other purpose.
SECTION 3.11. Permitted Withdrawals From the Custodial Account.
The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.10 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts
and in the manner provided for in Section 4.01;
(ii) to pay to itself, the Depositor, the Seller or any other
appropriate person, as the case may be, with respect to each Mortgage Loan
that has previously been purchased or repurchased pursuant to Sections
2.02, 2.04 or 9.01 all amounts received thereon and not yet distributed as
of the date of purchase or repurchase;
(iii) to reimburse itself or any Sub-Servicer for Advances not
previously reimbursed, the Master Servicer's or any Sub-Servicer's right to
reimbursement pursuant to this clause (iii) being limited to amounts
received which represent Late Collections (net of the Servicing Fees) of
Monthly Payments on Mortgage Loans or REO Property with respect to which
such Advances were made and as further provided in Section 3.15;
(iv) to reimburse itself, the Trustee or the Depositor for
expenses incurred by or reimbursable to the Master Servicer, the Trustee or
the Depositor pursuant to Sections 3.22, 6.03 or 10.01(c), except as
otherwise provided in such Sections;
(v) to reimburse itself or any Sub-Servicer for costs and
expenses incurred by or reimbursable to it relating to the prosecution of
any claims pursuant to Section 3.13 that are in excess of the amounts so
recovered;
(vi) to reimburse itself or any Sub-Servicer for unpaid Servicing
Fees and unreimbursed Servicing Advances, the Master Servicer's or any Sub-
Servicer's right to reimbursement pursuant to this clause (vi) with respect
to any Mortgage Loan being
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limited to late recoveries of the payments for which such advances were
made pursuant to Section 3.01 or Section 3.09 and any other related Late
Collections;
(vii) to pay itself as servicing compensation (in addition to the
Servicing Fee), on or after each Distribution Date, any interest or
investment income earned on funds deposited in the Custodial Account for
the period ending on such Distribution Date, subject to Section 8.05;
(viii) to reimburse itself or any Sub-Servicer for any Advance
previously made which the Master Servicer has determined to be a
Nonrecoverable Advance, provided that either (a) such Advance was made with
respect to a delinquency that ultimately constituted an Excess Special
Hazard Loss, Excess Fraud Loss, Excess Bankruptcy Loss or Extraordinary
Loss or (b) the Certificate Principal Balances of the Class A-2, Class B
and Class R-II Certificates have been reduced to zero; and
(ix) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying
any withdrawal from the Custodial Account pursuant to such clauses (ii), (iii),
(iv), (vi), (vii) and (viii).
In connection with clause (viii) above, the Trustee shall notify the
Master Servicer if and when the Certificate Principal Balances of the Class A-2
Certificates, the Class B Certificates or the Class R-II Certificates have been
reduced to zero.
SECTION 3.12. Permitted Instruments.
Any institution maintaining the Custodial Account shall at the
direction of the Master Servicer invest the funds in such account in Permitted
Instruments, each of which shall mature not later than the Business Day
immediately preceding the Certificate Account Deposit Date next following the
date of such investment (except that if such Permitted Instrument is an
obligation of the institution that maintains such account, then such Permitted
Instrument shall mature not later than such Certificate Account Deposit Date)
and shall not be sold or disposed of prior to its maturity. All income and gain
realized from any such investment as well as any interest earned on deposits in
the Custodial Account shall be for the benefit of the Master Servicer. The
Master Servicer shall deposit in the Custodial Account (with respect to
investments made hereunder of funds held therein) an amount equal to the amount
of any loss incurred in respect of any such investment immediately upon
realization of such loss without right of reimbursement.
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SECTION 3.13. Maintenance of Primary Hazard Insurance.
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan primary hazard insurance with extended coverage on the related
Mortgaged Property in an amount equal to the replacement value of the
improvements, as determined by the insurance company, on such Mortgaged
Property. The Master Servicer shall also cause to be maintained on property
acquired upon foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan,
fire insurance with extended coverage in an amount equal to the replacement
value of the improvements thereon. Pursuant to Section 3.10, any amounts
collected by the Master Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.11. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not, for
the purpose of calculating monthly distributions to Certificateholders, be added
to the amount owing under the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. When the improvements securing a Mortgage
Loan are located at any time during the life of such Mortgage Loan in a
federally designated special flood hazard area, the Master Servicer shall cause
flood insurance (to the extent available) to be maintained in respect thereof.
Such flood insurance shall be in an amount equal to the lesser of (i) the
replacement value of the improvements, which are part of such Mortgaged Property
on a replacement cost basis and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Master Servicer shall obtain and maintain a
blanket fire insurance policy with extended coverage insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with the first two sentences of this Section 3.13 and there shall have
been a loss which would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Any such deposit by the Master Servicer
shall be made on the Certificate Account Deposit Date next preceding the
Distribution Date which occurs in the month following the month in which
payments under any such policy would have been deposited in the Custodial
Account. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy.
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SECTION 3.14. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note or the
Mortgage), exercise or cause to be exercised its rights to accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause applicable
thereto; provided, however, that the Master Servicer shall not exercise any such
rights if it reasonably believes that it is prohibited by law from doing so. If
the Master Servicer is unable to enforce such "due-on-sale" clause (as provided
in the previous sentence) or if no "due-on-sale" clause is applicable, the
Master Servicer or the Sub-Servicer will enter into an assumption and
modification agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state law,
the Mortgagor remains liable thereon. The Master Servicer is also authorized to
enter into a substitution of liability agreement with such Person, pursuant to
which the original Mortgagor is released from liability and such Person is
substituted as the Mortgagor and becomes liable under the Mortgage Note. Any
fee collected by or on behalf of the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by or on
behalf of the Master Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the Mortgage Rate, the amount of the Monthly
Payment, the Maximum Rate, the Minimum Rate, the Gross Margin, the Periodic Rate
Cap and any other term affecting the amount or timing of payment on the Mortgage
Loan) may be changed. The Master Servicer shall not enter into any substitution
or assumption if such substitution or assumption shall (i) constitute a
"significant modification" effecting an exchange or reissuance of such Mortgage
Loan under the Code (or final, temporary or proposed Treasury Regulations
promulgated thereunder) and cause REMIC I or REMIC II to fail to qualify as a
REMIC under the REMIC Provisions or (ii) cause the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC provisions. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original copy of such substitution or assumption agreement, which
copy shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or any assumption that the Master Servicer
may be restricted by law from preventing, for any reason whatsoever. For
purposes of this Section 3.14, the term "assumption" is deemed to also include a
sale of a Mortgaged Property that is not accompanied by an assumption or
substitution of liability agreement.
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SECTION 3.15. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall exercise reasonable efforts, consistent with
the procedures that the Master Servicer would use in servicing loans for its own
account, to foreclose upon or otherwise comparably convert (which may include an
REO Acquisition) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from the Trust Fund pursuant to any
other provision hereof. The Master Servicer shall use reasonable efforts to
realize upon such defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest by Certificateholders, taking into account,
among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall not be
required to expend its own funds toward the restoration of such property unless
it shall determine in its sole discretion (i) that such restoration will
increase the net proceeds of liquidation of the related Mortgage Loan to
Certificateholders after reimbursement to itself for such expenses, and (ii)
that such expenses will be recoverable by the Master Servicer through Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged Property, as
contemplated in Section 3.11. The Master Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11.
The proceeds of any Cash Liquidation or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds or any income from an REO Property, will be applied in the
following order of priority: first, to reimburse the Master Servicer or any
Sub-Servicer for any related unreimbursed Servicing Advances, pursuant to
Section 3.11(vi) or 3.22; second, to accrued and unpaid interest on the Mortgage
Loan or REO Imputed Interest, at the Mortgage Rate, to the last day of the month
in which the Cash Liquidation or REO Disposition occurred, or to the Due Date
prior to the Distribution Date on which such amounts are to be distributed if
not in connection with a Cash Liquidation or REO Disposition; and third, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that amount will be
allocated as follows: first, to unpaid Servicing Fees; and second, to interest
at the Net Mortgage Rate. The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the Master Servicer or any Sub-Servicer
pursuant to Section 3.11(vi). The portions of the recovery so allocated to
interest at the Net Mortgage Rate and to principal of the Mortgage Loan shall be
applied as follows: first, to reimburse the Master Servicer or any Sub-Servicer
for any related unreimbursed Advances in accordance with Section 3.11(iii) or
3.22, and second, for distribution in accordance with the provisions of Section
4.01(b), subject to Section 3.22 with respect to certain recoveries from an REO
Disposition constituting Excess Proceeds.
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SECTION 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Custodial Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Mortgage File in the form of the Request for
Release attached hereto as Exhibit F-2. Upon receipt of such certification and
request, the Trustee shall promptly release the related Mortgage File to the
Master Servicer. Subject to the receipt by the Master Servicer of the proceeds
of such payment in full and the payment of all related fees and expenses, the
Master Servicer shall arrange for the release to the Mortgagor of the original
cancelled Mortgage Note. All other documents in the Mortgage File shall be
retained by the Master Servicer to the extent required by applicable law. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account, the Excess Proceeds
Account or the Certificate Account.
From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any
insurance policy relating to the Mortgage Loan, the Trustee shall, upon request
of the Master Servicer and delivery to the Trustee of a Request for Release in
the form attached hereto as Exhibit F-1, release the related Mortgage File to
the Master Servicer, and the Trustee shall execute such documents as the Master
Servicer shall prepare and request as being necessary to the prosecution of any
such proceedings. Such Request for Release shall obligate the Master Servicer
to return each document previously requested from the Mortgage File to the
Trustee when the need therefor by the Master Servicer no longer exists, unless
the Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the Mortgage Loan have been deposited in the Custodial Account or the Mortgage
File or such document has been delivered to an attorney, or to a public trustee
or other public official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Master Servicer has
delivered to the Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. Upon receipt of a
certification of a Servicing Officer in the form of the Request for Release
attached hereto as Exhibit F-1, stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation which are required to be deposited into the Custodial Account have
been or will be so deposited, or that such Mortgage Loan has become an REO
Property, a copy of such Request for Release shall be released by the Trustee to
the Master Servicer.
Upon written request of a Servicing Officer, the Trustee shall execute
and deliver to the Master Servicer any court pleadings, requests for trustee's
sale or other documents prepared by the Master Servicer that are necessary to
the foreclosure or trustee's sale in respect
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of a Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. Each such request
that such pleadings or documents be executed by the Trustee shall include a
certification as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.17. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain, from deposits to the Custodial Account of amounts
representing payments or recoveries of interest, the Servicing Fees with respect
to each Mortgage Loan (less any portion of such amounts retained by any Sub-
Servicer). In addition, the Master Servicer shall be entitled to recover unpaid
Servicing Fees out of related Late Collections to the extent permitted in
Section 3.11.
The Master Servicer also shall be entitled pursuant to Section 3.11 to
receive from the Custodial Account as additional servicing compensation interest
or other income earned on deposits therein, subject to Section 3.23, as well as
any assumption fees and reconveyance fees. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including payment of the premiums for any blanket policy
insuring against hazard losses pursuant to Section 3.13, servicing compensation
of the Sub-Servicers to the extent not retained by it and the fees and expenses
of the Trustee), and shall not be entitled to reimbursement therefor except as
specifically provided in Section 3.11. The Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
SECTION 3.18. Maintenance of Certain Servicing Policies.
During the term of its service as Master Servicer, the Master Servicer
shall maintain in force (i) a policy or policies of insurance covering errors
and omissions in the performance of its obligations as servicer hereunder and
(ii) a fidelity bond in respect of its officers, employees or agents. Each such
policy or policies and bond shall, together, comply with the requirements from
time to time of FNMA or FHLMC for persons performing servicing for mortgage
loans purchased by such corporation. The Master Servicer shall prepare and
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such errors and omissions policy or policies or fidelity bond in a timely
fashion in accordance with the terms of such policy or bond, and upon the filing
of any claim on any policy or bond described in this Section, the Master
Servicer shall promptly notify the Trustee of any such claims and the Trustee
shall notify the Rating Agency of such claim.
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SECTION 3.19. Annual Statement as to Compliance.
The Master Servicer will deliver to the Trustee and the Depositor on
or before April 30 of each year, beginning with April 30, 1996, an Officers'
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Master Servicer during the preceding fiscal year and of its
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Master Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof.
SECTION 3.20. Annual Independent Public Accountants' Servicing
Statement.
On or before April 30 of each year, beginning with April 30, 1996, the
Master Servicer at its expense shall furnish to the Depositor, the Trustee and
the Seller (i) an opinion by a firm of independent certified public accountants
on the financial position of the Master Servicer at the end of its fiscal year
and the results of operations and changes in financial position of the Master
Servicer for such year then ended on the basis of an examination conducted in
accordance with generally accepted auditing standards, and (ii) if the Master
Servicer is then servicing any Mortgage Loans, a statement from such independent
certified public accountants to the effect that based on an examination of
certain specified documents and records relating to the servicing of the Master
Servicer's mortgage loan portfolio conducted substantially in compliance with
the audit program for mortgages serviced for FNMA and FHLMC, the United States
Department of Housing and Urban Development Mortgage Audit Standards, or the
Uniform Single Audit Program for Mortgage Bankers (the "Applicable Accounting
Standards"), such firm is of the opinion that such servicing has been conducted
in compliance with the Applicable Accounting Standards except for (a) such
exceptions as such firm shall believe to be immaterial and (b) such other
exceptions as shall be set forth in such statement. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Sub-Servicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Audit Program for
Mortgage Bankers or the audit program for mortgages serviced for FHLMC (rendered
within one year of such statement) of independent public accountants with
respect to the related Sub-Servicer. Copies of such statement shall be provided
by the Trustee to any Certificateholder upon request at the Master Servicer's
expense, provided such statement is delivered by the Master Servicer to the
Trustee.
SECTION 3.21. Access to Certain Documentation.
(a) The Master Servicer shall provide to the OTS, the FDIC and other
federal banking regulatory agencies, and their respective examiners, access to
the documentation regarding the Mortgage Loans required by applicable
regulations of the OTS, the FDIC and such other agencies. Such access shall be
afforded without charge, but only upon reasonable and
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prior written request and during normal business hours at the offices of the
Master Servicer designated by it. Nothing in this Section shall derogate from
the obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the Master
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this section.
(b) The Master Servicer shall afford the Depositor and the Trustee,
upon reasonable notice, during normal business hours access to all records
maintained by the Master Servicer in respect of its rights and obligations
hereunder and access to officers of the Master Servicer responsible for such
obligations. Upon request, the Master Servicer shall furnish the Depositor and
the Trustee with its most recent financial statements and such other information
as the Master Servicer possesses regarding its business, affairs, property and
condition, financial or otherwise to the extent related to the servicing of the
Mortgage Loans. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer hereunder or exercise the rights of the Master Servicer hereunder;
provided that the Master Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
SECTION 3.22. Title, Conservation and Disposition of REO Property.
This Section shall apply only to REO Properties acquired for the
account of the Trust Fund, and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trust Fund pursuant to
any provision hereof. In the event that title to any such REO Property is
acquired, the deed or certificate of sale shall be issued to the Trustee, or to
its nominee, on behalf of the Certificateholders. The Master Servicer, on
behalf of the Trust Fund, shall either sell any REO Property within two years
after the Trust Fund acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code or, at the expense of the Trust Fund, request,
more than 60 days before the day on which the two-year grace period would
otherwise expire, an extension of the two-year grace period, unless the Master
Servicer has delivered to the Trustee an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Trustee or the Trust Fund), addressed to
the Trustee and the Master Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to two years after its acquisition will not
result in the imposition on the REMIC I or REMIC II of taxes on "prohibited
transactions" thereof, as defined in Section 860F of the Code, or cause the
REMIC I or REMIC II to fail to qualify as a REMIC under the REMIC Provisions or
comparable provisions of the laws of the State of California at any time that
any Certificates are outstanding. The Master Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) or result in the receipt by either REMIC I or REMIC II of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of
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the Code or any "net income from foreclosure property" which is subject to
taxation under the REMIC Provisions. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve such REO Property in the same manner
and to such extent as is customary in the locality where such REO Property is
located and may, incident to its conservation and protection of the interests of
the Certificateholders, rent the same, or any part thereof, as the Master
Servicer deems to be in the best interest of the Certificateholders for the
period prior to the sale of such REO Property.
Any REO Disposition shall be for cash only (unless changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
The Master Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets. The Master Servicer shall deposit, or
cause to be deposited, on a daily basis in the Custodial Account all revenues
received with respect to the REO Properties, net of any directly related
expenses incurred and funds withheld therefrom that are necessary for the proper
operation, management and maintenance of the REO Property.
If as of the date of acquisition of title to any REO Property there
remain outstanding unreimbursed Servicing Advances with respect to such REO
Property or any outstanding Advances allocated thereto the Master Servicer, upon
an REO Disposition, shall be entitled to reimbursement for any related
unreimbursed Servicing Advances and any unreimbursed related Advances as well as
any unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.15.
The REO Disposition shall be carried out by the Master Servicer at
such price and upon such terms and conditions as the Master Servicer shall
determine.
The Master Servicer shall deposit the proceeds from the REO
Disposition, net of any payment to the Master Servicer as provided above, in the
Custodial Account upon receipt thereof for distribution in accordance with
Section 4.01; provided that any such net proceeds which are in excess of the
applicable Stated Principal Balance plus all unpaid REO Imputed Interest thereon
through the last day of the month in which the REO Disposition occurred ("Excess
Proceeds") shall be deposited into the Excess Proceeds Account in accordance
with the provisions of Section 3.25(a).
Notwithstanding the foregoing provisions of this Section 3.22, with
respect to any Mortgage Loan as to which the Master Servicer has received notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the Mortgaged Property, the Master Servicer shall promptly request the
Depositor to provide directions and instructions with respect to such Mortgage
Loan and shall act in accordance with any such directions and instructions
provided by the Depositor. Notwithstanding the preceding sentence of this
Section 3.22, with respect to any Mortgage Loan described by such sentence, the
Master Servicer shall not, on behalf of the Trustee, either (i) obtain title to
the related Mortgaged Property as a result of or
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in lieu of foreclosure or otherwise, or (ii) otherwise acquire possession of,
the related Mortgaged Property, unless (i) the Depositor and the Trustee jointly
direct the Master Servicer to take such action and (ii) either (A) the Master
Servicer has, at least 30 days prior to taking such action, obtained and
delivered to the Depositor an environmental audit report prepared by a Person
who regularly conducts environmental audits using customary industry standards
or (B) the Depositor has directed the Master Servicer not to obtain an
environmental audit report. If the Depositor has not provided directions and
instructions to the Master Servicer in connection with any such Mortgage Loan
within 30 days of a request by the Master Servicer for such directions and
instructions, then the Master Servicer shall take such action as it deems to be
in the best economic interest of the Trust Fund (other than proceeding against
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage.
The cost of the environmental audit report contemplated by this
Section 3.22 shall be advanced by the Master Servicer as an expense of the Trust
Fund, and the Master Servicer shall be reimbursed therefor from the Custodial
Account as provided in Section 3.11, any such right of reimbursement being prior
to the rights of the Certificateholders to receive any amount in the Custodial
Account.
If the Master Servicer determines, as described above, that it is in
the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property in compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Master Servicer as
an expense of the Trust Fund, and the Master Servicer shall be entitled to be
reimbursed therefor from the Custodial Account as provided in Section 3.11, any
such right of reimbursement being prior to the rights of the Certificateholders
to receive any amount in the Custodial Account.
The Master Servicer shall have the option to purchase from the Trust
Fund any Mortgage Loan that is 90 days or more delinquent (90 days or more
delinquent shall mean delinquent as to 4 or more Monthly Payments) and that the
Master Servicer determines in good faith will otherwise become subject to
foreclosure proceedings (such determination to be evidenced by an Officer's
Certificate of the Master Servicer delivered to the Trustee prior to purchase)
for an amount equal to the Purchase Price. The Purchase Price for any Mortgage
Loan purchased pursuant to this Section 3.22 shall be deposited in the Custodial
Account, and upon receipt of written certification from the Master Servicer of
such deposit, the Trustee shall release or cause to be released to the Master
Servicer the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Master Servicer shall furnish and as shall be necessary to vest in the Master
Servicer title to any Mortgage Loan released pursuant to this Section 3.22.
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SECTION 3.23. Additional Obligations of the Master Servicer.
On each Certificate Account Deposit Date, the Master Servicer shall
deliver to the Trustee for deposit in the Certificate Account from its own funds
and without any right of reimbursement therefor, a total amount equal to the
aggregate of the Prepayment Interest Shortfalls for such Distribution Date;
provided that the Master Servicer's obligations under this subsection on any
Distribution Date shall not be more than the total amount of its servicing
compensation payable in such month.
SECTION 3.24. Additional Obligations of the Depositor.
The Depositor agrees that on or prior to the tenth day after the
Closing Date, the Depositor shall provide the Trustee with a written
notification, substantially in the form of Exhibit K attached hereto, relating
to each Class of Certificates, setting forth (i) in the case of each Class of
such Certificates, (a) if less than 10% of the aggregate Certificate Principal
Balance of such Class of Certificates has been sold as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit K hereto, or, (b) if 10% or
more of such Class of Certificates has been sold as of such date but no single
price is paid for at least 10% of the aggregate Certificate Principal Balance of
such Class of Certificates, then the weighted average price at which the
Certificates of such Class were sold and the aggregate percentage of
Certificates of such Class sold, (c) the first single price at which at least
10% of the aggregate Certificate Principal Balance of such class of Certificates
was sold, or (d) if any Certificates of each Class of Certificates are retained
by the Depositor or an affiliate corporation, or are delivered to the Seller,
the fair market value of such Certificates as of the Closing Date, (ii) the
prepayment assumption used in pricing the Certificates, and (iii) such other
information as to matters of fact as the Trustee may reasonably request to
enable it to comply with its reporting requirements with respect to each Class
of such Certificates to the extent such information can in the good faith
judgment of the Depositor be determined by it.
SECTION 3.25 Excess Proceeds Account
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Proceeds Account") in which the Master Servicer
shall, on behalf of the Trust Fund, deposit or cause to be deposited on a daily
basis, or as and when received from the Sub-Servicers, the Excess Proceeds, if
any, with respect to each Mortgage Loan as to which an REO Disposition occurs.
The Excess Proceeds Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series, from funds of investors, from funds or other
assets of the Trustee, and from the other accounts of the Trustee.
(b) On or before 2:00 P.M. Los Angeles time on each Certificate
Account Deposit Date, the Trustee shall withdraw or cause to be withdrawn from
the Excess Proceeds Account, to the extent of the amount on deposit therein at
such time, and deposit or cause to be deposited in the Certificate Account, by
wire transfer of immediately available funds, an amount
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equal to the lesser of (i) the amount, if any, on deposit in the Excess Proceeds
Account as of the close of business on the related Determination Date and
(ii)(A) the sum of the aggregate amount of all Realized Losses allocated among
the Certificates on any previous Distribution Date pursuant to Section 4.04 and
the aggregate amount of all Realized Losses to be allocated among the
Certificates on the related Distribution Date pursuant to Section 4.04 minus (B)
the aggregate amount of all distributions allocated among the Certificateholders
on any previous Distribution Date in accordance with Section 4.01(b)(xxii),
(xxiii), or (xxiv) or in accordance with Section 4.01(f).
(c) If the amount on deposit in the Excess Proceeds Account as of the
close of business on any Determination Date would exceed the product of 1.00%
and the aggregate Certificate Principal Balance of all of the Certificates
outstanding immediately after the close of business on the related Distribution
Date, the Trustee shall, on or before 2:00 P.M. Los Angeles time on the related
Certificate Account Deposit Date, withdraw or cause to be withdrawn from the
Excess Proceeds Account, to the extent of the amount on deposit therein at such
time, and deposit or cause to be deposited in the Certificate Account, by wire
transfer of immediately available funds, the excess of such amount over such
product.
(d) The Excess Proceeds Account shall be an Eligible Account in
accordance with the definition of "Excess Proceeds Account" in Section 1.01.
The Trustee shall, upon written request from the Master Servicer, invest or
cause the institution maintaining the Excess Proceeds Account to invest the
funds in the Excess Proceeds Account in one or more Permitted Instruments
designated in the name of the Trustee for the benefit of the Certificateholders,
each of which Permitted Instruments shall be held to maturity, unless payable on
demand, and shall mature, unless payable on demand, not later than the Business
Day immediately preceding the Certificate Account Deposit Date next following
the date of such investment (except that if such Permitted Instrument is an
obligation of the institution with which the Excess Proceeds Account is
maintained, then such Permitted Instrument shall mature not later than such
Certificate Account Deposit Date). All income and gain realized from any such
investment as well as any interest earned on deposits in the Excess Proceeds
Account shall be for the benefit of the Certificateholders and shall be held in
the Excess Proceeds Account (or in Permitted Instruments in which the funds in
the Excess Proceeds Account are invested) until transferred from the Excess
Proceeds Account to the Certificate Account in accordance with Section 3.25(b)
or (c). The amount of any loss incurred in respect of any such investment shall
be borne by the Certificateholders without any right of reimbursement.
(e) As part of each Determination Date Report delivered to the
Trustee in accordance with Section 4.03(a), the Master Servicer shall provide
information with respect to the amount, if any, of Excess Proceeds deposited in
the Excess Proceeds Account in respect of each Mortgage Loan as to which an REO
Disposition occurred during the related Prepayment Period.
(f) The Trustee shall promptly provide notice to the Depositor and
the Master Servicer of the initial location of the Excess Proceeds Account and
shall promptly
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provide notice to the Depositor and the Master Servicer of the location of the
Excess Proceeds Account after any change in location of the Excess Proceeds
Account.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Certificate Account; Distributions.
(a) The Trustee shall establish and maintain a Certificate Account,
in which the Master Servicer shall cause to be deposited on behalf of the
Trustee on or before 2:00 P.M. Los Angeles time on each Certificate Account
Deposit Date by wire transfer of immediately available funds an amount equal to
the sum of (i) any Advance for the immediately succeeding Distribution Date,
(ii) any amount required to be deposited in the Certificate Account pursuant to
Sections 3.13, 3.22 or 3.23 and (iii) all other amounts constituting the
Available Distribution Amount for the immediately succeeding Distribution Date.
(b) On each Distribution Date the Trustee shall distribute to the
Master Servicer, in the case of a distribution pursuant to Section 4.01(b)(iv),
(vii) or (x), and to each Certificateholder of record on the next preceding
Record Date (other than as provided in Section 9.01 respecting the final
distribution) either in immediately available funds (by wire transfer or
otherwise) to the account of such Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder has so
notified the Trustee at least 5 Business Days prior to the related Record Date
and such Certificateholder is the registered owner of Certificates the aggregate
Initial Certificate Principal Balance of which is not less than $2,500,000 (or,
with respect to the Class SA Certificates, Class SP Certificates, and the Class
SB Certificates, is the registered owner of an aggregate initial Notional Amount
of not less than $10,000,000 of the Class SA Certificates or the Class SB
Certificates), or otherwise by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register, such
Certificateholder's share (based on the aggregate of the Percentage Interests
represented by Certificates of the applicable Class held by such Holder) of the
following amounts, in the following order of priority, in each case to the
extent of the Available Distribution Amount:
(i) to the Class SA Certificateholders, Class SP
Certificateholders and the Class A-1 Certificateholders, on a pro rata
basis, based on Accrued Certificate Interest payable thereon, Accrued
Certificate Interest on such Class of Certificates for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining unpaid from
any previous Distribution Date;
(ii) to the Class P Certificateholders, the Class P Distribution
Amount, applied in reduction of Certificate Principal Balance thereof;
(iii) to the Class A-1 Certificateholders, the sum of the
following amounts applied to reduce the Certificate Principal Balance
thereof:
(A) the Class A-1 Percentage for such Distribution Date times
the Scheduled Principal and Net Recoveries for such Distribution Date
(other than the related
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Discount Fraction of the principal portion of such payments and collections
with respect to a Discount Mortgage Loan);
(B) an amount equal to (1) the Class A-1 Percentage for such
Distribution Date divided by the Senior Percentage for such Distribution
Date times (2) the Senior Prepayment Percentage for such Distribution Date
times the aggregate of all Principal Prepayments received in the related
Prepayment Period (other than the related Discount Fraction of such
Principal Prepayments with respect to a Discount Mortgage Loan);
(C) with respect to each Mortgage Loan for which a Cash
Liquidation or an REO Disposition occurred during the related Prepayment
Period and did not result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses, an amount equal
to the lesser of (i) the then applicable Class A-1 Percentage of the Stated
Principal Balance of such Mortgage Loan (other than the related Discount
Fraction of such Stated Principal Balance, with respect to a Discount
Mortgage Loan) and (ii)(a) the Class A-1 Percentage for such Distribution
Date divided by the Senior Percentage for such Distribution Date times (b)
the Senior Prepayment Percentage for such Distribution Date times the
related collections (including without limitation Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) to the extent applied by the Master
Servicer as recoveries of principal of the related Mortgage Loan pursuant
to Section 3.15 (other than the related Discount Fraction of such
collections with respect to a Discount Mortgage Loan); and
(D) any amounts described in this Section 4.01(b)(iii), as
determined for any previous Distribution Date, which remain unpaid after
application of amounts previously distributed pursuant to this clause (D)
to the extent that any such amounts are not attributable to Realized Losses
that were allocated to the Class A-2 Certificates, the Class B
Certificates, the Class SB Certificates or the Class R-II Certificates;
(iv) if the Certificate Principal Balances of the Class B
Certificates and the Class R-II Certificates have been reduced to zero, to
the Master Servicer or a Sub-Servicer, by remitting for deposit to the
Custodial Account, to the extent of and in reimbursement for any Advances
previously made with respect to any Mortgage Loan or REO Property which
remain unreimbursed in whole or in part following the Cash Liquidation or
REO Disposition of such Mortgage Loan or REO Property, minus any such
Advances that were made with respect to delinquencies that ultimately
constituted Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses;
(v) to the Class A-2 Certificateholders, Accrued Certificate
Interest on such Certificates for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date;
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(vi) to the Class A-2 Certificateholders, the sum of the
following amounts applied to reduce the Certificate Principal Balance thereof:
(A) the Class A-2 Percentage for such Distribution Date times the
Scheduled Principal and Net Recoveries for such Distribution Date (other
than the related Discount Fraction of the principal portion of such
payments and collections with respect to a Discount Mortgage Loan);
(B) an amount equal to (1) the Class A-2 Percentage for such
Distribution Date divided by the Senior Percentage for such Distribution
Date times (2) the Senior Prepayment Percentage for such Distribution Date
times the aggregate of all Principal Prepayments received in the related
Prepayment Period (other than the related Discount Fraction of such
Principal Prepayments with respect to a Discount Mortgage Loan);
(C) with respect to each Mortgage Loan for which a Cash Liquidation
or an REO Disposition occurred during the related Prepayment Period and did
not result in any Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, an amount equal to the lesser of
(i) the then applicable Class A-2 Percentage of the Stated Principal
Balance of such Mortgage Loan (other than the related Discount Fraction of
such Stated Principal Balance, with respect to a Discount Mortgage Loan)
and (ii)(a) the Class A-2 Percentage for such Distribution Date divided by
the Senior Percentage for such Distribution Date times (b) the Senior
Prepayment Percentage for such Distribution Date times the related
collections (including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to Section
3.15 (other than the related Discount Fraction of such collections with
respect to a Discount Mortgage Loan); and
(D) any amounts described in this Section 4.01(b)(vi), as determined
for any previous Distribution Date, which remain unpaid after application
of amounts previously distributed pursuant to this clause (D) to the extent
that any such amounts are not attributable to Realized Losses that were
allocated to the Class B Certificates, the Class SB Certificates and the
Class R-II Certificates;
(vii) if the Certificate Principal Balance of the Class R-II
Certificates has been reduced to zero, to the Master Servicer or a Sub-Servicer,
by remitting for deposit to the Custodial Account, to the extent of and in
reimbursement for any Advances previously made with respect to any Mortgage Loan
or REO Property which remain unreimbursed in whole or in part following the Cash
Liquidation or REO Disposition of such Mortgage Loan or REO Property, minus any
such Advances that were made with respect to delinquencies that ultimately
constituted Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses;
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(viii) to the Class B Certificateholders, Accrued Certificate
Interest on the Class B Certificates for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date;
(ix) to the Class B Certificateholders, the sum of the following
amount applied to reduce the Certificate Principal Balance thereof:
(A) the Class B Percentage for such Distribution Date times the
Scheduled Principal and Net Recoveries for such Distribution Date (other
than the related Discount Fraction of the principal portion of such
payments and collections with respect to a Discount Mortgage Loan);
(B) an amount equal to the product of the Class B Prepayment
Percentage times the aggregate of all Principal Prepayments received during
the related Prepayment Period (other than the related Discount Fraction of
such Principal Prepayments with respect to a Discount Mortgage Loan);
(C) such Class's pro rata share, based on the Certificate Principal
Balance of the Class B Certificates and Class R-II Certificates, of all
amounts received in connection with a Cash Liquidation or an REO
Disposition (x) that occurred during the preceding calendar month and (y)
that did not result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses, to the extent
applied as recoveries of principal (other than the related Discount
Fraction of the principal portion of such payments and collections with
respect to a Discount Mortgage Loan) and to the extent not otherwise
payable to the Senior Certificates; and
(D) any amounts described in this Section 4.01(b)(ix), as determined
for any previous Distribution Date, which remain unpaid after application
of amounts previously distributed pursuant to this clause (D) to the extent
that such amounts are not attributable to Realized Losses which have been
allocated to the Class SB Certificates and the Class R-II Certificates.
(x) to the Master Servicer or a Sub-Servicer, by remitting for
deposit to the Custodial Account, to the extent of and in reimbursement for any
Advances previously made with respect to any Mortgage Loan or REO Property which
remain unreimbursed in whole or in part following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property, minus any such Advances that
were made with respect to delinquencies that ultimately constituted Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses;
(xi) to the holders of the Class A-1 Certificates, the portion, if
any, of the Available Distribution Amount remaining, but in no event more than
the lesser of (A) the Accrued Certificate Interest otherwise payable on the
Class SB Certificates, prior to
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the application of payments required under Sections 4.01(b)(xi), (xii) and
(xiii) hereof and (B) the principal portion of Realized Losses previously
allocated thereto and not previously reimbursed;
(xii) to the holders of the Class A-2 Certificates, the portion,
if any, of the Available Distribution Amount remaining, but in no event more
than the lesser of (A) the Accrued Certificate Interest otherwise payable on the
Class SB Certificates, prior to the application of payments required under
Sections 4.01(b)(xi), (xii) and (xiii) hereof and (B) the principal portion of
Realized Losses previously allocated thereto and not previously reimbursed;
(xiii) to the holders of the Class B Certificates, the portion, if
any, of the Available Distribution Amount remaining, but in no event more than
the lesser of (A) the Accrued Certificate Interest otherwise payable on the
Class SB Certificates, prior to the application of payments required under
Sections 4.01(b)(xi), (xii) and (xiii) hereof and (B) the principal portion of
Realized Losses previously allocated thereto and not previously reimbursed;
(xiv) to the Class A-1 Certificateholders, an amount, applied to
reduce the Certificate Principal Balance thereof, equal to the Class A-1
Percentage for such Distribution Date divided by the Senior Percentage for such
Distribution Date times the Class SB Accrual Amount for such Distribution Date;
(xv) to the Class A-2 Certificateholders, an amount, applied to reduce
the Certificate Principal Balance thereof, equal to the Class A-2 Percentage for
such Distribution Date divided by the Senior Percentage for such Distribution
Date times the Class SB Accrual Amount for such Distribution Date;
(xvi) if the Certificate Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to zero, to the
Class B Certificateholders the Class SB Accrual Amount for such Distribution
Date, to the extent not distributed to the Class A-1 Certificates and Class A-2
Certificates;
(xvii) on and after the related Accretion Termination Date, to the
Class SB Certificateholders, Accrued Certificate Interest thereon for such
Distribution Date, except for any portion thereof applied on the related
Accretion Termination Date to satisfy the applicable condition in the definition
of "Accretion Termination Date," plus any such Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date occurring on and
after the related Accretion Termination Date;
(xviii) to the Class B Certificateholders, the portion, if any, of
the Available Distribution Amount remaining after the foregoing distributions,
applied to reduce the Certificate Principal Balance of the Class B Certificates,
but in no event more than the outstanding Certificate Principal Balance of the
Class B Certificates;
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(xix) on and after the Accretion Termination Date for the Class R-
II Certificates, to the Class SB Certificateholders, in reduction of the
Outstanding Class SB Unpaid Interest Amount, until the Outstanding Class SB
Unpaid Interest Amount has been reduced to zero;
(xx) on and after the related Accretion Termination Date, to the
Class R-II Certificateholders, Accrued Certificate Interest thereon to the
extent not added to the Certificate Principal Balance thereof on such
Distribution Date in accordance with Section 4.01(d);
(xxi) on and after the related Accretion Termination Date, to the
Class R-II Certificates the portion, if any, of the Available Distribution
Amount remaining after the foregoing distributions, applied to reduce the
Certificate Principal Balance of the Class R-II Certificates, but in no event
more than the outstanding Certificate Principal Balance of the Class R-II
Certificates;
(xxii) to the Class A-1 Certificateholders, the portion, if any, of
the Available Distribution Amount remaining, but in no event more than the
principal portion of Realized Losses previously allocated thereto and not
previously reimbursed;
(xxiii) to the Class A-2 Certificateholders, the portion, if any, of
the Available Distribution Amount remaining, but in no event more than the
principal portion of Realized Losses previously allocated thereto and not
previously reimbursed;
(xxiv) to the Class B Certificateholders, the portion, if any, of
the Available Distribution Amount remaining, but in no event more than the
principal portion of Realized Losses previously allocated thereto and not
previously reimbursed;
(xxv) to the Class R-II Certificateholders, the balance, if any,
of the Available Distribution Amount other than amounts in the Excess Proceeds
Account; and
(xxvi) to the Class R-I Certificateholders, the balance, if any, of
the Excess Proceeds Account.
(c) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Instruments designated in the
name of the Trustee for the benefit of the Certificateholders, which shall
mature not later than the Business Day next preceding the Distribution Date next
following the date of such investment (except that (i) any investment in
obligations of the institution with which the Certificate Account is maintained
may mature on such Distribution Date and (ii) any other investment may mature on
such Distribution Date if the Trustee shall agree to advance funds on such
Distribution Date to the Certificate Account in the amount payable on such
investment on such Distribution Date, pending receipt thereof to the extent
necessary to make distributions on the Certificates) and shall not be sold or
disposed
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of prior to maturity. All income and gain realized from any such investment
shall be for the benefit of the Master Servicer and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments shall be deposited in the Certificate Account by
the Master Servicer out of its own funds immediately as realized without right
of reimbursement.
(d) On each Distribution Date prior to the related Accretion
Termination Date, Accrued Certificate Interest on the Class SB Certificates for
such Distribution Date that would otherwise be distributed on such Certificates
on such Distribution Date shall instead be added to the Outstanding Class SB
Unpaid Interest Amount (which amount will have the effect of increasing the
Certificate Principal Balance of the Class R-II Certificates, to the extent
provided by operation of the definition of Certificate Principal Balance). On
or after the related Accretion Termination Date, the entire amount of Accrued
Certificate Interest on the Class SB Certificates for such Distribution Date
shall be payable to the Class SB Certificateholders to the extent that any
portion of such Accrued Certificate Interest is not required to render such date
the related Accretion Termination Date in accordance with the definition
thereof.
On each Distribution Date prior to the related Accretion Termination
Date, Accrued Certificate Interest on the Class R-II Certificates for such
Distribution Date that would otherwise be distributed on such Certificates on
such Distribution Date shall instead be added to the Certificate Principal
Balance thereof, to the extent provided by operation of the definition of
Certificate Principal Balance. On and after the related Accretion Termination
Date, the entire amount of Accrued Certificate Interest on the Class R-II
Certificates for such Distribution Date shall be payable to the Class R-II
Certificateholders to the extent that any portion of such Accrued Certificate
Interest is not required to retire the Class B Certificates after application of
all other amounts distributable under Section 4.01(b)(xix); any such portion of
Accrued Certificate Interest not payable to the Class R-II Certificates on an
Accretion Termination Date in accordance with the foregoing shall be added to
the Certificate Principal Balance thereof on such date. On and after the
related Accretion Termination Date, unpaid Accrued Certificate Interest, if any,
on the Class R-II Certificates will not be added to the Certificate Principal
Balance thereof.
(e) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall, no
later than five days after the Determination Date, mail to each Holder on such
date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the related Interest Accrual Period.
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Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust and credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(e) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within six months after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee shall
take reasonable steps as directed by the Depositor, or appoint an agent to take
reasonable steps, to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within nine months
after the second notice any such Certificates shall not have been surrendered
for cancellation, the Class R-II Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject hereto. No interest shall
accrue or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(e).
(f) On each Distribution Date, the Trustee shall distribute to each
Certificateholder of record on the next preceding Record Date (other than as
provided in Section 9.01 respecting the final distribution), in the manner set
forth in Section 4.01(b), such Certificateholder's share (based on the aggregate
of the Percentage Interests represented by the Certificates of the applicable
Class held by such Certificateholder) of the amount transferred from the Excess
Proceeds Account to the Certificate Account on the related Certificate Account
Deposit Date in accordance with Section 3.25(b), in the following order of
priority: first, to the Holders of the Class SA Certificates, Class SP
Certificates and the Class A-1 Certificates on a pro rata basis, to the extent
of and in proportion to the interest portion of the aggregate amount of all
Realized Losses allocated to the Certificates of such Classes on such
Distribution Date or any previous Distribution Date in accordance with
Section 4.04 and not subsequently recovered through any distribution in
accordance with this Section 4.01(f), and then second, to the Holders of the
Class A-1 Certificates and Class P Certificates on a pro rata basis, third, to
the Holders of the Class A-2 Certificates, and fourth, to the Holders of the
Class B Certificates, in each case to the extent of the aggregate amount of all
Realized Losses allocated to the Certificates of such Class on such Distribution
Date or any previous Distribution Date in accordance with Section 4.04 and not
subsequently recovered through any distribution in accordance with Section
4.01(b)(xxii), (xxiii) or (xxiv) or in accordance with this Section 4.01(f), and
fifth, to the Holders of the Class SB Certificates, and then sixth, to the
Holders of the Class R-II Certificates. The distribution of any amount in
accordance with this Section 4.01(f) shall not have the effect of reducing the
Certificate Principal Balance of any Certificate to which such distribution is
allocated.
(g) On each Distribution Date, the Trustee shall distribute to each
Class R-II Certificateholder of record on the next preceding Record Date (other
than as provided in
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Section 9.01 respecting the final distribution), in the manner set forth in
Section 4.01(b), such Class R-II Certificateholder's share (based on the
aggregate of the Percentage Interests represented by the Class R-II Certificates
held by such Class R-II Certificateholder) of the amount transferred from the
Excess Proceeds Account to the Certificate Account on the related Certificate
Account Deposit Date in accordance with Section 3.25(c). The distribution of
any amount in accordance with this Section 4.01(g) shall not have the effect of
reducing the Certificate Principal Balance of any Class R-II Certificate to
which such distribution is allocated.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Senior Certificate, a Class B Certificate,
Class SB Certificate or Class R-II Certificate and to the Depositor and the
Master Servicer a statement as to such distribution setting forth:
(i) (a) the amount of such distribution to the Certificateholders of
each Class applied to reduce the Certificate Principal Balance thereof, (b)
the aggregate amount included therein representing Principal Prepayments,
and (c) the Senior Prepayment Percentage with respect to the Class A-1
Certificates and the Class A-2 Certificates and the Class B Prepayment
Percentage applicable to such distribution;
(ii) the amount of such distribution to the Certificateholders of
each Class allocable to interest, and the Class SB Accrual Amount and Class
R-II Accrual Amount for such Distribution Date;
(iii) the amount of related servicing compensation received by or
on behalf of the Master Servicer and any Sub-Servicers with respect to such
Distribution Date and such other customary information as the Master
Servicer deems necessary or desirable and supplies to the Trustee, or which
a Certificateholder reasonably requests, to enable Certificateholders to
prepare their tax returns;
(iv) the aggregate amount of Advances included in such
distribution on such Distribution Date;
(v) the number and aggregate Stated Principal Balance of the
Mortgage Loans at the close of business on such Distribution Date;
(vi) the Certificate Principal Balance of a Single Certificate of
such Class, the aggregate Certificate Principal Balance of the Class A-1
Certificates, the Class A-2 Certificates, the Class P Certificates, the
Class B Certificates and the Class R Certificates, respectively, and the
Senior Percentage, Class A-1 Percentage, Class A-2 Percentage, Class B
Percentage and Class R-II Percentage, after giving effect to the amounts
distributed on such Distribution Date separately identifying any reduction
thereof due to Realized Losses other than pursuant to an actual
distribution of principal;
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(vii) the number and aggregate Stated Principal Balance of
Mortgage Loans (a) delinquent 31 to 60 days, (b) delinquent 61 to 90 days,
(c) delinquent 91 days or more;
(viii) the number and aggregate Stated Principal Balance of
Mortgage Loans as to which foreclosure proceedings have been commenced in
each case as of the related Determination Date and which are (a) delinquent
31 to 60 days, (b) delinquent 61 to 90 days, (c) delinquent 91 days or
more;
(ix) the number and aggregate Stated Principal Balance of
Mortgage Loans as to which bankruptcy proceedings have been commenced in
each case as of the related Determination Date and which are (a) delinquent
31 to 60 days, (b) delinquent 61 to 90 days, (c) delinquent 91 days or
more;
(x) with respect to any Mortgage Loan that became a REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Distribution Date in such month and the date of acquisition thereof;
(xi) the book value of any REO Property as of the close of
business on the last Business Day of the calendar month preceding the
Distribution Date;
(xii) the Pass-Through Rate in effect for the preceding calendar
month with respect to the Class SA Certificates, the Class SP Certificates,
the Class A-1 Certificates, the Class A-2 Certificates, the Class B
Certificates and the Class R-II Certificates;
(xiii) the aggregate Accrued Certificate Interest remaining unpaid,
if any, for each Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xiv) the Special Hazard Amount, Fraud Loss Amount and Bankruptcy
Amount remaining available immediately after such Distribution Date;
(xv) the aggregate Realized Losses incurred since the Cut-off
Date; and
(xvi) the amount of any Excess Proceeds distributed to each class
of Certificates.
In the case of information furnished pursuant to subclauses (i)-(iii)
above, the amounts shall also be expressed as a dollar amount per Single
Certificate.
On each Distribution Date the Trustee shall prepare and forward, to
each Holder of a Class R-I Certificate a copy of the reports forwarded to the
Senior, Class B and Class R-II
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Certificateholders on such Distribution Date and a statement setting forth the
amounts actually distributed with respect to the Class R-I Certificates on such
Distribution Date.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall prepare and forward, to each Person who at any time
during the calendar year was a Holder of a Senior Certificate, a Class B
Certificate or a Residual Certificate a statement containing the information set
forth in subclauses (i) - (iii) above, aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code and regulations thereunder as
from time to time are in force.
SECTION 4.03. Remittance Reports; Advances by the Master Servicer.
(a) On the second Business Day following each Determination Date, the
Master Servicer shall deliver to the Trustee a report, prepared as of the close
of business on the Determination Date (the "Determination Date Report"), in the
form of an electromagnetic tape or disk. The Determination Date Report and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably available to the Master
Servicer and that is required by the Trustee for purposes of making the
calculations referred to in the following paragraph, as set forth in written
specifications or guidelines issued by the Trustee from time to time. Not later
than 10:00 A.M. Los Angeles time on the Business Day preceding each Certificate
Account Deposit Date, the Trustee shall furnish by telecopy to the Master
Servicer a statement (the information in such statement to be made available to
Certificateholders or the Depositor by the Master Servicer on request) setting
forth (i) the Available Distribution Amount and (ii) the amounts required to be
withdrawn from the Custodial Account and deposited into the Certificate Account
on the immediately succeeding Certificate Account Deposit Date pursuant to
clause (iii) of Section 4.01(a). The Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Master
Servicer. The determination by the Trustee of such amounts shall, in the
absence of obvious error, be presumptively deemed to be correct for all purposes
hereunder.
(b) Prior to the close of business on the Business Day preceding each
Certificate Account Deposit Date, the Trustee shall notify the Master Servicer
of the aggregate amount of Advances required to be made for the related
Distribution Date, which shall be in an aggregate amount equal to the aggregate
amount of Monthly Payments (with each interest portion thereof adjusted to the
Net Mortgage Rate), less the amount of any related Debt Service Reductions or
reductions in the amount of interest collectable from the Mortgagor pursuant to
the Soldiers' and Sailors' Civil Relief Act of 1940, on the Outstanding Mortgage
Loans as of the related Due Date, which Monthly Payments were delinquent as of
the close of business as of the related Determination Date; provided that
following the reduction of the Certificate Principal Balances of the Class A-2
Certificates, the Class B Certificates and the Class R-II Certificates to zero
and the occurrence of the Accretion Termination Date for the Class SB
Certificates, no Advance shall be made if it would be a Nonrecoverable Advance.
On or before
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2:00 P.M. Los Angeles time on each Certificate Account Deposit Date, the Master
Servicer shall either (i) deposit in the Certificate Account from its own funds,
or funds received therefor from the Sub-Servicers, an amount equal to the
Advances to be made by the Master Servicer in respect of the related
Distribution Date, (ii) withdraw from amounts on deposit in the Custodial
Account and deposit in the Certificate Account all or a portion of the amounts
held for future distribution in discharge of any such Advance, or (iii) make
advances in the form of any combination of (i) and (ii) aggregating the amount
of such Advance. Any portion of the amounts held for future distribution so
used shall be replaced by the Master Servicer by deposit in the Certificate
Account on or before 11:00 A.M. Los Angeles time on any future Certificate
Account Deposit Date to the extent that funds attributable to the Mortgage Loans
that are available in the Custodial Account for deposit in the Certificate
Account on such Certificate Account Deposit Date shall be less than payments to
Certificateholders required to be made on the following Distribution Date. The
amount of any reimbursement pursuant to any clause under Section 4.01(b), in
respect of outstanding Advances on any Distribution Date shall be allocated to
specific Monthly Payments due but delinquent for previous Due Periods, which
allocation shall be made, to the extent practicable, to Monthly Payments which
have been delinquent for the longest period of time. Such allocations shall be
conclusive for purposes of reimbursement to the Master Servicer from recoveries
on related Mortgage Loans pursuant to Section 3.11. The determination by the
Master Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced
by a certificate of a Servicing Officer delivered to the Seller and the Trustee.
The Trustee shall deposit all funds it receives pursuant to this Section 4.03
into the Certificate Account.
(c) In the event that the Master Servicer determines as of the
Business Day preceding any Certificate Account Deposit Date that it will be
unable to deposit in the Certificate Account an amount equal to the Advance
required to be made for the immediately succeeding Distribution Date in the
amount determined by the Trustee pursuant to paragraph (b) above, it shall give
notice to the Trustee of its inability to advance (such notice may be given by
telecopy), not later than 3:00 P.M., Los Angeles time, on such Business Day,
specifying the portion of such amount that it will be unable to deposit. Not
later than 5:30 P.M., Los Angeles time, on the Certificate Account Deposit Date,
unless by such time the Master Servicer shall have directly or indirectly
deposited in the Certificate Account the entire amount of the Advances required
to be made for the related Distribution Date, pursuant to Section 7.01, the
Trustee shall (a) terminate all of the rights and obligations of the Master
Servicer under this Agreement in accordance with Section 7.01 and (b) assume the
rights and obligations of the Master Servicer hereunder, including the
obligation to deposit in the Certificate Account an amount equal to the Advance
for the immediately succeeding Distribution Date; provided, however, that the
Trustee's obligation to advance such amounts shall be as of the related
Distribution Date.
SECTION 4.04. Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine
the total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Debt Service Reduction, Deficient Valuation or REO Disposition that
occurred during the related Prepayment
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Period. The amount of each Realized Loss shall be evidenced by an Officers'
Certificate by the Master Servicer. Realized Losses shall be allocated among
the various Classes of Certificates as determined by the Trustee in accordance
with the following provisions. All Realized Losses other than Excess Special
Hazard Losses, Extraordinary Losses, Excess Bankruptcy Losses or Excess Fraud
Losses, shall be allocated first to the Class R-II Certificates, then to the
Class SB Certificates (to the extent of the interest portions of such Realized
Losses), then to the Class B Certificates, then to the Class A-2 Certificates,
in each case (other than for the Class SB Certificates) until the Certificate
Principal Balance thereof has been reduced to zero, and, thereafter, any
Realized Losses on the Mortgage Loans will be allocated, if any such loss is on
a Discount Mortgage Loan, to the Class P Certificates in an amount equal to the
related Discount Fraction of the principal portion of such Realized Loss, and,
with respect to any Discount Mortgage Loan following its initial Adjustment Date
to the Class SP Certificates in an amount equal to the related Discount Fraction
of the interest portion of such Realized Losses, and the remainder of such
Realized Losses and the entire amount of such Realized Losses on the Non-
Discount Mortgage Loans to the remaining Classes of Senior Certificates (other
than the Class P Certificates) on a pro-rata basis, with the principal portion
thereof to the Class A-1 Certificates and the interest portion thereof to the
Class SA Certificates, Class SP Certificates and Class A-1 Certificates on a pro
rata basis. Any Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess
Fraud Losses and Extraordinary Losses on the Non-Discount Mortgage Loans will be
allocated to the Class SA Certificates, the Class A-1 Certificates, the Class A-
2 Certificates, the Class B Certificates, the Class SB Certificates and the
Class R-II Certificates on a pro rata basis, as described below. The principal
portion of such losses on Discount Mortgage Loans will be allocated to the Class
P Certificates in an amount equal to the related Discount Fraction thereof,
following the related initial Adjustment Date, the interest portion of such
losses on such Discount Mortgage Loans will be allocated to the Class SP
Certificates in an amount equal to the related Discount Fractions of such losses
and the remainder of such losses on Discount Mortgage Loans will be allocated
among all classes of Certificates (other than the Class P Certificates) on a pro
rata basis. As used herein, an allocation of a Realized Loss on a "pro rata
basis" among two or more specified Classes of Certificates means an allocation
on a pro rata basis, without priority among the various Classes so specified, to
each such Class of Certificates on the basis of the then outstanding Certificate
Principal Balances thereof in the case of the principal portion of a Realized
Loss or based on the Accrued Certificate Interest thereon in the case of an
interest portion of a Realized Loss. Any allocation of the principal portion of
Realized Losses (other than Debt Service Reductions) to a Certificate (except as
follows) shall be made by reducing the Certificate Principal Balance thereof by
the amount so allocated, which allocation shall be deemed to have occurred at
the close of business on such Distribution Date. Any allocation of the
principal portion of Realized Losses (other than Debt Service Reductions) to the
most subordinate Class of Certificates outstanding, shall be made by operation
of the definition of "Certificate Principal Balance," and by operation of the
provisions of Section 4.01(b). Allocations of the interest portions of Realized
Losses shall be made by operation of the definition of "Accrued Certificate
Interest" and by operation of the provisions of Section 4.01(b). Allocations of
the principal portion of Debt Service Reductions shall be made by operation of
the provisions of Section 4.01(b). All Realized Losses and all other losses
allocated to a Class of Certificates hereunder will be
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allocated among the Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. For purposes of the foregoing, the Trustee shall
maintain records relating to the Bankruptcy Amount, Fraud Loss Amount and
Special Hazard Amount as in effect from time to time.
SECTION 4.05. Information Reports to be Filed by the Master Servicer.
The Master Servicer or Sub-Servicers shall file information returns
with respect to the receipt of mortgage interest received in a trade or
business, reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively, and
promptly deliver upon such filing to the Trustee an Officer's Certificate
stating that such reports have been filed. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by such Sections
6050H, 6050J and 6050P of the Code.
SECTION 4.06. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall
comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount on the Mortgage Loans,
and payments of interest or discount on amounts invested by the Trustee as agent
for Certificateholders pursuant to an election made under Section 4.01 hereof,
that the Trustee reasonably believes are applicable under the Code. The consent
of Certificateholders shall not be required for such withholding. In the event
the Trustee withholds any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report to
such Certificateholders pursuant to Section 4.02 hereof, indicate such amount
withheld.
SECTION 4.07. Distributions on the Uncertificated REMIC I Regular
Interests.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the Uncertificated REMIC I Regular Interests,
the Uncertificated REMIC I Regular Interest Distribution Amounts in the
following order of priority, to the extent of the Available Distribution Amount:
(i) Uncertificated Accrued Interest on the Uncertificated REMIC I
Regular Interests for such Distribution Date, plus any Uncertificated
Accrued Interest thereon remaining unpaid from any previous Distribution
Date; and
(ii) In accordance with the priority set forth in Section 4.07(b), an
amount equal to the sum of the amounts distributable in respect of
principal on the Class A-1, Class A-2, Class B-1, Class B-2, Class B-3 and
Class P Certificates under Section 4.01(b), as allocated thereto pursuant
to Section 4.01(b).
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(b) The amount described in Section 4.07(a)(ii) shall be deemed
distributed to the Uncertificated REMIC I Regular Interests X with the amount
deemed distributed allocated to each such Uncertificated REMIC I Regular
Interest based on the portion of such amount attributable to the related Non-
Discount Mortgage Loan. The amount described in Section 4.07(a)(ii) shall be
deemed distributed to the Uncertificated REMIC I Regular Interests Y and
Uncertificated REMIC I Regular Interests Z with the amount deemed distributed
allocated to each such Uncertificated REMIC I Regular Interest based on the
portion of such attributable to the Structured Fraction and the Discount
Fraction, respectively, of the related Discount Mortgage Loan.
(c) In determining from time to time the Uncertificated REMIC I
Regular Interest Distribution Amounts, (i) Realized Losses on the Non-Discount
Mortgage Loans shall be deemed allocated to Uncertificated REMIC I Regular
Interests X; (ii) Realized Losses allocated to the Discount Mortgage Loans shall
be deemed allocated to the Uncertificated REMIC I Regular Interests Y and
Uncertificated REMIC I Regular Interests Z pro rata in accordance with their
principal balances or interest entitlements, as the case may be (depending on
whether such Realized Loss is allocable to interest or principal).
(d) Notwithstanding the deemed distributions on the Uncertificated
REMIC I Regular Interests described in this Section 4.07, distributions of funds
from the Certificate Account shall be made only in accordance with Section 4.01.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A, B-1, B-2 and B-3. The Certificates will be
issuable in registered form only. Except as provided in Section 5.01(b), the
Class A-1 Certificates shall be issuable in denominations evidencing initial
Certificate Principal Balances of not less than $1.00 and integral multiples of
$1.00 in excess thereof. The Class A-2 Certificates and shall be issuable in
denominations evidencing initial Certificate Principal Balances of not less than
$25,000 and integral multiples of $1,000 in excess thereof, except that one
Certificate of the Class A-2 Certificates may be issued in an amount evidencing
the sum of the authorized minimum denomination thereof and the remainder of the
aggregate initial Certificate Principal Balance of such Class. The Class SP
Certificates and the Class B Certificates will be issuable in denominations
evidencing initial Certificate Principal Balances of not less than $250,000 and
integral multiples of $1,000 in excess thereof, except that one Certificate of
each of the Class P Certificates and the Class B Certificates may be issued in
an amount evidencing the sum of the authorized minimum denomination thereof and
the remainder of the aggregate initial Certificate Principal Balance of such
Class. The Class SP Certificates and the Class SB Certificates will be issuable
in denominations evidencing an initial Notional Amount of not less than $250,000
and integral multiples of $1,000 in excess thereof, except that one Certificate
may be issued in an amount evidencing the sum of the authorized minimum
denomination thereof and the remainder of the aggregate initial Notional Amount.
Each Class of Residual Certificates will each be issuable in denominations of
any Percentage Interest representing 5.00% and multiples of 0.01% in excess
thereof; provided, however, that one R Certificate of each such Class may be
issued to the "tax matters person" pursuant to Article X, in a minimum
denomination representing a Percentage Interest of not less than 0.01%.
Upon original issue, the Certificates shall, upon the written request
of the Depositor executed by an officer of the Depositor, be executed and
delivered by the Trustee, authenticated by the Trustee and delivered to or upon
the order of the Depositor upon receipt by the Trustee of the documents
specified in Section 2.01. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee in its capacity as trustee
hereunder by a Responsible Officer. Certificates bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Trustee shall bind the Trustee, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been
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duly authenticated and delivered hereunder. All Certificates issued on the
Closing Date shall be dated the Closing Date and any Certificates delivered
thereafter shall be dated the date of their authentication.
(b) The Class SA Certificates and the Class A-1 Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Trustee except to another Depository
that agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. The Certificate Owners shall hold their respective
Ownership Interests in and to each of the Class SA Certificates and the Class A-
1 Certificates through the book-entry facilities of the Depository and, except
as provided below, shall not be entitled to Definitive Certificates in respect
of such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the respective Classes
of Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the respective Classes of Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of any Class of Book-Entry Certificates with respect to any particular
matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee shall utilize the next available
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, 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 Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall, at the Depositor's expense, issue the Definitive
Certificates. The Definitive Certificates shall be issuable in denominations
evidencing initial Certificate Principal Balances or Notional Amounts, as
applicable, of $1,000 and integral multiples of $1.00 in excess thereof,
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except that any such Definitive Certificate that was represented by a Book-Entry
Certificate evidencing an initial Certificate Principal Balance or Notional
Amount of less than $1,000 immediately prior to the issuance of such Definitive
Certificate shall be issued in a denomination, the initial Certificate Principal
Balance or Notional Amount, as the case may be evidenced by such Book-Entry
Certificate. Neither the Depositor, the Master Servicer nor the Trustee shall
be liable for any actions taken by the Depository or its nominee, including,
without limitation, 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 Depository in connection with
the issuance of the Definitive Certificates pursuant to this Section 5.01 shall
be deemed to be imposed upon and performed by the Trustee, and the Trustee and
the Master Servicer shall recognize the Holders of the Definitive Certificates
as Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall maintain a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided.
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge
or other disposition of a Class SP Certificate, Class P Certificate, a Class SB
Certificate, Class R-I Certificate or a Class R-II Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
and any applicable state securities laws or is made in accordance with said Act
and laws. In the event that a transfer of a Class SP Certificate, a Class P
Certificate, a Class SB Certificate, Class R-I Certificate or a Class R-II
Certificate is to be made under this Section 5.02(b), (i) the Depositor may
direct the Trustee to require an Opinion of Counsel acceptable to and in form
and substance satisfactory to the Trustee and the Depositor that such transfer
shall be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said Act
and laws, which Opinion of Counsel shall not be an expense of the Trustee, the
Depositor or the Master Servicer, provided that such Opinion of Counsel will not
be required in connection with the initial transfer of any such Certificate by
the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and
(ii) the Trustee shall require the transferee to execute a representation
letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall
require the transferor to execute a representation letter, substantially in the
form of Exhibit G-2 hereto, each acceptable to and in form and substance
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which representation letters
shall not be an expense of the Trustee, the Depositor or the Master Servicer;
provided however that such representation letters will not be required in
connection with any transfer of any such Certificate by the Depositor to an
affiliate of the Depositor and the Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the
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Depositor. Any such Certificateholder desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee, the Depositor and the Master
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such applicable federal and state laws.
(c) Transfers of Class SP, Class P, Class SB, Class R-I and Class R-
II Certificates may be made in accordance with this Section 5.02(c) if the
prospective transferee of such a Certificate provides the Trustee and the
Depositor with an investment letter substantially in the form of Exhibit H
attached hereto, which investment letter shall not be an expense of the Trustee,
the Depositor or the Master Servicer, and which investment letter states that,
among other things, such transferee is a "qualified institutional buyer" as
defined under Rule 144A. Such transfers shall be deemed to have complied with
the requirements of Section 5.02(b) hereof; provided, however, that no Transfer
of any of the Class SP, Class P, Class SB, Class R-I and Class R-II Certificates
may be made pursuant to this Section 5.02(c) by the Depositor. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Depositor and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such applicable federal and state laws.
(d) The Trustee shall require an Opinion of Counsel from a
prospective transferee prior to the transfer of any Class A-2 Certificate, Class
B Certificate, Class SB Certificate, Class R-I Certificate or Class R
Certificate to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and Xxxxx plans, that is subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a
trustee or other Person acting on behalf of any Plan, or to any other person who
is using "plan assets" of any Plan to effect such acquisition (including any
insurance company using funds in its general or separate accounts that may
constitute "plan assets"). Such Opinion of Counsel must establish to the
satisfaction of the Depositor and the Trustee or the Certificate Registrar that
such disposition will not violate the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the
Master Servicer nor the Trustee will be required to obtain such Opinion of
Counsel on behalf of any prospective transferee. In the case of any transfer of
the foregoing Certificates to an insurance company, in lieu of such Opinion of
Counsel, the Trustee shall require a certification in the form of Exhibit G-5
(or in such other form as shall be mutually agreed upon by the Depositor and the
Trustee) substantially to the effect that all funds used by such transferee to
purchase such Certificates will be funds held by it in its general account which
it reasonably believes do not constitute "plan assets" of any Plan (as defined
above); provided however that such certification will not be required in
connection with any transfer of any such Certificate by the Depositor to an
affiliate of the Depositor and the Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor. The permission of any transfer in violation of
the restriction on transfer set forth in this paragraph shall not constitute a
default or an Event of Default.
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(e)(i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery to
it, and shall not register the Transfer of any Residual Certificate until
its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and
Agreement" in the form attached hereto as Exhibit G-3) from the proposed
Transferee, in form and substance satisfactory to the Master Servicer and
the Trustee representing and warranting, among other things, that it is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of this Section 5.02 and agrees to be bound by
them, and (II) a certificate, in the form attached hereto as Exhibit G-4,
from the Holder wishing to transfer the Residual Certificate, in form and
substance satisfactory to the Master Servicer and the Trustee representing
and warranting, among other things, that no purpose of the proposed
Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee assigned to this transaction has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of
an Ownership Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer
its Ownership Interest in a Residual Certificate and (y) not to transfer
its Ownership Interest unless it provides a certificate to the Trustee in
the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a "pass-
through interest holder" within the meaning of
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Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Residual Certificate, if it is "a
pass-through interest holder", or is holding an Ownership Interest in a
Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit and Agreement
in the form attached hereto as Exhibit G-3, a certificate of the Holder
requesting such transfer in the form attached hereto as Exhibit G-4 and all of
such other documents as shall have been reasonably required by the Trustee as a
condition to such registration. Transfers of the Residual Certificates to Non-
United States Persons and Disqualified Organizations are prohibited.
(iii) (A) If any Disqualified Organization shall become a Holder of
a Residual Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. If a Non-United States Person shall become a Holder of a
Residual Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. If a transfer of a Residual Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section
1.860G-3, then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by this Section 5.02 or for making any payments due on such Certificate to the
holder thereof or for taking any other action with respect to such holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section 5.02 and
to the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the holder or any prior holder of such Residual Certificate,
to sell such Residual Certificate to a purchaser selected by the Trustee on such
terms as the Trustee may choose. Such purported Transferee shall promptly
endorse and deliver each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee itself. The
proceeds of such sale, net of the commissions (which may include commissions
payable to the Trustee), expenses and taxes due, if any, will be remitted by the
Trustee to such purported Transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Trustee, and the Trustee shall not be liable to any Person having an Ownership
Interest in a Residual Certificate as a result of its exercise of such
discretion.
(iv) The Trustee shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions, all information necessary
to compute any tax
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imposed (A) as a result of the transfer of an ownership interest in a Residual
Certificate to any Person who is a Disqualified Organization, including the
information regarding "excess inclusions" of such Class R Certificates required
to be provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Residual Certificate having as
among its record holders at any time any Person who is a Disqualified
Organization. The Trustee may charge and shall be entitled to reasonable
compensation for providing such information as may be required from those
Persons which may have had a tax imposed upon them as specified in clauses (A)
and (B) of this paragraph for providing such information.
(f) Subject to the preceding paragraphs, upon surrender for
registration of transfer of any Certificate at the office of the Trustee
maintained for such purpose, the Trustee shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate initial Certificate Principal Balance. Every
Certificate surrendered for transfer shall be accompanied by notification of the
account of the designated transferee or transferees for the purpose of receiving
distributions pursuant to Section 4.01 by wire transfer, if any such transferee
desires and is eligible for distribution by wire transfer.
(g) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate initial Certificate Principal Balance, upon surrender of the
Certificates to be exchanged at the office of the Certificate Registrar.
Whenever any Certificates are so surrendered for exchange the Trustee shall
execute, authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the Trustee or the
Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee or the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(h) No service charge shall be made to the Certificateholders for any
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
canceled and retained by the Trustee in accordance with the Trustee's standard
procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate, and (ii)
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there is delivered to the Trustee such security or indemnity as may be required
by it to save it harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and initial Certificate Principal Balance. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and neither the Depositor,
the Master Servicer, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Depositor and the Master Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor or
the Master Servicer.
The Depositor and the Master Servicer each will keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and each will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged, consolidated or
converted, or any corporation resulting from any merger or consolidation to
which the Depositor shall be a party, or any Person succeeding to the business
of the Depositor, shall be the successor of the Depositor 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.
Any Person into which the Master Servicer may be merged, consolidated
or converted, or any corporation resulting from any merger or consolidation to
which the Master Servicer shall be a party, or any Person succeeding to the
business of the Master Servicer (including by a transfer of servicing portfolio
or operations by the Master Servicer), shall be the successor of the Master
Servicer hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, however, that the
successor or surviving Person to the Master Servicer must meet the criteria set
forth in Section 7.03 for a successor Master Servicer and shall be qualified to
sell mortgage loans to and service mortgage loans for FNMA or FHLMC.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others.
Neither the Depositor, the Master Servicer nor any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or the Master Servicer (but this
provision shall
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protect the above described persons) against any breach of warranties or
representations made herein, or against any specific liability imposed on the
Master Servicer pursuant to Section 3.01 or any other Section hereof; and
provided further that this provision shall not protect the Depositor, the Master
Servicer or any such person, against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer may rely in good faith
on any document of any kind PRIMA FACIE properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to Master Servicer's servicing obligations with respect to
any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) or
related to the Master Servicer's obligations under Section 3.01, or any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Master Servicer may in its sole
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom (except
any action or liability related to the Master Servicer's obligations under
Section 3.01) shall be expenses, costs and liabilities of the Trust Fund, and
the Depositor and the Master Servicer shall be entitled to be reimbursed
therefor from the Certificate Account as provided in Section 3.11, any such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Certificate Account.
SECTION 6.04. Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from the Rating Agency that such a
resignation and appointment will not, in and of itself, result in a downgrading
of the Certificates or (b) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a successor servicer shall have assumed the
Master Servicer's responsibilities, duties, liabilities and obligations
hereunder.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Trustee for
distribution to the Certificateholders any payment (other than an Advance)
required to be made under the terms of the Certificates or 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 Master Servicer by the Depositor (with a copy
to the Trustee) or the Trustee, or to the Master Servicer, the Depositor
and the Trustee by the Holders of Certificates entitled to at least 25% of
the Voting Rights; or
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer contained in the Certificates or in this
Agreement (including any breach of the Master Servicer's representations
and warranties pursuant to Section 2.03(a) which materially and adversely
affects the interests of the Certificateholders) 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
Master Servicer by the Depositor (with a copy to the Trustee) or the
Trustee, or to the Master Servicer, the Depositor and the Trustee by the
Holders of Certificates entitled to at least 25% of the Voting Rights; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or of or relating to all or substantially
all of its property; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of or otherwise voluntarily commence a case or proceeding under any
applicable bankruptcy, insolvency,
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reorganization or other similar statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall fail to deposit in the Certificate
Account on any Certificate Account Deposit Date an amount equal to any
required Advance.
If an Event of Default described in clauses (i) - (v) of this Section shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Depositor or the Trustee may, and at the
direction of the Holders of Certificates entitled to at least 51% of the Voting
Rights, the Trustee shall, by notice to the Master Servicer (and to the
Depositor if given by the Trustee or to the Trustee if given by the Depositor)
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (vi)
hereof shall occur, the Trustee shall, by notice to the Master Servicer and the
Depositor, terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder; provided, however, that if the Trustee determines
that the failure by the Master Servicer to make any required Advance was due to
circumstances beyond its control, and the required Advance was otherwise made,
the Trustee shall not terminate the Master Servicer. On or after the receipt by
the Master Servicer of such notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates (other
than as a holder thereof) or the Mortgage Loans or otherwise, shall pass to and
be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its appointed agent for administration by it of
all cash amounts which shall at the time be deposited by the Master Servicer or
should have been deposited to the Custodial Account, the Excess Proceeds Account
or the Certificate Account or thereafter be received with respect to the
Mortgage Loans. The Trustee shall not be deemed to have breached any obligation
hereunder as a result of a failure to make or delay in making any distribution
as and when required hereunder caused by the failure of the Master Servicer to
remit any amounts received on it or to deliver any documents held by it with
respect to the Mortgage Loans. For purposes of this Section 7.01, the Trustee
shall not be deemed to have knowledge of an Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Division has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
Notwithstanding any termination of the activities of Temple-Inland Mortgage
Corporation ("TIMC") in its capacity as Master Servicer hereunder, TIMC shall be
entitled to receive, out
of any Late Collection of a Monthly Payment on a Mortgage Loan which was due
prior to the notice terminating TIMC's rights and obligations as Master Servicer
hereunder and received after such notice, that portion to which TIMC would have
been entitled pursuant to Sections 3.11(ii), (iii), (iv), (v) and (viii) and
Sections 4.01(b)(iv), (vii) and (x) as well as its Servicing Fee in respect
thereof, and any other amounts payable to TIMC hereunder the entitlement to
which arose prior to the termination of its activities hereunder.
SECTION 7.02. Termination Event.
The Trustee shall determine, beginning with the Determination Date in
December 1996 and as determined by the Trustee annually thereafter based on
information provided by the Master Servicer, whether the following tests are
satisfied: (a) if such Determination Date is in or before December 2000, whether
the related Total Expected Losses are greater than 50% of the Initial Loss
Coverage or (b) if such Determination Date is after December 2000 and in or
before December 2005, whether the related Total Expected Losses are greater than
75% of the Initial Loss Coverage. If either of the tests in the previous
sentence are satisfied, a termination event (a "Termination Event") shall occur,
and the Trustee shall give notice to the Certificateholders within 5 days of the
occurrence of such Termination Event, and upon the direction of Holders of
Certificates entitled to at least 51% of the Voting Rights, received within 90
days of such notice, the Trustee shall, by notice to the Master Servicer and the
Depositor, terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder. On or after the receipt by the Master Servicer of
such notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates (other than as a holder
thereof) or the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee or its appointed agent for administration by it of all
cash amounts which shall at the time be deposited by the Master Servicer or
should have been deposited to the Custodial or the Certificate Account or
thereafter be received with respect to the Mortgage Loans. The Trustee shall
not be deemed to have breached any obligation hereunder as a result of a failure
to make or delay in making any distribution as and when required hereunder
caused by the failure of the Master Servicer to remit any amounts received on it
or to deliver any documents held by it with respect to the Mortgage Loans.
SECTION 7.03. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or Section 7.02, the Trustee or its
appointed agent shall be the
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successor in all respects to the Master Servicer in its capacity as Master
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject thereafter to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer including the
obligation to make Advances which have been or will be required to be made
(except for the responsibilities, duties and liabilities contained in Section
2.03 and its obligations to deposit amounts in respect of losses pursuant to
Sections 3.12 and 4.01(c)) by the terms and provisions hereof; and provided
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's failure to provide information required by Section 4.03
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans which the Master Servicer would have been entitled to charge to the
Custodial Account and the Certificate Account if the Master Servicer had
continued to act hereunder. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act (exclusive of
the obligations set forth in Section 4.03) or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, appoint, or petition a court of competent jurisdiction to appoint, any
mortgage loan servicing institution (acceptable to the Rating Agencies) having a
net worth of not less than $10,000,000 (or other amount acceptable to the Rating
Agencies) as the successor to the Master Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Master Servicer hereunder.
The Seller, the Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
Any successor, including the Trustee, to the Master Servicer shall
maintain in force during its term as master servicer hereunder policies and
fidelity bonds to the same extent as the Master Servicer is so required pursuant
to Section 3.18.
SECTION 7.04. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt notice thereof to
Certificateholders.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
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SECTION 7.05. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder, may waive such
default or Event of Default; PROVIDED, HOWEVER, that (a) a default or Event of
Default under clause (i) of Section 7.01 may be waived only by all of the
Holders of Certificates affected by such default or Event of Default and (b) no
waiver pursuant to this Section 7.05 shall affect the Holders of Certificates in
the manner set forth in the third paragraph of Section 11.01. Upon any such
waiver of a default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates affected by such default
or Event of Default, such default or Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default occurs and is continuing, 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 man would
exercise or use under the circumstances in the conduct of his own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
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
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take action as it deems appropriate to have the instrument
corrected.
The Trustee shall sign on behalf of the Trust Fund any tax return that
the Trustee is required to sign pursuant to applicable federal, state or local
tax laws.
The Trustee covenants and agrees that it shall perform its obligations
hereunder in a manner so as to maintain the status of REMIC I and REMIC II as a
REMIC under the REMIC Provisions and to prevent the imposition of any federal,
state or local income, prohibited transaction, contribution or other tax on the
Trust Fund to the extent that maintaining such status and avoiding such taxes
are reasonably within the control of the Trustee and are reasonably within the
scope of its duties under this Agreement.
The Trustee shall cooperate to the extent practicable, with the
Depositor in the preparation of any information, for the Holder of any
Certificate, which the Depositor in its sole discretion deems necessary and
appropriate for purposes of satisfying applicable information reporting
requirements under Rule 144A or otherwise.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such
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duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be 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 entitled to at
least 25% of the Voting Rights relating 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.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel and any 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 therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been
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cured), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The
reasonable expense of every such reasonable examination shall be paid by
the Master Servicer or, if paid by the Trustee, shall be repaid by the
Master Servicer upon demand; and
(f) 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.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
signature of the Trustee on the Certificates and the certificate of
authentication, shall be taken as the statements of the Depositor or the Master
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document, other than the signature of the Trustee on
the Certificates and the Certificate of Authentication. The Trustee shall not
be accountable for the use or application by the Depositor or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Seller in respect of the
Mortgage Loans or deposited in or withdrawn from the Custodial Account, the
Excess Proceeds Account or the Certificate Account or any other account by or on
behalf of the Depositor or the Master Servicer, other than any funds held by or
on behalf of the Trustee in accordance with Section 3.10.
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SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
SECTION 8.05. Master Servicer to Pay Trustee's Fees.
The Master Servicer covenants and agrees to pay to the Trustee or any
co-trustee appointed pursuant to Section 8.10 from time to time, and the Trustee
and such co-trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee or any co-trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder or of the Trustee or any
co-trustee. Except as otherwise provided in this Agreement, the Trustee or any
co-trustee and any director, officer, employee or agent of the Trustee or any
co-trustee shall be indemnified by the Trust Fund and held harmless against any
claim, loss, liability or expense incurred in connection with any Event of
Default, any breach of this Agreement, any claim or legal action, including any
pending or threatened claim or legal action relating to the acceptance or
administration of its trusts hereunder or the Certificates, other than any
claim, loss, liability or expense incurred in connection with a breach
constituting willful misfeasance, bad faith or negligence of the Trustee or any
co-trustee in the performance of its duties hereunder or by reason of reckless
disregard of its obligations and duties hereunder. The provisions of this
Section 8.05 shall survive the termination of this Agreement.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a
national banking association organized and doing business under the laws of any
state or the United States of America or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. In addition, the Trustee shall at all times be
acceptable to the Rating Agency rating the Certificates. If such corporation
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
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07. The corporation or national banking association serving as
Trustee may have normal banking and trust relationships with the Seller and its
affiliates or the Master Servicer and its affiliates; provided, however, that
such corporation cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
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SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving notice thereof to the Depositor, the Master Servicer
and to all Certificateholders; provided, that such resignation shall not be
effective until a successor trustee is appointed and accepts appointment in
accordance with the following provisions. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a successor trustee who
meets the eligibility requirements of Section 8.06 by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Master Servicer by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 60
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; provided, however, that the resigning Trustee shall not resign and be
discharged from the trusts hereby created until such time as the Rating Agency
rating the Certificates approves the successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Master Servicer, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the rating of the long-term debt obligations of the Trustee is not acceptable to
the Rating Agency in respect of mortgage pass-through certificates having a
rating equal to the then current rating on the Certificates, then the Master
Servicer may remove the Trustee and appoint a successor trustee who meets the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Master Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Master Servicer
by the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
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SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Master Servicer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder, and
the Master Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Master Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and
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trusts as the Depositor and the Trustee may consider necessary or desirable. If
the Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of co-
trustee(s) or separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans
Subject to Section 9.02, the respective obligations and
responsibilities of the Depositor, the Master Servicer and the Trustee created
hereby (other than the obligations of the Master Servicer to the Trustee
pursuant to Section 8.05 and of the Master Servicer to provide for and the
Trustee to make payments to Certificateholders as hereafter set forth) shall
terminate upon payment to the Certificateholders of all amounts held by or on
behalf of the Trustee and required to be paid to them hereunder following the
earlier to occur of (i) the repurchase by the Master Servicer of all Mortgage
Loans and each REO Property in respect thereof remaining in the Trust Fund at a
price equal to (a) 100% of the unpaid principal balance of each Mortgage Loan
(other than one as to which a REO Property was acquired) on the day of
repurchase together with accrued interest on such unpaid principal balance at
the Net Mortgage Rate to the first day of the month in which the proceeds of
such repurchase are to be distributed, plus (b) the appraised value of any REO
Property (but not more than the unpaid principal balance of the related Mortgage
Loan, together with accrued interest on that balance at the Net Mortgage Rate to
the first day of the month of repurchase), less the good faith estimate of the
Master Servicer of liquidation expenses to be incurred in connection with its
disposal thereof, such appraisal to be conducted by an appraiser mutually agreed
upon by the Master Servicer and the Trustee; and (ii) the final payment or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund (or the disposition of all REO Property in respect
thereof); provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof. In the case of any
repurchase by the Master Servicer pursuant to clause (i), the Master Servicer
shall include in such repurchase price the amount of any Advances that will be
reimbursed to the Master Servicer pursuant to Section 3.11(iii) and the Master
Servicer shall exercise reasonable efforts to cooperate fully with the Trustee
in effecting such repurchase and the transfer of the Mortgage Loans and related
Mortgage Files and related records to the Master Servicer.
The right of the Master Servicer to repurchase all Mortgage Loans
pursuant to (i) above shall be conditioned upon the aggregate Stated Principal
Balance of such Mortgage Loans at the time of any such repurchase aggregating an
amount equal to or less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date. If such right is exercised, the Master
Servicer upon such repurchase shall provide to the Trustee, the certification
required by Section 3.16.
Notice of any termination, specifying the Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final
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distribution and cancellation, shall be given promptly by the Master Servicer by
letter to the Trustee and the Certificateholders mailed (a) in the event such
notice is given in connection with the Master Servicer's election to repurchase,
not earlier than the 15th day and not later than the 25th day of the month next
preceding the month of such final distribution or (b) otherwise during the month
of such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Certificate Registrar therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Certificate Registrar
therein specified. In the event such notice is given in connection with the
Master Servicer's election to repurchase, the Master Servicer shall deliver to
the Trustee for deposit in the Certificate Account on the Business Day
immediately preceding the Distribution Date specified in such notice an amount
equal to the above-described repurchase price payable out of its own funds.
Upon presentation and surrender of the Certificates by the Certificateholders,
the Trustee shall distribute to the Certificateholders (i) the amount otherwise
distributable on such Distribution Date, if not in connection with the Master
Servicer's election to repurchase, or (ii) if the Master Servicer elected to so
repurchase, an amount determined as follows: with respect to each Class A-1
Certificate, Class A-2 Certificate, Class P Certificate and Class B Certificate,
the outstanding Certificate Principal Balance thereof, plus one month's interest
thereon at the applicable Pass-Through Rate and any previously unpaid Accrued
Certificate Interest; with respect to each Class SA Certificate, Class SP
Certificates, one month's interest at the applicable Pass-Through Rate based
upon the related Notional Amount and any previously unpaid Accrued Certificate
Interest; with respect to each Class SB Certificate, the Outstanding Class SB
Unpaid Interest Amount for such Distribution Date plus one month's interest at
the applicable Pass-Through Rate based upon the Notional Amount and any
previously unpaid Accrued Certificate Interest; and with respect to each
Class R-II Certificate, the Percentage Interest evidenced thereby multiplied by
the difference, if any, between the above described repurchase price and the
aggregate amount to be distributed to the Class SA Certificateholders, Class SP
Certificateholders, the Class A-1 Certificateholders, the Class A-2
Certificateholders, Class P Certificateholders, the Class B Certificateholders
and the Class SB Certificateholders. Upon certification to the Trustee by a
Servicing Officer, following such final deposit, the Trustee shall promptly
release the Mortgage Files as directed by the Master Servicer for the remaining
Mortgage Loans, and the Trustee shall execute all assignments, endorsements and
other instruments required by the Master Servicer as being necessary to
effectuate such transfer.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the time specified
in the above-mentioned notice, the Trustee shall give a second notice to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within six months
after the second notice all of the Certificates shall not have been surrendered
for cancellation, the Trustee shall take reasonable steps as directed by the
Depositor, or appoint an agent to take reasonable steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other assets which
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remain subject hereto. If, within nine months after the second notice, all of
the Certificates shall not have been surrendered for cancellation, the Class R-
II Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto.
SECTION 9.02. Termination of REMIC II
REMIC II shall be terminated on the earlier of (a) the date on which
the final distribution in respect of the Certificates is made pursuant to
Section 9.01 and (b) the date on which it is deemed to receive the last deemed
distributions on the Uncertificated REMIC I Regular Interests and the last
distribution due on the Class SA, Class SP, Class A-1, Class A-2, Class B, Class
P, Class SB and Class R-II Certificates is made.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer repurchases the Mortgage Loans
as provided in Section 9.01, REMIC I and REMIC II shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer, at its own expense, obtains for the Trustee an Opinion of Counsel to
the effect that the failure of the Trust Fund to comply with the requirements of
this Section 9.02 will not (i) result in the imposition of taxes on the net
income derived from "prohibited transactions" of REMIC I or REMIC II as defined
in Section 860F of the Code or (ii) cause REMIC I or REMIC II to fail to qualify
as a REMIC under the REMIC Provisions at any time that any Certificates are
outstanding:
(i) The Trustee shall establish a 90-day liquidation period for
REMIC I and REMIC II and specify the first day of such period in a
statement attached to the REMIC I and REMIC II's final Tax Returns pursuant
to Treasury Regulation Section 1.860F-1. The Trustee shall satisfy all the
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder, as evidenced by an Opinion of Counsel obtained
at the expense of the Master Servicer;
(ii) During such 90-day liquidation period, and at or prior to
the time of making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R-II Certificates all
cash on hand (other than cash retained to meet claims), and REMIC I, REMIC
II and the Trust Fund shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for REMIC I and REMIC II, respectively, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall make an election on behalf of each of REMIC I
and REMIC II to treat each such REMIC as a REMIC under the Code and, if
necessary, under applicable state law. Such election will be made on Form 1066
or other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the Certificates are issued. For purposes of the REMIC election in respect of
REMIC II, the Class SA, Class SP, Class A-1, Class A-2, Class B, Class SB and
Class P Certificates shall be designated as the "regular interests" and the
Class R-II Certificates shall be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC election in respect of REMIC I,
the Uncertificated REMIC I Regular Interests X, Uncertificated REMIC I Regular
Interests Y and Uncertificated REMIC I Regular Interests Z shall be designated
as the "regular interests" and the Class R-I Certificates shall be designated as
the sole Class of "residual interests" in REMIC I. The Trustee shall not permit
the creation of any "interests" (within the meaning of Section 860G of the Code)
in REMIC II other than the interests represented by the REMIC II Certificates
and shall not permit the creation of any such "interests" in REMIC I other than
the interests represented by the Class R-I Certificates and the Uncertificated
REMIC I Regular Interests.
(b) The Closing Date is hereby designated as the Startup Day of both
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay out of its own funds, without any right of
reimbursement, any and all expenses relating to any tax audit of REMIC I or
REMIC II (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect thereto that involved the
Internal Revenue Service or state tax authorities), other than the expense of
obtaining any tax related Opinion of Counsel not obtained in connection with
such an audit and other than taxes, in either case except as specified herein;
provided, however, that if such audit resulted from the negligence of the Master
Servicer or the Depositor, then the Master Servicer or the Depositor, as the
case may be, shall pay such expenses. The Trustee shall hold a Class R-I and a
Class R-II Certificate representing a 0.01% Percentage Interest of all Class R-I
and Class R-II Certificates, respectively, and shall be designated as the "tax
matters person" of both REMIC I and REMIC II in the manner provided under
Treasury Regulations Section 1.860F-4(d) and Temporary Treasury Regulations
Section 301.6231(a)(7)-1T. The Trustee, as tax matters person, shall (i) act on
behalf of both REMIC I and REMIC II in relation to any tax matter or controversy
involving either REMIC I or REMIC II and (ii) represent both REMIC I and REMIC
II in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect to either such REMIC.
To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R-I or a Class R-II Certificate, hereby
irrevocably appoints and authorizes the Trustee to
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be its attorney-in-fact for purposes of signing any Tax Returns required to be
filed on behalf of REMIC I or XXXXX XX, respectively.
(d) The Trustee shall prepare or cause to be prepared, sign and file
all of the Tax Returns in respect of REMIC I and REMIC II, other than Tax
Returns required to be filed by the Master Servicer pursuant to Section 4.05.
The expenses of preparing and filing such returns shall be borne by the Trustee
without any right of reimbursement therefor.
(e) The Trustee shall perform on behalf of each of REMIC I and REMIC
II all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC Provisions or other such
compliance guidance, the Trustee shall provide (i) to any Transferor of a
Class R-I or Class R-II Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R-I or Class R-II
Certificate to any Person who is not a Permitted Transferee, (ii) to
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of REMIC I and REMIC
II. In addition, the Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Closing Date, all information or data
that the Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including, without limitation,
the price, yield, prepayment assumption and projected cash flow of the
Certificates.
(f) The Trustee shall take such action and shall cause the Trust Fund
created hereunder to take such action as shall be necessary to create or
maintain the status each of REMIC I and REMIC II as a REMIC under the REMIC
Provisions (and the Master Servicer shall assist it, to the extent reasonably
requested by it). The Trustee shall not take any action, cause the Trust Fund
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 REMIC I or REMIC II as a REMIC or (ii) result
in the imposition of a tax upon REMIC I or REMIC II (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an "Adverse REMIC Event") unless the Trustee received
an Opinion of Counsel (at the expense of the party seeking to take such action
but in no event shall such Opinion of Counsel be an expense of the Trustee) to
the effect that the contemplated action will not, with respect to REMIC I and
REMIC II, endanger such status or result in the imposition of such a tax. The
Master Servicer shall not take or fail to take any action (whether or not
authorized hereunder) as to which the Trustee has advised it in writing that it
has received an Opinion of Counsel (which such Opinion of Counsel shall not be
an expense of the Trustee) to the effect that an Adverse REMIC Event could occur
with respect to such action. In addition, prior to taking any action with
respect to the Trust Fund or its assets, or causing the Trust Fund to take any
action which is not expressly permitted under the terms
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of this Agreement, the Master Servicer 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 REMIC I or REMIC II, and the Master
Servicer shall not take any such action or cause the Trust Fund to take any such
action as to which the Trustee has advised it in writing that an Adverse REMIC
Event could occur. The Trustee may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not permitted by this Agreement (but in no event shall such cost be an
expense of the Trustee). At all times as may be required by the Code, the
Trustee will ensure that substantially all of the assets of the Trust Fund will
consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of I or REMIC II as defined in Section 860F(a)(2) of the Code, on "net income
from foreclosure property" of REMIC I or REMIC II as defined in Section 860G(c)
of the Code, on any contributions to REMIC I or REMIC II after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed by
the Code or any applicable provisions of state or local tax laws, such tax shall
be charged (i) to the Trustee pursuant to Section 10.03 hereof, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, (ii) to the Master Servicer pursuant to Section 10.03
hereof, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under Article III or this Article X, or
otherwise (iii) against amounts on deposit in the Certificate Account and shall
be paid by withdrawal therefrom.
(h) On or before April 15 of each calendar year, commencing April 15,
1996, the Trustee shall deliver to the Master Servicer and each Rating Agency a
Certificate from a Responsible Officer of the Trustee stating the Trustee's
compliance with this Article X.
(i) The Master Servicer and the Trustee shall, for federal income tax
purposes, maintain books and records with respect to REMIC I and REMIC II on a
calendar year and on an accrual basis.
(j) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Trust Fund unless it shall have received an
Opinion of Counsel (which such Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund) to the effect that the inclusion of such assets in
the Trust Fund will not cause REMIC I or REMIC II to fail to qualify as a REMIC
at any time that any Certificates are outstanding or subject REMIC I or REMIC II
to any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which the Trust Fund will receive a fee or other compensation for
services nor permit the Trust Fund to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
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(l) Solely for purposes of satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest possible maturity date" by which the
Certificate Principal Balance of each Class of Certificates and the
Uncertificated Principal Balance of each Uncertificated REMIC I Regular Interest
would be reduced to zero is December 25, 2025, which is the Distribution Date
immediately following the latest scheduled maturity of any Mortgage Loan.
SECTION 10.02. Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of or substitute for any of the Mortgage Loans, except in connection
with (i) the foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the termination of the
Trust Fund pursuant to Article IX of this Agreement, or (iv) a purchase of
Mortgage Loans pursuant to Article II or III of this Agreement nor acquire any
assets for the Trust Fund, nor sell or dispose of any investments in the
Custodial Account, the Excess Proceeds Account or the Certificate Account for
gain, nor accept any contributions to the Trust Fund after the Closing Date
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, substitution or acquisition but in no
event shall such Opinion of Counsel be an expense of the Trustee) that such
sale, disposition, substitution or acquisition will not (a) affect adversely the
status of REMIC I or REMIC II as a REMIC or (b) cause REMIC I or REMIC II to be
subject to a tax on "prohibited transactions" or "contributions" pursuant to the
REMIC Provisions.
SECTION 10.03. Master Servicer and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor and
the Master Servicer for any taxes and costs including, without limitation, any
reasonable attorneys' fees imposed on or incurred by REMIC I, REMIC II, the
Depositor or the Master Servicer, as a result of a breach of the Trustee's
covenants set forth in this Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by REMIC I,
REMIC II, the Depositor or the Trustee, as a result of a breach of the Master
Servicer's covenants set forth in this Article X or in Article III with respect
to compliance with the REMIC Provisions, including without limitation, any
penalties arising from the Trustee's execution of Tax Returns prepared by the
Master Servicer that contain errors or omissions.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be defective or inconsistent with any other
provisions herein, (iii) to amend this Agreement in any respect subject to the
provisions below, or (iv) if such amendment, as evidenced by an Opinion of
Counsel (provided by the Person requesting such amendment) delivered to the
Trustee, is reasonably necessary to comply with any requirements imposed by the
Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to the
Trust Fund at least from the effective date of such amendment; provided that
such action (except any amendment described in (iv) above) shall not, as
evidenced by an Opinion of Counsel (provided by the Person requesting such
amendment) delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder (other than Certificateholders who shall
consent to such amendment).
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Voting Rights 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 of Certificates; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66-2/3%
of the Voting Rights of such Class, or (iii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Seller or the Master Servicer or any affiliate
thereof shall be entitled to Voting Rights with respect to matters described in
(i), (ii) and (iii) of this paragraph.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (provided by the Person requesting such
amendment) to the effect that such amendment will not result in the imposition
of any tax on either REMIC I or REMIC II pursuant to the
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REMIC Provisions or cause either REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any of the Certificates are outstanding.
Promptly after the execution of any such amendment the Trustee shall
furnish a statement describing the amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Prior to executing any amendment pursuant to this Section, the Trustee
shall be entitled to receive an Opinion of Counsel (provided by the Person
requesting such amendment) to the effect that such amendment is authorized or
permitted by this Agreement. The cost of an Opinion of Counsel delivered
pursuant to this Section 11.01 shall be an expense of the party requesting such
amendment, but in any case shall not be an expense of the Trustee.
The Trustee may, but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at the expense of the Depositor on direction by the Trustee,
but only upon direction accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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No Certificateholder shall have any right to vote (except as expressly
provided for herein) 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 party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a notice of an Event of Default, or
of a default by the Seller or the Trustee in the performance of any obligation
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates entitled to at least 25% of the Voting Rights
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and 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 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 equal,
ratable and common 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 11.04. Governing Law.
This Agreement and the Certificates 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 11.05. Notices.
All demands, notices and direction hereunder shall be in writing and
shall be deemed effective upon receipt when delivered to (a) in the case of the
Depositor, 000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: N.
Xxxxx XxXxxxx, or such other address as may hereafter be furnished to the
Trustee and the Master Servicer in writing by the Depositor, (b) in the case of
the Trustee, Four Albany Street, New York, New York 10006, Attention:
DLJ/Quality Series 1995-Q7, or such other address as may hereafter be furnished
to the Master Servicer and the Depositor in writing by the Trustee, (c) in the
case of the Master
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Servicer, Temple-Inland Mortgage Corporation, 000 Xxxxxxxx Xxxxxx #000, Xxxxxx,
Xxxxx 00000 Attention: Xxxxxxx Xxxxx, or such other address as may hereafter be
furnished to the Depositor and the Trustee in writing and (d) in the case of the
Seller, Quality Mortgage USA, Inc., 00000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx
00000, Attention: President, or such other address as may hereafter be
furnished to the Trustee, the Master Servicer and the Depositor in writing. Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice.
SECTION 11.06. 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 11.07. Successors and Assigns; Third Party Beneficiary.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Trustee and the
Certificateholders. The parties hereto agree that the Seller is the intended
third party beneficiary of Sections 3.07, 3.10 and 3.22 hereof, and that the
Seller may enforce such provisions to the same extent as if the Seller were a
party to this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notice to Rating Agencies and Certificateholder.
The Trustee shall use its best efforts to promptly provide notice to
the Rating Agency referred to below with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee;
4. The repurchase of Mortgage Loans pursuant to Section 2.03;
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5. The final payment to Certificateholders; and
6. Any change in the location of the Custodial Account, the Excess
Proceeds Account or the Certificate Account.
In addition, the Trustee shall promptly furnish to the Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.02; and
2. Each annual independent public accountants' servicing report
described in Section 3.20.
Any such notice pursuant to this Section 11.09 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to (i) in the
case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Pass-Through Monitoring or (ii) in the case of
Duff & Xxxxxx Credit Rating Co., 00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: MBS Monitoring, or such other address as either
Rating Agency may designate in writing to the parties thereto.
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized all as of the day and year first above written.
DLJ MORTGAGE ACCEPTANCE CORP.,
Depositor
By: X. Xxxxx XxXxxxx
Senior Vice President
TEMPLE-INLAND MORTGAGE CORPORATION,
Master Servicer
By: Xxx X. Xxxx
Executive Vice President,
Chief Financial Officer and Treasurer
BANKERS TRUST COMPANY,
Trustee
By: Xxxxxxxx Xxxxxxx
Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November, 1995 before me, a notary public in and
for said State, personally appeared X. Xxxxx XxXxxxx, known to me to be a Senior
Vice President of DLJ Mortgage Acceptance Corp., a corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
XXXXXX X. XXXXXXXX
Notary Public, State of New York
No. 02-BU5017342
Qualified in Nassau County
Commission Expires Aug. 30, 1997
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF XXXXXX )
On the 21st day of November, 1995 before me, a notary public in and
for said State, personally appeared Xxx X. Xxxx, known to me to be the Executive
Vice President, Chief Financial Officer and Treasurer of Temple-Inland Mortgage
Corporation, and also known to me to be the person who executed the within
instrument as a duly authorized officer of said corporation on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
XXXXXX X. XXXX
Notary Public
State of Texas
My Comm. Exp. 10-17-98
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November, 1995, before me, a notary public in and
for said State, personally appeared Xxxxxxxx Xxxxxxx, known to me to be an
Assistant Vice President of Bankers Trust Company, a corporation that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
XXXXXX X. XXXXXXXX
Notary Public, State of New York
No. 02-BU5017342
Qualified in Nassau County
Commission Expires Aug. 30, 1997
[Notarial Seal]
Q7 EXHIBITS EXHIBIT A
FORM OF SENIOR CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
[THIS CLASS [SP][P] CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.]
[THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO THE CLASS SA CERTIFICATES, THE
CLASS SP CERTIFICATES, THE CLASS P CERTIFICATES AND THE CLASS A-1 CERTIFICATES
OF THE SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT.]
[NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM UNTIL THE
27TH DUE DATE AFTER THE CUT-OFF DATE (EACH AS DEFINED HEREIN) AND __% PER ANNUM
THEREAFTER (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN
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$____ OF OID PER [$100,000] [$1,000] OF INITIAL [NOTIONAL AMOUNT] [CERTIFICATE
PRINCIPAL BALANCE], THE YIELD TO MATURITY IS ___ AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $___ PER [$100,000]
[$1,000] OF INITIAL [NOTIONAL AMOUNT] [CERTIFICATE PRINCIPAL BALANCE], COMPUTED
USING THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT RATES BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.]
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Series 1995-Q7 Aggregate Initial [Notional Amount]
[Certificate Principal Balance] of the Class
[SA][SP][P][A-1][A-2] Certificates: _________
Class [SA][SP][P][A-1][A-2] Initial [Notional Amount] [Certificate
Principal Balance]
of this Certificate: $_________________
[Variable][Adjustable] Initial Pass-Through Rate: __________
Pass-Through Rate
Date of Pooling and Servicing Percentage Interest Evidenced
Agreement and Cut-off Date: by this Certificate: _________%
November 1, 1995
First Distribution Date: Issue Date:
December 26, 1995 November 21, 1995
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: _________________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1995-Q7, CLASS [SA][SP][P][A-1][A-2]
evidencing a beneficial ownership interest in a trust fund
consisting primarily of a pool of adjustable rate
residential first mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that ___________________________ is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all of the Class [SA][SP][P][A-1][A-2]
Certificates in the Trust Fund (as defined herein) established under a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among DLJ
Mortgage Acceptance Corp. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Temple-Inland Mortgage
Corporation (the "Master Servicer") and Bankers Trust Company (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Percentage Interest evidenced hereby is equal to the initial [Notional
Amount] [Certificate Principal Balance] of this Certificate divided by the
aggregate initial [Notional Amount] [Certificate Principal Balance] of all of
the Class [SA][SP][P][A-1][A-2] Certificates as specified above. The
Certificates of the Series specified above (collectively, the "Certificates")
evidence in the aggregate the entire beneficial ownership
-4-
interest in a segregated pool of assets created pursuant to the Agreement
comprised of conventional one- to four-family residential first mortgage loans
(the "Mortgage Loans"), or interests therein, and certain other assets as
described herein. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the 25th
day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Distribution Amount an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class [SA][SP][P][A-1][A-2] Certificates on such
Distribution Date pursuant to the Agreement. [The Notional Amount of the Class
[SA][SP][SB] Certificates as of any date of determination will be determined
pursuant to the Agreement. The Class [SA][SP]][SB] Certificates have no
Certificate Principal Balance.] Reference is hereby made to the further
provisions of this Certificate and the Agreement set forth herein, which further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
All distributions will be made or caused to be made by the Trustee
either by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register or (ii) at the request
of the Person entitled thereto if such Person shall have so notified the Trustee
in writing by 5 Business Days prior to the applicable Record Date and such
Certificateholder is the registered holder of Certificates the aggregate Initial
Certificate Principal Balance of which is not less than $2,500,000 (or, with
respect to the Class SA Certificates, the Class SP Certificates and the Class SB
Certificates, is the registered holder of an aggregate initial Notional Amount
of not less than $10,000,000 of the Class SA Certificates, the Class SP
Certificates or the Class SB Certificates), in immediately available funds by
wire transfer to the account of such Person. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Master Servicer of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office of the Trustee. [The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and the principal portions of any Realized
Losses allocable hereto.]
This Certificate is one of a duly authorized issue of Certificates of
the series and class specified on the face hereof. The Certificates in the
aggregate represent the entire beneficial ownership interest in: (i) the
Mortgage Loans (exclusive of payments of principal and interest due on or before
the Cut-off Date) as from time to time are subject to the Agreement and all
payments under and proceeds of the Mortgage Loans, together with all documents
included in the related Mortgage File; (ii) such funds or assets as from time to
time are deposited in the Custodial Account, the Excess Proceeds Account or the
Certificate Account; (iii) any REO Property; (iv) the Primary Hazard Insurance
Policies, if any, and all other insurance
-5-
policies with respect to the Mortgage Loans required to be maintained pursuant
to the Agreement; and (v) the Depositor's interest in respect of the
representations and warranties made by the Seller in each Mortgage Loan Purchase
Agreement and the Seller's Warranty Certificate (all of the foregoing being
hereinafter collectively called the "Trust Fund").
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Master Servicer, the Trustee or any Sub-Servicer and are not
insured or guaranteed by any governmental agency or instrumentality or by any
other person or entity. The Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial [Notional Amount] [Certificate Principal Balance] will be issued to the
designated transferee or transferees.
[No transfer of any Class [SP] [P] this Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act"), and effective
registration or qualification under applicable state securities laws, or is made
in a transaction which does not require such registration or qualification. In
the event that a transfer is to be made without such registration or
qualification, (a) the Trustee and the Depositor shall require the transferee to
execute an investment letter in substantially the form attached as either
Exhibit G-1 or Exhibit H, as applicable, to the Agreement, which investment
letter shall not be an expense of the Depositor, the Master Servicer or the
Trustee and (b) in the event that such a transfer is not being made pursuant to
Rule 144A under the 1933 Act, the Depositor may direct the Trustee to require an
Opinion of
-6-
Counsel satisfactory to the Depositor and the Trustee that such transfer may be
made without such registration or qualification, which Opinion of Counsel shall
not be an expense of the Depositor, the Trustee or the Master Servicer. Neither
the Depositor nor the Trustee is obligated to register or qualify any of the
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.]
[No transfer of any Class A-2 Certificate shall be made to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and Xxxxx plans, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"),
to any Person acting on behalf of a Plan, or to any other person who is using
"plan assets" to effect such acquisition (including any insurance company using
funds in its general or separate accounts that may constitute "plan assets"),
unless the prospective transferee of a Certificateholder desiring to transfer
its Certificates provides to the Trustee or the Certificate Registrar an Opinion
of Counsel (or, in the limited circumstances described in the Agreement, a
certification of facts) which establishes to the satisfaction of the Depositor
and the Trustee or the Certificate Registrar that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended. In the case of
any transfer of the foregoing Certificates to an insurance company, in lieu of
such Opinion of Counsel, the Trustee shall require a certification in the form
of Exhibit G-5 to the Agreement.]
The Certificates are issuable in fully registered form only, without
coupons, and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate initial [Notional Amount]
[Certificate Principal Balance], as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any agent of
the Depositor, the Master Servicer or the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Master Servicer, the Trustee nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the purchase by the Master Servicer
of all Mortgage Loans and each REO Property in respect thereof, or (ii) the
final payment on, or other liquidation (or any advance with respect thereto)
-7-
of, the last Mortgage Loan remaining in the Trust Fund (or the disposition of
all REO Property in respect thereof). The Agreement permits, but does not
require, the Master Servicer to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price determined
as provided in the Agreement. The exercise of the Master Servicer's right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Loans at the
time of purchase being less than or equal to 5% of the aggregate Stated
Principal Balance of the Mortgage Loans at the Cut-off Date.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be.
IN WITNESS WHEREOF, the Trustee in its capacity as trustee under the
Agreement has caused this Certificate to be duly executed.
Dated: November 21, 1995 BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [SA][SP][P][A-1][A-2] Certificates referred
to in the within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
------------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class [SA][SP][P][A-1][A-2]
Certificate and hereby authorizes the registration of transfer of such interest
to the above-named assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class [SA][SP][P][A-1][A-
2] Certificate of a like initial [Notional Amount] [Certificate Principal
Balance] to the above-named assignee and deliver such Certificate to the
following address:
______________________________________________________________________________
______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
_______________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of _______________________________, account number ____________,
or, if mailed by check, to ___________________________. Applicable statements
should be mailed to ___________________________________. This information is
provided by _____________________________________, the assignee named above, or
____________________________, as its agent.
EXHIBIT B-1
FORM OF CLASS B CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
THIS CLASS B CERTIFICATE IS SUBORDINATE TO THE CLASS SA CERTIFICATES, THE CLASS
SP CERTIFICATES, THE CLASS P CERTIFICATES, THE CLASS A-1 CERTIFICATES AND THE
CLASS A-2 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM UNTIL THE
27TH DUE DATE AFTER THE CUT-OFF DATE (EACH AS DEFINED HEREIN) AND __% PER ANNUM
THEREAFTER (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $___ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ___ % AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED USING THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT RATES BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE.]
Series 1995-Q7 Aggregate Certificate Principal Balance of
the Class B Certificates: $______
Class B Initial Certificate Principal Balance of this
Certificate: $_______
Adjustable Pass-Through Initial Pass-Through Rate: __%
Rate
Date of Pooling and Servicing Percentage Interest Evidenced
Agreement and Cut-off Date: by this Certificate: _________%
November 1, 1995
First Distribution Date: Issue Date:
December 26, 1995 November 21, 1995
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: __________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1995-Q7, CLASS B
evidencing a beneficial ownership interest in a trust fund consisting
primarily of a pool of adjustable rate residential first mortgage
loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that _________________________ is the registered owner
of the Percentage Interest specified above in that certain beneficial ownership
interest evidenced by all of the Class B Certificates in the Trust Fund (as
defined herein) established under a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among DLJ Mortgage Acceptance Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), Temple-Inland Mortgage Corporation (the "Master Servicer")
and Bankers Trust Company (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. The Percentage Interest evidenced
hereby is equal to the initial Certificate Principal Balance of this Certificate
divided by the aggregate initial Certificate Principal Balance of all of the
Class B Certificates as specified above. The Certificates of the Series
specified above (collectively, the "Certificates") evidence in the aggregate the
entire beneficial ownership interest in a segregated pool of assets created
pursuant to the Agreement comprised of conventional one- to four-family
residential first mortgage loans (the "Mortgage Loans"), or interests therein,
and certain other assets as described herein. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the
-2-
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the 25th
day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Distribution Amount an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class B Certificates on such Distribution Date
pursuant to the Agreement. Reference is hereby made to the further provisions
of this Certificate and the Agreement set forth herein, which further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
All distributions will be made or caused to be made by the Trustee
either (i) by check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register or (ii) at the
request of the Person entitled thereto if such Person shall have so notified the
Trustee in writing by 5 Business Days prior to the applicable Record Date and
such Certificateholder is the registered holder of Certificates the aggregate
Initial Certificate Principal Balance of which is not less than $2,500,000 (or,
with respect to the Class SA Certificates, the Class SP Certificates and the
Class SB Certificates, is the registered holder of an aggregate initial Notional
Amount of not less than $10,000,000 of the Class SA Certificates, the Class SP
Certificates or the Class SB Certificates), in immediately available funds by
wire transfer to the account of such Person. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Master Servicer of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office of the Trustee. The Certificate
Principal Balance hereof will be reduced to the extent of distributions
allocable to principal and the principal portions of any Realized Losses
allocable hereto.
This Certificate is one of a duly authorized issue of Certificates of
the series and class specified on the face hereof. The Certificates in the
aggregate represent the entire beneficial ownership interest in: (i) the
Mortgage Loans (exclusive of payments of principal and interest due on or before
the Cut-off Date) as from time to time are subject to the Agreement and all
payments under and proceeds of the Mortgage Loans, together with all documents
included in the related Mortgage File; (ii) such funds or assets as from time to
time are deposited in the Custodial Account, the Excess Proceeds Account or the
Certificate Account; (iii) any REO Property; (iv) the Primary Hazard Insurance
Policies, if any, and all other insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to the Agreement; and (v) the
Depositor's interest in respect of the representations and warranties made by
the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Master Servicer, the Trustee or any Sub-Servicer and are not
insured or guaranteed by any
-3-
governmental agency or instrumentality or by any other person or entity. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Custodial Account or the Certificate Account may be made by the Master Servicer
from time to time for purposes other than distributions to Certificateholders,
such purposes including reimbursement to the Master Servicer of advances made,
or certain expenses incurred, by it, by the Depositor, by the Trustee or by any
Sub-Servicer.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial Certificate Principal Balance will be issued to the designated
transferee or transferees.
No transfer of any Class B Certificate shall be made to any employee
benefit plan or other retirement arrangement, including individual retirement
accounts and Xxxxx plans, that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"), to any
Person acting on behalf of a Plan, or to any other person who is using "plan
assets" to effect such acquisition (including any insurance company using funds
in its general or separate accounts that may constitute "plan assets"), unless
the prospective transferee of a Certificateholder desiring to transfer its
Certificates provides to the Trustee or the Certificate Registrar an Opinion of
Counsel (or, in the limited circumstances described in the Agreement, a
certification of facts) which establishes to the satisfaction of the Depositor
and the Trustee or the Certificate Registrar that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended. In the case of
any transfer of the foregoing Certificates to an insurance company, in lieu of
such Opinion of Counsel, the Trustee shall require a certification in the form
of Exhibit G-5 to the Agreement.
The Certificates are issuable in fully registered form only, without
coupons, and in denominations specified in the Agreement. As provided in the
Agreement and subject to
-4-
certain limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate initial Certificate Principal Balance, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any agent of
the Depositor, the Master Servicer or the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Master Servicer, the Trustee nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the purchase by the Master Servicer
of all Mortgage Loans and each REO Property in respect thereof, or (ii) the
final payment on, or other liquidation (or any advance with respect thereto) of,
the last Mortgage Loan remaining in the Trust Fund (or the disposition of all
REO Property in respect thereof). The Agreement permits, but does not require,
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and all
property acquired in respect of any Mortgage Loan at a price determined as
provided in the Agreement. The exercise of the Master Servicer's right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Loans at the
time of purchase being less than or equal to 5% of the aggregate Stated
Principal Balance of the Mortgage Loans at the Cut-off Date.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be.
IN WITNESS WHEREOF, the Trustee in its capacity as trustee under the
Agreement has caused this Certificate to be duly executed.
Dated: November 21, 1995
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class B Certificate and hereby
authorizes the registration of transfer of such interest to the above-named
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class B Certificate of a
like initial Certificate Principal Balance to the above-named assignee and
deliver such Certificate to the following address:______________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ____________________________________________, account number
___________________________________, or, if mailed by check, to _______________
____________________. Applicable statements should be mailed to ______________
____________________________________. This information is provided by ________
_______________________, the assignee named above, or _________________________,
as its agent.
EXHIBIT B-2
FORM OF CLASS SB CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
THIS CLASS SB CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
THIS CLASS SB CERTIFICATE IS SUBORDINATE TO THE CLASS SA CERTIFICATES, THE CLASS
SP CERTIFICATES, THE CLASS P CERTIFICATES, THE CLASS A-1 CERTIFICATES, THE CLASS
A-2 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED HEREIN AND IN THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM UNTIL THE
27TH DUE DATE AFTER THE CUT-OFF DATE (EACH AS DEFINED HEREIN) AND __% PER ANNUM
THEREAFTER (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN
-2-
$____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO
MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
COMPUTED USING THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT RATES BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.]
-3-
Series 1995-Q7 Aggregate Certificate Principal Balance of
the Class SB Certificates: _______
Class SB Initial Certificate Principal Balance of this
Certificate: $_______________
Adjustable Pass-Through Rate Initial Pass-Through Rate: ______
Date of Pooling and Servicing Percentage Interest Evidenced
Agreement and Cut-off Date: by this Certificate: _________%
November 1, 1995
First Distribution Date: Issue Date:
December 26, 1995 November 21, 1995
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: ____
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1995-Q7, CLASS SB
evidencing a beneficial ownership interest in a trust fund consisting
primarily of a pool of adjustable rate residential first mortgage
loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that _________________________ is the registered owner
of the Percentage Interest specified above in that certain beneficial ownership
interest evidenced by all of the Class SB Certificates in the Trust Fund (as
defined herein) established under a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among DLJ Mortgage Acceptance Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), Temple-Inland Mortgage Corporation (the "Master Servicer")
and Bankers Trust Company (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. The Percentage Interest evidenced
hereby is equal to the initial Certificate Principal Balance of this Certificate
divided by the aggregate initial Certificate Principal Balance of all of the
Class SB Certificates as specified above. The Certificates of the Series
specified above (collectively, the "Certificates") evidence in the aggregate the
entire beneficial ownership interest in a segregated pool of assets created
pursuant to the Agreement comprised of conventional one- to four-family
residential first mortgage loans (the "Mortgage
-4-
Loans") or interests therein, and certain other assets as described herein. To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the 25th
day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Distribution Amount an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class SB Certificates on such Distribution Date
pursuant to the Agreement. Reference is hereby made to the further provisions
of this Certificate and the Agreement set forth herein, which further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
All distributions will be made or caused to be made by the Trustee
either (i) by check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register or (ii) at the
request of the Person entitled thereto if such Person shall have so notified the
Trustee in writing by 5 Business Days prior to the applicable Record Date and
such Certificateholder is the registered holder of Certificates the aggregate
Initial Certificate Principal Balance of which is not less than $2,500,000 (or,
with respect to the Class SA Certificates, the Class SP Certificates and the
Class SB Certificates, is the registered holder of an aggregate initial Notional
Amount of not less than $10,000,000 of the Class SA Certificates, the Class SP
Certificates or the Class SB Certificates), in immediately available funds by
wire transfer to the account of such Person. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Master Servicer of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office of the Trustee. The Certificate
Principal Balance hereof will be reduced to the extent of distributions
allocable to principal and the principal portions of any Realized Losses
allocable hereto.
This Certificate is one of a duly authorized issue of Certificates of
the series and class specified on the face hereof. The Certificates in the
aggregate represent the entire beneficial ownership interest in: (i) the
Mortgage Loans (exclusive of payments of principal and interest due on or before
the Cut-off Date) as from time to time are subject to the Agreement and all
payments under and proceeds of the Mortgage Loans, together with all documents
included in the related Mortgage File; (ii) such funds or assets as from time to
time are deposited in the Custodial Account, the Excess Proceeds Account or the
Certificate Account; (iii) any REO Property; (iv) the Primary Hazard Insurance
Policies, if any, and all other insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to the Agreement; and (v) the
Depositor's interest in respect of the representations and warranties made by
the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
-5-
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Master Servicer, the Trustee or any Sub-Servicer and are not
insured or guaranteed by any governmental agency or instrumentality or by any
other person or entity. The Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial Certificate Principal Balance will be issued to the designated
transferee or transferees.
No transfer of any Class SB Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In the
event that a transfer is to be made without such registration or qualification,
(a) the Trustee and the Depositor shall require the transferee to execute an
investment letter in substantially the form attached as either Exhibit G-1 or
Exhibit H, as applicable, to the Agreement, which investment letter shall not be
an expense of the Depositor, the Master Servicer or the Trustee and (b) in the
event that such a transfer is not being made pursuant to Rule 144A under the
1933 Act, the Depositor may direct the Trustee to require an Opinion of Counsel
satisfactory to the Depositor and the Trustee that such transfer may be made
without such registration or qualification, which Opinion of Counsel shall not
be an expense of the Depositor, the Trustee or the Master Servicer. Neither the
Depositor nor the Trustee is obligated to register or qualify any of the
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification.
-6-
Any such Certificateholder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee and the Master Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of any Class SB Certificate shall be made to any employee
benefit plan or other retirement arrangement, including individual retirement
accounts and Xxxxx plans, that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"), to any
Person acting on behalf of a Plan, or to any other person who is using "plan
assets" to effect such acquisition (including any insurance company using funds
in its general or separate accounts that may constitute "plan assets"), unless
the prospective transferee of a Certificateholder desiring to transfer its
Certificates provides to the Trustee or the Certificate Registrar an Opinion of
Counsel (or, in the limited circumstances described in the Agreement, a
certification of facts) which establishes to the satisfaction of the Depositor
and the Trustee or the Certificate Registrar that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended. In the case of
any transfer of the foregoing Certificates to an insurance company, in lieu of
such Opinion of Counsel, the Trustee shall require a certification in the form
of Exhibit G-5 to the Agreement.
The Certificates are issuable in fully registered form only, without
coupons, and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate initial Certificate Principal
Balance, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any agent of
the Depositor, the Master Servicer or the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Master Servicer, the Trustee nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the purchase by the Master Servicer
of all Mortgage Loans and each REO Property in respect thereof, or (ii) the
final payment on, or other liquidation (or any advance with respect thereto) of,
the last Mortgage Loan remaining in the Trust Fund (or the disposition of all
REO Property in respect thereof). The Agreement permits, but does not require,
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and all
property acquired in respect of any Mortgage Loan at a price determined as
provided in the Agreement. The exercise of the Master Servicer's right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Loans at the
time of
-7-
purchase being less than or equal to 5% of the aggregate Stated Principal
Balance of the Mortgage Loans at the Cut-off Date.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be.
IN WITNESS WHEREOF, the Trustee in its capacity as trustee under the
Agreement has caused this Certificate to be duly executed.
Dated: November 21, 1995
BANKERS TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class SB Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class SB Certificate and hereby
authorizes the registration of transfer of such interest to the above-named
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class SB Certificate of a
like initial Certificate Principal Balance to the above-named assignee and
deliver such Certificate to the following address: ____________________________
_______________________________________________________________________________
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds _______________________________________________________________
_______________________________________________________________________________
for the account of __________________________, account number__________________,
or, if mailed by check, to ____________________________. Applicable statements
should be mailed to ______________________________________. This information is
provided by ___________________________, the assignee named above, or _________
______________________________, as its agent.
EXHIBIT B-4
FORM OF CLASS [R-I][R-II] CERTIFICATE
THIS CERTIFICATE HAS BEEN DESIGNATED BY THE DEPOSITOR REFERRED TO BELOW AS A
"RESIDUAL INTEREST" IN ONE OF THE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS"
CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN
(THE "AGREEMENT") PURSUANT TO THE RELATED PROVISIONS OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE").
THIS CLASS [R-I][R-II] CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS SA CERTIFICATES, THE CLASS SP
CERTIFICATES, THE CLASS P CERTIFICATES, THE CLASS A-1 CERTIFICATES, THE CLASS A-
2 CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS SB CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
THIS CERTIFICATE AND THE AGREEMENT MAY BE AMENDED WITHOUT THE CONSENT OF THE
HOLDER HEREOF, AND IN A MANNER THAT MAY ADVERSELY AFFECT THE INTERESTS OF THE
HOLDER HEREOF, IF NECESSARY TO PREVENT THE DISQUALIFICATION OF THE TRUST FUND AS
A REMIC.
-2-
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES AN AFFIDAVIT TO THE MASTER SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR THE FEDERAL HOME LOAN MORTGAGE CORPORATION, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) A
RURAL ELECTRIC AND TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381(A)(2)(C) OF
THE CODE AND (E) ANY OTHER PERSON SO DESIGNATED BY THE TRUSTEE BASED ON AN
OPINION OF COUNSEL (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
OR (2) AN AGENT OF A DISQUALIFIED ORGANIZATION. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE,
BY ACCEPTANCE OF THIS CERTIFICATE, SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IF ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE IS MADE TO ANY
OF CERTAIN "PASS-THROUGH ENTITIES" DESCRIBED IN SECTION 860E(E)(6) OF THE CODE,
AND A DISQUALIFIED ORGANIZATION IS THE RECORD HOLDER OF AN INTEREST IN SUCH
ENTITY, THEN A TAX MAY BE IMPOSED ON SUCH ENTITY.
NO TRANSFER OF THE CERTIFICATE MAY BE MADE TO A PERSON THAT IS NOT A UNITED
STATES PERSON (AS DEFINED IN THE AGREEMENT).
-3-
Series 1995-Q7 Aggregate unpaid principal
balance of the Mortgage
Loans after deducting
payments due on or before
the Cut-off Date: $_____
Class [R-I][R-II] Percentage Interest Evidenced
by this Certificate: __%
Date of Pooling and Servicing Issue Date: November 21, 1995
Agreement and Cut-off Date:
November 1, 1995
Master Servicer: First Distribution Date:
Temple-Inland Mortgage December 26, 1995
Corporation
Trustee:
Bankers Trust Company
No. _____ CUSIP:
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1995-Q7, CLASS [R-I][R-II]
evidencing a residual interest with respect to a trust fund
consisting primarily of a pool of adjustable rate
residential first mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that _____________________________ is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all of the Class [R-I][R-II] Certificates in the
Trust Fund (as defined herein) established under a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among DLJ Mortgage
Acceptance Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Agreement), Temple-Inland Mortgage Corporation
(the "Master Servicer") and Bankers Trust Company (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. The
Certificates of the Series specified above (collectively, the "Certificates")
evidence in the aggregate the entire beneficial ownership interest in a
segregated pool of assets created pursuant to the Agreement comprised of
conventional one- to four-family residential first mortgage loans (the "Mortgage
Loans"), or interests therein, and certain other assets as described herein. To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
-4-
The Trustee shall distribute or cause to be distributed on the 25th
day of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), from
the Available Distribution Amount an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class [R-I][R-II] Certificates on such
Distribution Date pursuant to the Agreement. Reference is hereby made to the
further provisions of this Certificate and the Agreement set forth herein, which
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
All distributions will be made or caused to be made by the Trustee
either (i) by check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register or (ii) at the
request of the Person entitled thereto if such Person shall have so notified the
Trustee in writing by 5 Business Days prior to the applicable Record Date and
such Certificateholder is the registered holder of Certificates the aggregate
Initial Certificate Principal Balance of which is not less than $2,500,000 (or,
with respect to the Class SA Certificates, the Class SP Certificates and the
Class SB Certificates, is the registered holder of an aggregate initial Notional
Amount of not less than $10,000,000 of the Class SA Certificates, the Class SP
Certificates or the Class SB Certificates), in immediately available funds by
wire transfer to the account of such Person. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Master Servicer of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office of the Trustee.
This Certificate is one of a duly authorized issue of Certificates of
the series and class specified on the face hereof. The Certificates in the
aggregate represent the entire beneficial ownership interest in: (i) the
Mortgage Loans (exclusive of payments of principal and interest due on or before
the Cut-off Date) as from time to time are subject to the Agreement and all
payments under and proceeds of the Mortgage Loans, together with all documents
included in the related Mortgage File; (ii) such funds or assets as from time to
time are deposited in the Custodial Account, the Excess Proceeds Account or the
Certificate Account; (iii) any REO Property; (iv) the Primary Hazard Insurance
Policies, if any, and all other insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to the Agreement; and (v) the
Depositor's interest in respect of the representations and warranties made by
the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Master Servicer, the Trustee or any Sub-Servicer and are not
insured or guaranteed by any governmental agency or instrumentality or by any
other person or entity. The Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master
-5-
Servicer from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement to the Master Servicer
of advances made, or certain expenses incurred, by it, by the Depositor, by the
Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of any Class [R-I] [R-II] Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In the
event that a transfer is to be made without such registration or qualification,
(a) the Trustee shall require that the Certificateholder desiring to effect the
transfer and such Certificateholder's prospective transferee each certify to the
Trustee in writing the facts surrounding the transfer and (b) in the event that
such a transfer is not being made pursuant to Rule 144A under the 1933 Act, the
Depositor may direct the Trustee to require an Opinion of Counsel satisfactory
to the Depositor and the Trustee that such transfer may be made without such
registration or qualification, which Opinion of Counsel shall not be an expense
of the Depositor, the Trustee or the Master Servicer. Neither the Depositor nor
the Trustee is obligated to register or qualify any of the Certificates under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any such Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Depositor, the
Trustee and the Master Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of any Class [R-I][R-II] this Certificate shall be made to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and Xxxxx
-6-
plans, that is subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"; any of foregoing, a "Plan"), to any Person acting on behalf
of a Plan, or to any other person who is using "plan assets" to effect such
acquisition (including any insurance company using funds in its general or
separate accounts that may constitute "plan assets"), unless the prospective
transferee of a Certificateholder desiring to transfer its Certificates provides
to the Trustee or the Certificate Registrar an Opinion of Counsel (or, in the
limited circumstances described in the Agreement, a certification of facts)
which establishes to the satisfaction of the Depositor and the Trustee or the
Certificate Registrar that such disposition will not violate the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Internal
Revenue Code of 1986, as amended. In the case of any transfer of the foregoing
Certificates to an insurance company, in lieu of such Opinion of Counsel, the
Trustee shall require a certification in the form of Exhibit G-5 to the
Agreement.
The Certificates are issuable in fully registered form only, without
coupons, and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any agent of
the Depositor, the Master Servicer or the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Master Servicer, the Trustee nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the purchase by the Master Servicer
of all Mortgage Loans and each REO Property in respect thereof, or (ii) the
final payment on, or other liquidation (or any advance with respect thereto) of,
the last Mortgage Loan remaining in the Trust Fund (or the disposition of all
REO Property in respect thereof). The Agreement permits, but does not require,
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and all
property acquired in respect of any Mortgage Loan at a price determined as
provided in the Agreement. The exercise of the Master Servicer's right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Loans at the
time of purchase being less than or equal to 5% of the aggregate Stated
Principal Balance of the Mortgage Loans at the Cut-off Date.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
-7-
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be.
IN WITNESS WHEREOF, the Trustee in its capacity as trustee under the
Agreement has caused this Certificate to be duly executed.
Dated: November 21, 1995
BANKERS TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class [R-I] [R-II] Certificate
and hereby authorizes the registration of transfer of such interest to the
above-named assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class [R-I] [R-II]
Certificate of a like Percentage Interest to the above-named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ____________________________________________, account number
___________________, or, if mailed by check, to ______________________________.
Applicable statements should be mailed to _____________________________________
_________________________________. This information is provided by ___________
__________________________________, the assignee named above, or ______________
_________________________, as its agent.
EXHIBIT C
FORM OF TRUSTEE INITIAL CERTIFICATION
[Closing Date]
[Master Servicer]
[Depositor]
_________________________
_________________________
Re: Pooling and Servicing Agreement, dated as of November 1,
1995, among DLJ Mortgage Acceptance Corp., Temple-Inland
Mortgage Corporation and Bankers Trust Company, DLJ Mortgage
Acceptance Corp. Mortgage Pass-Through Certificates, Series
1995-Q7
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attachment hereto) it has reviewed the
Mortgage File and the Mortgage Loan Schedule and has determined that: (i) all
documents required to be included in the Mortgage File are in its possession;
(ii) such documents have been reviewed by it and appear regular on their face
and relate to such Mortgage Loan; and (iii) based on examination by it, and only
as to such documents, the information set forth in items (i) - (vi) and (x) -
(xiii) of the definition or description of "Mortgage Loan Schedule" is correct.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in clause (vi) of Section 2.01
should be included in any Mortgage File. The Trustee makes no representations
as to and shall not be responsible to verify: (i) the validity, legality,
sufficiency, enforceability, due authorization, recordability or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan, or
(iii) the existence of any assumption, modification, written assurance or
substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Trustee.
-2-
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY
By:__________________________________________
Name:________________________________________
Title:_______________________________________
EXHIBIT D
FORM OF TRUSTEE FINAL CERTIFICATION
[date]
[Master Servicer]
[Depositor]
__________________________
__________________________
Re: Pooling and Servicing Agreement, dated as of November 1,
1995 among DLJ Mortgage Acceptance Corp., Temple-Inland
Mortgage Corporation and Bankers Trust Company, DLJ Mortgage
Acceptance Corp. Mortgage Pass-Through Certificates, Series
1995-Q7
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attachment hereto) it has received the
documents set forth in Section 2.01.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in clause (vi) of Section 2.01
should be included in any Mortgage File. The Trustee makes no representations
as to and shall not be responsible to verify: (i) the validity, legality,
sufficiency, enforceability, due authorization, recordability or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or
(iii) the existence of any assumption, modification, written assurance or
substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Trustee.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY
By:__________________________________________
Name:________________________________________
Title:_______________________________________
EXHIBIT E
[RESERVED]
EXHIBIT F-1
REQUEST FOR RELEASE
(for Trustee)
LOAN INFORMATION
Name of Mortgagor: _____________________________
Master Servicer
Loan No.: _____________________________
TRUSTEE
Name: _____________________________
Address: _____________________________
_____________________________
Trustee
Mortgage File No.: _____________________________
REQUEST FOR REQUESTING DOCUMENTS (check one):
1. Mortgage Loan Liquidated.
(The Master Servicer hereby certifies that all proceeds of
foreclosure, insurance or other liquidation have been finally received
and deposited into the Custodial Account to the extent required
pursuant to the Pooling and Servicing Agreement.)
2. Mortgage Loan in Foreclosure.
3. Mortgage Loan Repurchased Pursuant to Section 9.01 of the Pooling and
Servicing Agreement.
4. Mortgage Loan Repurchased Pursuant to Article II of the Pooling and
Servicing Agreement.
(The Master Servicer hereby certifies that the repurchase price has
been deposited into the Custodial Account pursuant to the Pooling and
Servicing Agreement.)
5. Other (explain).
_______________________________________________________________________________
_______________________________________________________________________________
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_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
The undersigned Master Servicer hereby acknowledges that it has received
from _____________________________________, as Trustee for the Holders of
Mortgage Pass-Through Certificates, Series 1995-Q7, the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement, dated as of November 1, 1995 (the "Pooling and Servicing
Agreement"), among DLJ Mortgage Acceptance Corp., Temple-Inland Mortgage
Corporation and the Trustee.
( ) Promissory Note dated _______________, 19__, in the original principal sum
of $__________, made by _____________________, payable to, or endorsed to
the order of, the Trustee.
( ) Mortgage recorded on _____________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image _____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
___________________ as instrument no. _________ in the County Recorder's
Office of the County of __________, State of _______________ in
book/reel/docket ____________ of official records at page/image
____________.
( ) Other documents, including any amendments, assignments or other assumptions
of the Mortgage Note or Mortgage.
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Master Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Custodial Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in the Master Servicer's possession,
custody or control.
Temple-Inland Mortgage Corporation
By:_______________________________
Its:______________________________
Date: _____________________, 19__
EXHIBIT F-2
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1995-Q7
______________________________________ HEREBY CERTIFIES THAT HE/SHE IS AN
OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH BENEATH HIS/HER
SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN MADE.
LOAN NUMBER: _______________ XXXXXXXX'S NAME:_____________
COUNTY:_____________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE CUSTODIAL ACCOUNT PURSUANT TO SECTION
3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
___________ ______________________ DATED:______________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
EXHIBIT G-1
FORM OF INVESTOR REPRESENTATION LETTER
____________, 19___
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1995-Q7
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1995-Q7, Class __
Dear Sirs:
____________________________ (the "Purchaser") intends to
purchase from _________________________ (the "Seller") $____________ Initial
Certificate Principal Balance of Mortgage Pass-Through Certificates, Series
1995-Q7, Class ___ (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 1995 among DLJ Mortgage Acceptance Corp., as seller (the "Company"),
Temple-Inland Mortgage Corporation, as master servicer, and Bankers Trust
Company, as trustee (the "Trustee"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
1. The Purchaser understands that (a) the
Certificates have not been and will not be registered or
qualified under the Securities Act of 1933, as amended
(the "Act") or any state securities law, (b) the Company is
not required to so register or qualify the Certificates, (c)
the Certificates may be resold only if registered and
qualified pursuant to the provisions of the Act or any state
securities law, or if an exemption from such registration
and qualification is available, (d) the Pooling and
Servicing Agreement contains restrictions regarding the
transfer of the Certificates and (e) the Certificates will
bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for
its own account for investment only and not with a view to
or for sale in connection with any distribution thereof in
any manner that would violate the Act or any applicable
state securities laws.
-2-
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience
in financial and business matters, and, in particular, in
such matters related to securities similar to the
Certificates, such that it is capable of evaluating the
merits and risks of investment in the Certificates, (b) able
to bear the economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had
an opportunity to review [(a) a copy of the Private
Placement Memorandum dated November 21, 1995 relating to the
Certificates, (b)] a copy of the Pooling and Servicing
Agreement and [(b)] [(c)] such other information concerning
the Certificates, the Mortgage Loans and the Company as has
been requested by the Purchaser from the Company or the
Seller and is relevant to the Purchaser's decision to
purchase the Certificates. The Purchaser has had any
questions arising from such review answered by the Company
or the Seller to the satisfaction of the Purchaser. If the
Purchaser did not purchase the Certificates from the Seller
in connection with the initial distribution of the
Certificates and was provided with a copy of the Private
Placement Memorandum (the "Memorandum") relating to the
original sale (the "Original Sale") of the Certificates by
the Company, the Purchaser acknowledges that such Memorandum
was provided to it by the Seller, that the Memorandum was
prepared by the Company solely for use in connection with
the Original Sale and the Company did not participate in or
facilitate in any way the purchase of the Certificates by
the Purchaser from the Seller, and the Purchaser agrees that
it will look solely to the Seller and not to the Company
with respect to any damage, liability, claim or expense
arising out of, resulting from or in connection with (a)
error or omission, or alleged error or omission, contained
in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.
5. The Purchaser has not and will not, nor has it
authorized or will it authorize, any person to (a) offer,
pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit
any offer to buy or to accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate
or any other similar security from any person in any manner,
(c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) make any
general solicitation by means of general advertising or in
any other manner or (e) take any other action, that (as to
any of (a) through (e) above) would constitute a
distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise transfer
any of the Certificates, except in compliance with the
provisions of the Pooling and Servicing Agreement.
[6. *The Purchaser is not any employee benefit plan
subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the Internal Revenue Code of
1986, (the "Code"), nor a Person acting, directly or
indirectly, on behalf of any such plan, and understands that
registration of transfer of any Certificate to any such
employee benefit plan, or to any person acting on behalf of
such plan, will not be made unless such employee benefit
plan delivers an opinion of its counsel, addressed and
satisfactory to the Trustee, the Company and the Master
Servicer, to the effect that the purchase and holding of a
Certificate by or on behalf of such employee benefit plan
would not result in the assets of the Trust Estate being
deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA or the prohibited
transaction provisions of the Code (or comparable provisions
of any subsequent enactments), would not constitute or
result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code, and would not subject the
Company, the Master Servicer or the Trustee to any
obligation or liability (including liabilities under ERISA
or Section 4975 of the Code) in addition to those undertaken
in the Pooling and Servicing Agreement or any other
liability. The Purchaser understands that under current law
such an opinion cannot be rendered.]
Very truly yours,
___________________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
* In the case of a transfer of the Class A-2, Class B, Class SB, Class R-I
and Class R-II Certificates to an insurance company, the above paragraph 6
shall be deleted and a certification in the form of Exhibit G-5 shall be
executed.
EXHIBIT G-2
Form of Transferor Representation Letter
_____________, 19___
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1995-Q7
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1995-Q7, Class __
Dear Sirs:
In connection with the sale by __________________ (the "Seller") to
_______________________ (the "Purchaser") of $____________ Initial Certificate
Principal Balance of Mortgage Pass-Through Certificates, Series 1995-Q7, Class
___ (the "Certificates"), issued pursuant to the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1995 among DLJ
Mortgage Acceptance Corp., as seller (the "Company"), Temple-Inland Mortgage
Corporation, as master servicer, and Bankers Trust Company, as trustee
(the "Trustee"). The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with
-2-
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
Very truly yours,
________________________________________
(Seller)
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT G-3
TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
___________________, being first duly sworn, deposes, represents and
warrants:
1. That he is [Title of Officer] of [Name of Owner], a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of ___________] [the United States], (the "Owner"), (record or beneficial
owner of the Class [R-I] [R-II] Certificates on behalf of which he makes this
affidavit and agreement). This Class [R-I] [R-II] Certificate was issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of November 1, 1995 among DLJ Mortgage Acceptance Corp., as
depositor, Temple-Inland Mortgage Corporation, as master servicer (the "Master
Servicer"), and Bankers Trust Company, as trustee (the "Trustee").
2. That the Owner (i) is and will be a "Permitted Transferee" as of
________, 199__ and (ii) is acquiring the Class [R-I] [R-II] Certificates for
its own account or for the account of another Owner from which it has received
an affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a Non-
United States Person. For this purpose, a "disqualified organization" means any
of the following: (i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for the FHLMC, a majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Internal Revenue
Code of 1986) (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 on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v)
any other Person so designated based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class [R-I] [R-II] Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class [R-I] [R-II] Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I] [R-II] Certificates to disqualified organizations
under the Code that applies to
-2-
all transfers of the Class [R-I] [R-II] Certificates after March 31, 1988; (ii)
that such tax would be on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a disqualified
organization Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false and; (iv) that the Class [R-I] [R-II]
Certificates may be "noneconomic residual interests" within the meaning of
Treasury Regulation Section 1.860E-1(c)(2) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I] [R-II] Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.
5. That the Owner is aware that the Trustee will not register the
transfer of any Class [R-I] [R-II] Certificates unless the transferee, or the
transferee's agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class [R-I] [R-II] Certificates will
only be owned, directly or indirectly, by Owners that are Permitted Transferees.
7. That the Owner's taxpayer identification number is __________.
8. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I] [R-II] Certificates and the provisions of Section 5.02
of the Pooling and Servicing Agreement under which the Class [R-I] [R-II]
Certificates were issued (and, in particular, the Owner is aware that such
Section authorizes the Trustee to deliver payments to a person other than the
Owner and negotiate a mandatory sale by the Trustee in the event that the Owner
holds such Certificate in violation of Section 5.02); and that the Owner
expressly agrees to be bound by and to comply with such restrictions and
provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I] [R-II] Certificates in order to impede the assessment or collection of any
tax.
10. That the Owner anticipates that it will, so long as it holds the
Class [R-I] [R-II] Certificates, have sufficient assets to pay any taxes owed by
the holder of such Class [R-I] [R-II] Certificates.
-3-
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class [R-I] [R-II] Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the Person from whom it acquired the Class [R-I] [R-II]
Certificates that the Owner intends to pay taxes associated with holding the
Class [R-I] [R-II] Certificates as they become due, fully understanding that it
may incur tax liabilities in excess of any cash flows generated by the Class [R-
I] [R-II] Certificates.
13. That the Owner is not acquiring the Class [R-I] [R-II]
Certificates with the intent to transfer the Class [R-I] [R-II] Certificates to
any person or entity that will not have sufficient assets to pay any taxes owed
by the holder of such Class [R-I] [R-II] Certificates, or that may become
insolvent or subject to a bankruptcy proceeding, for so long as the Class [R-I]
[R-II] Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it makes of
the Class [R-I] [R-II] Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class [R-I] [R-II] Certificates were issued and will
not consummate any such transfer if it knows, or knows facts that should lead it
to believe, that any such representations are false.
15. That Owner will, in connection with any transfer that it makes of
the Class [R-I] [R-II] Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class [R-I] [R-II]
Certificates to impede the assessment or collection of any tax and that it has
no actual knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of the Class [R-I] [R-II]
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding,
for so long as the Class [R-I] [R-II] Certificates remain outstanding and; (iii)
is not a "Permitted Transferee".
16. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ____ day of ____________,
____.
[NAME OF OWNER]
By: _______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that such
person executed the same as such person's free act and deed and the free act and
deed of the Owner.
Subscribed and sworn before me this ___ day of _____________, 19__.
______________________________
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF ______________________
My Commission expires the ____ day of
_______, 19__.
EXHIBIT G-4
Form of Transferor Certificates
___________________, 19__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1995-Q7
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1995-Q7, Class [R-I] [R-II]
Dear Sirs:
This letter is delivered to you in connection with the sale by
___________________________ (the "Seller") to _____________________________
(the "Purchaser") of a ___% Percentage Interest in the Mortgage Pass-Through
Certificates, Series 1995-Q5, Class [R-I] [R-II] (the "Certificates"), issued
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of November 1, 1995, among DLJ Mortgage
Acceptance Corp., as seller (the "Company"), Temple-Inland Mortgage Corporation,
as master servicer, and Bankers Trust Company, as trustee (the "Trustee"). All
terms used herein and not otherwise defined shall have the meaning set forth in
the Pooling and Servicing Agreement. The Seller hereby certifies, represents
and warrants to, and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the sale of the Certificates
by the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit G-3. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they have become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of the Certificates
may not be respected for
-2-
United States income tax purposes (and the Seller may continue to be liable for
United States income taxes associated therewith) unless the Seller has conducted
such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee
is a Disqualified Organization, an agent of a Disqualified Organization or a
Non-United States Person.
Very truly yours,
___________________________________
(Seller)
By: _______________________________
Name:______________________________
Title:_____________________________
EXHIBIT G-5
FORM OF INVESTOR REPRESENTATION LETTER FOR INSURANCE COMPANIES
________, 199__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1995-Q7
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1995-Q7, Class __
Dear Sirs:
_______________ (the "Purchaser") intends to purchase from __________
(the "Seller") $____________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 1995-Q7, Class __ (the "Certificate"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as November 1, 1995, among DLJ Mortgage Acceptance Corp., as
seller (the "Company"), Temple-Inland Mortgage Corporation, as master servicer,
and Bankers Trust Company, as trustee (the "Trustee"). All terms used herein
and not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company and the Trustee that:
1. The Certificates purchased pursuant hereto will not be
transferred to any employee benefit plan or other retirement
arrangement including individual retirement accounts and Xxxxx plans
that is subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the
Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan").
-1-
2. The Purchaser is an insurance company and the source of funds
used to purchase the Certificates is an "insurance company general
account" (as such term is defined in Prohibited Transaction Class
Exemption 95-60 issued by the U.S. Department of Labor ("PTCE 95-60")
and there is no plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on
behalf of such Plan and all other plans maintained by the same
employer (or affiliate thereof as defined in PTCE 95-60) or by the
same employee organization, exceed 10% of the total of all reserves
and liabilities of such general account (as such amounts are
determined under PTCE 95-60) as of the date of acquisition of such
Certificates.
Very truly yours,
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT H
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1995-Q7, Class ___, No. ___
The undersigned seller, as registered holder (the "Transferor"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Transferor hereby certifies the following facts: Neither the Transferor nor
anyone acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A Securities
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security with, any person in
any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, which would constitute a
distribution of the Rule 144A Securities under the Securities Act of 1933, as
amended (the "1933 Act"), or which would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, and that the Transferor has not offered the Rule 144A
Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Transferor, the Trustee and the Master Servicer pursuant to Section 5.02 of the
Pooling and Servicing Agreement as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Transferor, the
Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest
in the Rule 144A Securities or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect
to the Rule 144A Securities, any interest in the Rule 144A Securities or
any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of
the Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such manner
with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on
Rule 144A. The Buyer is acquiring the Rule 144A Securities for its own
account or the account of other qualified institutional buyers, understands
that such Rule 144A Securities may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the
Transferor, the Servicer and the Depositor that either (1) the Buyer is not an
employee benefit plan within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("Plan"), or a plan
within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
(the "Code") (also a "Plan"), and the Buyer is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan, or (2) the Buyer's
purchase of the Rule 144A Securities will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
___________________________________ _______________________________________
Print Name of Transferor Print Name of Buyer
By:________________________________ By:____________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.________________________________ No.____________________________________
Date:______________________________ Date:__________________________________
ANNEX 1 TO EXHIBIT H
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $______________________ (1) in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statement, a copy of which is attached
hereto.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
________________________
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securites unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
-2-
___ INSURANCE COMPANY. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISER. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another
-3-
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule 144A.
In addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
________________________________________
Print Name of Buyer
By:_____________________________________
Name:
Title:
Date:___________________________________
ANNEX 2 TO EXHIBIT H
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made
-2-
herein because one or more sales to the Buyer will be in reliance on Rule 144A.
In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
________________________________________
Print Name of Buyer
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Buyer
Date:___________________________________
EXHIBIT I
MORTGAGE LOAN SCHEDULE
EXHIBIT J
SELLER REPRESENTATIONS AND WARRANTIES
Seller's Representations Assigned by Depositor to Trustee
Representations and Warranties. Pursuant to the Mortgage Loan Purchase
Agreement, the Seller has made certain representations and warranties to the
Depositor. The Seller shall confirm such representations and warranties and
shall deliver a Seller's Warranty Certificate and an Officers' Certificate on
the Closing Date (i) reaffirming such representations and warranties and (ii)
specifically restating and reaffirming the following representations and
warranties as of such date. The following representations are, pursuant to the
Pooling and Servicing Agreement, assigned by the Depositor to the Trustee for
the benefit of the Certificateholders, together with the related repurchase
rights specified in the Mortgage Loan Purchase Agreement. Pursuant to the
Mortgage Loan Purchase Agreement, the Seller's Warranty Certificate and related
Officer's Certificate, the Seller affirms each such representation and warranty
and agrees, consents to and acknowledges the assignment thereof to the Trustee.
All capitalized terms herein shall have the meanings assigned in the Pooling and
Servicing Agreement and the Seller's Warranty Certificate, as applicable.
The Seller hereby represents and warrants to the Depositor and
Trustee, as to each Mortgage Loan, that as of the Closing Date or as of such
other date specifically provided herein:
I. The information set forth in the related Mortgage Loan Schedule
with respect to each Mortgage Loan is true and correct in all material respects
as of the Closing Date;
(i) No Mortgage Loan had a Loan-to-Value Ratio at origination in
excess of 85% and no Mortgage Loan had a combined Loan-to-Value Ratio at
origination, including any second deed of trust subordinated to the lien of the
Mortgage, in excess of 90%;
(ii) As of the Closing Date, no Mortgage Loan is sixty (60) or more
days delinquent in payment of principal or interest;
(iii) Each Mortgage Note is directly secured by the Mortgage, and
each Mortgaged Property consists of a single parcel of real estate. Each
Mortgage secures the outstanding principal balance of the Mortgage Note and is a
valid and enforceable first lien on the Mortgaged Property subject only to
(1) the lien of nondelinquent current real property taxes and assessments,
(2) covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal made in connection with the
origination of the related Mortgage Loan, and (3) other matters to which like
properties are commonly subject that do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
(iv) Immediately prior to the delivery of the Mortgage Loan to
DLJMCI, the Seller had good title to, and was the sole owner of, such Mortgage
Loan free and clear of any mortgage, pledge, lien, security interest, charge or
other encumbrance (other than any junior lien
-2-
on the Mortgaged Property encumbered by the related Mortgage) and had full right
and authority, subject to no interest or participation of, or agreement with,
any other party, to sell and assign the Mortgage Loan pursuant to the related
Mortgage Loan Purchase Agreement;
(v) There was no delinquent tax or assessment lien against any
Mortgaged Property at the time of the origination of the related Mortgage Loan;
(vi) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to pay the
unpaid principal of or interest on such Mortgage Note, and any applicable right
of rescission has expired as of the Closing Date;
(vii) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property that are or may be a lien prior to, or
equal with, the lien of such Mortgage, except those that are insured against by
the title insurance policy referred to in clause (xii) below;
(viii) Each Mortgaged Property is free of material damage and is in at
least adequate repair;
(ix) Each Mortgage Loan at origination complied in all respects with
applicable state and federal laws, including, without limitation, usury, equal
credit opportunity, real estate settlement procedures, truth-in-lending and
disclosure laws, and consummation of the transactions contemplated hereby will
not involve the violation of any such laws;
(x) At the Closing Date, neither the Seller nor any prior holder of
any Mortgage has, except as the Mortgage File may reflect, (1) modified the
Mortgage in any material respect, (2) satisfied, canceled or subordinated such
Mortgage in whole or in part, (3) released the related Mortgaged Property in
whole or in part from the lien of such Mortgage or (4) executed any instrument
of release, cancellation, modification or satisfaction with respect thereto;
(xi) A lender's policy of title insurance or a commitment (binder)
to issue the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and effect and each
such policy was issued by a title insurer acceptable to FNMA or FHLMC and in a
form acceptable to FNMA or FHLMC;
(xii) Each Mortgage Loan was originated or acquired (1) by the Seller
either directly or indirectly through loan brokers or a correspondent lender
specifically approved by the Seller and DLJMCI, such that (a) the Mortgage Loan
was originated in conformity with the Seller's underwriting guidelines, (b)
DLJMCI approved the Mortgage Loan either prior to the funding thereof or, in the
case of a Mortgage Loan originated pursuant to the Seller's delegated
underwriting guidelines, approved the Mortgage Loan after the funding thereof
and (c) the Seller funded the Mortgage Loan on the date of origination thereof
with its own funds or with funds obtained by it or, in the case of a Mortgage
Loan originated by a correspondent lender approved
-3-
by the Seller and DLJMCI, the Mortgage Loan was approved by the Seller prior to
origination and was purchased by the Seller from such correspondent lender
within 30 days of the date of origination pursuant to a mandatory purchase
commitment in effect at origination, (2) by a savings and loan association,
savings bank, commercial bank, credit union, insurance company or similar
institution that is supervised and examined by a federal or state authority or
(3) by a mortgagee approved by the Secretary of HUD pursuant to Sections 203 and
211 of the National Housing Act, as amended;
(xiii) The Mortgage Rate on each Mortgage Loan will be subject to
adjustment commencing at the end of the initial fixed interest rate period
following its respective date of origination, and semi-annually thereafter, and
each such Mortgage Loan has an original term to maturity from the date on which
the first monthly payment is due of not less than approximately 15 years and not
more than approximately 30 years. On each adjustment date, the Mortgage Rate
will be adjusted to equal the Index plus the Gross Margin, rounded to the
nearest 0.125%, subject to the Periodic Rate Cap, the Maximum Rate and the
Minimum Rate. The related Mortgage Note is payable on the first day of each
month in self-amortizing monthly installments of principal and interest, with
interest payable in arrears, and requires a Monthly Payment which is sufficient
(a) to fully amortize the outstanding principal balance of the Mortgage Loan
over its remaining term and to pay interest at the applicable Mortgage Rate, and
(b) during the period following each adjustment date, to fully amortize the
original principal balance as of the first day of such period over the then
remaining term of such Mortgage Loan and to pay interest at the applicable
Mortgage Rate. No Mortgage Loan is subject to negative amortization or is a
graduated payment Mortgage Loan. Interest on each Adjustable Rate Mortgage Loan
is calculated on the basis of a 360-day year consisting of twelve 30-day months;
(xiv) All of the improvements that were included for the purpose of
determining the appraised value of the Mortgaged Property are insured to lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, unless, in either case, an agreement permitting such encroachment is
recorded in the applicable real property records and such agreement was taken
into account in conducting the appraisal of the Mortgaged Property;
(xv) No improvement considered in determining the related appraised
value located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation. All inspections, licenses and certificates
required to be made or issued with respect to the use and occupancy of the
Mortgaged Property, including but not limited to certificates of occupancy and
fire underwriting certificates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied under applicable
law;
(xvi) All parties that have had any interest in the Mortgage, 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)(a) organized under the laws of such
state, (b) qualified to do business in such state, (c) federal
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savings associations or national banks having principal offices in such state or
(d) not doing business in such state;
(xvii) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms. All parties to the Mortgage Note and
the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage
and each Mortgage Note and Mortgage has been duly and properly executed and
delivered by such parties;
(xviii) The proceeds of the Mortgage Loan have been fully disbursed by
the Seller, there is no requirement for future advances thereunder and any and
all requirements as to completion of any on-site or off-site improvements and as
to disbursements of any escrow funds therefor (including any escrow funds held
to make monthly payments pending completion of such improvements) have been
complied with. All costs, fees and expenses incurred in making, closing or
recording the Mortgage Loans were paid;
(xix) The related Mortgage contains customary and enforceable
provisions that render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including (1) in the case of a Mortgage designated as a deed of trust,
by trustee's sale, and (2) otherwise by judicial foreclosure. There is no
homestead or other exemption available to the Mortgagor that would interfere
with the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage;
(xx) With respect to each Mortgage constituting 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 such Mortgage, and no fees or
expenses are or will become payable by the holder of the Mortgage Loan to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(xxi) Each Mortgaged Property is suitable for year-round occupancy;
(xxii) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other charges
or payments due with respect to the Mortgage Loan (other than origination points
and fees) have been capitalized under the Mortgage or the related Mortgage Note;
(xxiii) The origination practices used by the Seller with respect to
each Mortgage Loan have been in all respects legal, proper, prudent and
customary in the mortgage origination business;
(xxiv) There is no pledged account or other security other than real
estate securing the Mortgagor's obligations;
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(xxv) No Mortgage Loan has a shared appreciation feature or other
contingent interest feature;
(xxvi) No Mortgage Loan is subject to any temporary buydown
provisions;
(xxvii) Pursuant to the terms of the related 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
3.13 of each Pooling and Servicing Agreement. 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 is in effect which policy conforms to the requirements of the Pooling and
Servicing Agreements;
(xxviii) An appraisal of each Mortgaged Property is on a form approved
by FNMA or FHLMC with such riders as have been approved by FNMA or FHLMC, as the
case may be, and each appraiser meets the minimum qualifications of FNMA or
FHLMC for appraisers;
(xxix) The Seller has not provided financing on any Mortgaged Property
that is subordinate to the lien of the related Mortgage Loan;
(xxx) Each Mortgage Loan contains a customary "due-on-sale" clause;
(xxxi) With respect to each Mortgage Loan in which the Mortgagor has a
leasehold interest in the related Mortgaged Property:
(a) The leasehold was created by direct lease of the
freehold estate, and the ground lease or memorandum thereof has
been recorded and by its terms permits the leasehold estate to be
mortgaged. The ground lease grants any leasehold mortgagee
standard protection necessary to protect the security of a
leasehold mortgagee, including the right of a leasehold mortgagee
to receive notice of the lessee's default under the ground lease;
the right of the leasehold mortgagee, with adequate time, to cure
such default; and, in the case of incurable defaults of the
lessee, the right of the leasehold mortgagee to enter into a new
ground lease with the lessor on terms financially identical and
otherwise substantially identical to the existing ground lease;
(b) The ground lease was at the origination of the Mortgage
Loan, and is, in full force and effect without any outstanding
defaults, and was and is not subject to liens and encumbrances;
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(c) The ground lease shall be automatically renewable for
at least thirty (30) years or at least ten (10) years beyond the
scheduled date for the final payment on the Mortgage Loan; and
(d) The fee estate of the lessor under the ground lease is
encumbered by the ground lease, and any lien of any present or
future fee mortgagee is and will be subject to and subordinate to
the ground lease. The foreclosure of the fee mortgage will not
terminate the leasehold estate or the rights of the sub-tenants,
and the fee mortgage is subject to the ground lease;
(xxxii) Except for the criteria for eligible Mortgagors set forth in
the Seller's underwriting guidelines, the Seller knows of nothing involving any
Mortgage File, Mortgaged Property or Mortgagor's credit standing that could
reasonably be expected (1) to cause private institutional investors to regard
the Mortgage Loan as an unacceptable investment, (2) to cause the Mortgage Loan
to become delinquent or (3) to affect adversely the value or marketability of
the Mortgage Loan;
(xxxiii) There are no condemnation proceedings pending with respect to
any Mortgaged Property, and no Mortgaged Property had been condemned either in
whole or in part;
(xxxiv) The Mortgage Loans were not selected for inclusion under the
Mortgage Loan Purchase Agreements from the Seller's portfolio of mortgage loans
originated under its "regular lending program" on any basis which would have a
material adverse effect on the holders of the Certificates;
(xxxv) All of the Mortgage Loans were originated or acquired under the
Seller's "regular lending program";
(xxxvi) The collection practices used by the Seller with respect to
each Mortgage Note and Mortgage serviced by the Seller have been in all material
respects legal, proper, prudent and customary in the mortgage origination and
servicing industry; and the Mortgage Loans have been serviced by the Seller in
accordance with the terms of the Mortgage Loan documents, any applicable
mortgage insurance contract requirements and applicable law in all material
respects; and
(xxxvii) None of the Mortgage Loans are subject to provisions that were
added to the Truth in Lending Act by the Homeownership and Equity Protection Act
of 1994.
EXHIBIT K
Form of Notice Under Section 3.24
________, 1995
[Trustee]
Re: MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1995-Q7
Pursuant to Section 3.24 of the Pooling and Servicing Agreement, dated as
of November 1, 1995, relating to the Certificates referenced above, the
undersigned does hereby notify you that:
(a) The prepayment assumption used in pricing the Certificates was a
Constant Prepayment Rate ("CPR") of __% per annum.
(b) With respect to each Class of the captioned Certificates, set forth
below is (i), the first price, as a percentage of the Certificate Principal
Balance of each Class of Certificates, at which 10% of the aggregate Certificate
Principal Balance of each such Class of Certificates was first sold at a single
price, if applicable, or (ii) if more than 10% of a Class of Certificates have
been sold but no single price is paid for at least 10% of the aggregate
Certificate Principal Balance of such Class of Certificates, then the weighted
average price at which the Certificates of such Class were sold expressed as a
percentage of the Certificate Principal Balance of such Class of Certificates,
(iii) if less than 10% of the aggregate Certificate Principal Balance of a Class
of Certificates has been sold, the purchase price for each such Class of
Certificates paid by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(the "Underwriter") expressed as a percentage of the Certificate Principal
Balance of such Class of Certificates calculated by: (1) estimating the fair
market value of each such Class of Certificates as of November 21, 1995; (2)
adding such estimated fair market value to the aggregate purchase prices of each
Class of Certificates described in clause (i) or (ii) above; (3) dividing each
of the fair market values determined in clause (1) by the sum obtained in clause
(2); (4) multiplying the quotient obtained for each Class of Certificates in
clause (3) by the purchase price paid by the Underwriter for all the
Certificates purchased by it; and (5) for each Class of Certificates, dividing
the product
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obtained from such Class of Certificates in clause (4) by the initial Principal
Balance of such Class of Certificates or (iv) the fair market value (but not
less than zero) as of the Closing Date of each Certificate of each Class of
Certificates retained by the Depositor or an affiliate corporation, or delivered
to the seller:
Class SA: ___________
Class SP: ___________
Class P: ___________
Class A-1: ___________
Class A-2: ___________
Class B: ___________
Class SB: ___________
Class R-I: ___________
Class R-II: ___________
The prices and values set forth above do not include accrued interest with
respect to periods before the closing.
DLJ MORTGAGE ACCEPTANCE CORP.
By:_________________________________
Name:
Title:
