EXECUTION COPY
DLJ MORTGAGE ACCEPTANCE CORP.
Depositor,
and
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
TRUST AGREEMENT
Dated April 30, 1999
Class A-1 Principal Only Certificates
Series 1999-A
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS..............................................................................................1
Section 1.01. Defined Terms..........................................................................1
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES; ORIGINAL
ISSUANCE OF CERTIFICATES.................................................................................9
Section 2.01. Conveyance of the Underlying Certificates..............................................9
Section 2.02. Issuance of Certificates Evidencing Interests in the Trust Fund.......................12
Section 2.03. Representations, Warranties and Covenants of the Depositor and the
Trustee...............................................................................12
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS..............................................................14
Section 3.01. Administration of the Trust Fund and the Underlying Certificates......................14
Section 3.02. Collection of Monies..................................................................14
Section 3.03. Establishment of Certificate Account; Deposits in Certificate Account.................15
Section 3.04. Permitted Withdrawals From the Certificate Account....................................15
Section 3.05. Payments..............................................................................16
Section 3.06. Statements to Certificateholders......................................................17
Section 3.07. Access to Certain Documentation and Information.......................................19
Section 3.08. Allocation of Underlying Certificate Realized Losses..................................19
ARTICLE IV
THE CERTIFICATES........................................................................................19
Section 4.01. The Certificates......................................................................19
Section 4.02. Registration of Transfer and Exchange of Certificates.................................21
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates.....................................22
Section 4.04. Persons Deemed Owners.................................................................22
Section 4.05. Appointment of Paying Agent...........................................................22
ARTICLE V
THE TRUSTEE.............................................................................................23
(i)
Section 5.01. Duties of Trustee.....................................................................23
Section 5.02. Certain Matters Affecting the Trustee.................................................24
Section 5.03. Trustee Not Liable for Certificates or Underlying Certificates........................25
Section 5.04. Trustee May Own Certificates..........................................................25
Section 5.05. Trustee's Fees; Indemnification.......................................................25
Section 5.06. Eligibility Requirements for Trustee..................................................26
Section 5.07. Resignation and Removal of the Trustee................................................26
Section 5.08. Successor Trustee.....................................................................27
Section 5.09. Merger or Consolidation of Trustee....................................................27
Section 5.10. Appointment of Co-Trustee or Separate Trustee.........................................28
Section 5.11. Appointment of Office or Agency.......................................................29
Section 5.12. Trustee Fee Account...................................................................29
Section 5.13. Compliance with Withholding Requirements..............................................30
Section 5.14. Grantor Trust Reporting...............................................................30
Section 5.15. 1934 Act Reports......................................................................30
ARTICLE VI
TERMINATION.............................................................................................31
Section 6.01. Termination...........................................................................31
ARTICLE VII
THE DEPOSITOR...........................................................................................33
Section 7.01. Liability of the Depositor............................................................33
Section 7.02. Merger, Consolidation or Conversion of the Depositor..................................33
Section 7.03. Limitation on Liability of the Depositor..............................................33
ARTICLE VIII
[intentionally omitted].................................................................................34
ARTICLE IX
MISCELLANEOUS PROVISIONS................................................................................34
Section 9.01. Amendment.............................................................................34
Section 9.02. Counterparts..........................................................................35
Section 9.03. Limitation on Rights of Certificateholders............................................36
Section 9.04. Governing Law.........................................................................36
Section 9.05. Notices...............................................................................37
Section 9.06. Notices to Rating Agency..............................................................37
Section 9.07. Severability of Provisions............................................................37
Section 9.08. Successors and Assigns................................................................38
Section 9.09. Article and Section Headings..........................................................38
(ii)
(iii)
Exhibits
--------
Exhibit A Form of Certificate
Exhibit B Underlying Certificate Schedule
(iv)
TRUST AGREEMENT, dated April 30, 1999, between DLJ Mortgage Acceptance
Corp., as depositor (the "Depositor"), and The First National Bank of Chicago,
as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell Certificates, Series 1999-A (the
"Certificates"), to be issued hereunder in a single class which Certificates in
the aggregate will evidence the entire beneficial ownership interest in the
Underlying Certificates (as defined herein). The Trust Fund is intended to
qualify as an "investment trust" within the meaning of Treasury Regulation
'SS'301.7701-4(c), and it is neither the purpose nor the intent of the parties
hereto to create a partnership, joint venture, or association taxable as a
corporation between or among any or all of the Certificateholders, the Trustee
and/or the Depositor. In furtherance of the foregoing, the purpose of the Trust
Fund shall be to protect and conserve the assets of the Trust Fund, and the
Trust Fund shall not at any time engage in or carry on any kind of business or
any kind of commercial or investment activity. In no event shall the Trustee or
any other person have any power to vary the investment of the Certificateholders
in the Certificates or to substitute new investments or reinvest so as to enable
the Trust Fund to take advantage of variations in the market to improve the
investment of the Certificateholders in the Certificates.
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Aggregate Underlying Principal Balance: As of any date of
determination, the aggregate Underlying Principal Balance of all of the
Underlying Certificates as of such date.
Agreement: This Trust Agreement and all amendments hereof.
Anticipated Termination Date: Any Distribution Date on which the
Trustee anticipates that the Trust Fund will be terminated pursuant to Section
6.01.
Available Funds: For any Distribution Date, the aggregate amount on
deposit in the Certificate Account as of the close of business on the Business
Day immediately preceding such Distribution Date, net of any portion thereof
which represents amounts payable pursuant to clause (ii), (iii), (iv) or (v) of
Section 3.04.
Book-entry Certificates: The Certificates referred to collectively.
Business Day: Any day other than a Saturday, a Sunday or a day on which
banking institutions in the State of New York, or such other state or states in
which the Certificate Account, the Trustee Fee Account or any other account
relating to the Underlying Certificates is located are required or authorized by
law or executive order to be closed.
Certificate: Any one of the Certificates, Series 1999-A, executed,
authenticated and delivered by the Trustee substantially in the form annexed
hereto as Exhibit A, evidencing an interest in the Trust Fund.
Certificate Account: The trust account or accounts, which shall at all
times be Eligible Accounts, created and maintained by the Trustee pursuant to
Section 3.03. Funds deposited in the Trust Certificate Account shall be held in
trust for the Certificateholders for the uses and purposes set forth herein.
Certificate Owner: Any Person who is the beneficial owner of a
Book-Entry Certificate registered in the name of the Depository or its nominee.
Certificate Principal Balance: With respect to any Certificate and any
Distribution Date, an amount equal to the Percentage Interest evidenced thereby
multiplied by the Aggregate Underlying Principal Balance.
Certificate Registrar and Certificate Register: Shall each have the
meanings provided in Section 4.02.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that solely for the purpose of
giving any consent or exercising any Voting Rights pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee or any of
their respective affiliates shall be deemed not to be an Outstanding Certificate
or counted in any way.
Closing Date: April 30, 1999
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Global Corporate Trust Services; and for the
purposes of Section 5.11, its address is 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Definitive Certificates: The Certificates referred to in Section
4.01(c).
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Depositor: DLJ Mortgage Acceptance Corp., a Delaware corporation, or
its successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede
& Co.
Depository Agreement: The agreement referred to in Section 4.01(b).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Distribution Date: The third Business Day following the latest
Underlying Remittance Date of each calendar month. The first Distribution Date
will be May 28, 1999.
DLJSC: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, a Delaware
corporation, or its successor in interest.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the short-term deposits of which have
been rated not lower than "F-1" by the Rating Agency and the long-term deposits
of which have been rated not lower than "AA" by the Rating Agency, (ii) an
account or accounts the deposits in which such accounts are fully insured to the
limits established by the FDIC, provided that any such deposits not so insured
shall, to the extent acceptable to the Rating Agency, as evidenced in writing,
be otherwise maintained such that (as evidenced by an Opinion of Counsel
delivered to the Trustee and the Rating Agency) the Holders of Certificates have
a claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to all claims of any other
depositors or creditors of the depository institution with which such account is
maintained, (iii) a trust account or accounts maintained in the corporate trust
department of the Trustee, or (iv) an account or accounts of a depository
institution acceptable to the Rating Agency, (as evidenced in writing that use
of any such account as the Certificate Account or the Trustee Fee Account will
not have an adverse effect on the then current ratings assigned to the
Certificates by the Rating Agency).
Fair Market Value: With respect to any Underlying Certificate as of any
date of determination, the fair market value of such Underlying Certificate as
determined by taking the average of three estimates of such value of such
Underlying Certificate as provided by three Independent experts who regularly
buy and sell, or make a market in, mortgage securities. One expert shall be
selected by the Trustee, and the other two experts shall be selected by the
expert selected by the Trustee.
FDIC: The Federal Deposit Insurance Corporation or any successor.
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Final Distribution Date: The Distribution Date set forth in the notice
delivered by the Trustee of the final distribution in respect of the
Certificates pursuant to Section 6.01.
Holder: See definition of Certificateholder.
Independent: When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Depositor and the Trustee, (ii)
does not have any direct financial interest in the Depositor or in the Trustee
or in any of their respective affiliates, and (iii) is not connected with the
Depositor or the Trustee as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Notice of Final Distribution: With respect to any Underlying
Certificate, the notice to be provided pursuant to the related Pooling and
Servicing Agreement to the effect that final distribution on such Underlying
Certificate shall be made only upon presentation and surrender thereof.
Notice of Termination: Shall have the meaning provided in Section
6.01(b).
Officers' Certificate: As required by this Agreement, a certificate
signed by (i) with respect to the Depositor, the Chairman of the Board, the
President or a Vice President or Assistant Vice President and by the Treasurer,
the Secretary, or one of the Assistant Treasurers or Assistant Secretaries of
the Depositor or (ii) with respect to the Trustee, a Responsible Officer.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor, which opinion is reasonably acceptable to the Trustee; except
that any opinion of counsel relating to the qualification of any account
required to be maintained pursuant to this Agreement as an Eligible Account must
be an opinion of Independent counsel. No opinion of counsel shall be deemed
unacceptable by the Trustee merely because such opinion is an opinion of counsel
who is an employee of the Person on whose behalf such opinion is rendered unless
such opinion of counsel is required to be an opinion of Independent counsel.
Except as otherwise specifically set forth herein, no opinion of counsel shall
be an expense of the Trustee.
Outstanding Certificates: As of any date of determination, subject to
the definition of Certificateholder, all Certificates theretofore executed and
delivered under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
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(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered pursuant to this Agreement unless
proof satisfactory to the Trustee is presented that any such Certificates are
held by a holder in due course.
Ownership Interest: As to any Certificate or Underlying Certificate,
any ownership or security interest in such Certificate or Underlying
Certificate, respectively, 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.
Paying Agent: The Trustee or any paying agent appointed by the Trustee
as provided in Section 4.05.
Percentage Interest: With respect to any Certificate, the undivided
percentage ownership interest evidenced by such Certificate in the Trust Fund,
as stated on the face of such Certificate.
Permitted Investments: 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;
(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 short-term unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by the Rating Agency in its
highest short-term rating category available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining maturity of
more than 30 days) of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof or of any
domestic branch of a foreign depository institution or trust company; provided
that the debt obligations of such depository institution or trust company at the
date of acquisition thereof have been rated by the Rating Agency in its highest
short-term rating category available;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by the Rating
Agency in its highest short-term rating available; provided that such commercial
paper shall have a remaining maturity of not more than 30 days;
(v) a money market fund or mutual fund rated by the Rating Agency in
its highest long-term rating available; and
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(vi) other obligations or securities that are acceptable to the Rating
Agency as a Permitted Investment hereunder and will not reduce the rating
assigned to the Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency, as evidenced in writing; provided, however,
that such investment will not qualify as a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal payments with respect to such instrument provide a yield to maturity
greater than 120% of the yield to maturity at par of such underlying
obligations.
References herein to the highest rating category available on unsecured
long-term debt shall mean "AAA" in the case of Standard & Poor's Ratings Group,
Fitch IBCA, Inc. and Duff & Xxxxxx Credit Rating Co. and "Aaa" in the case of
Xxxxx'x Investors Service, Inc., and references herein to the highest rating
category available on unsecured commercial paper and short-term debt obligations
shall mean "A-1" in the case of Standard & Poor's Ratings Group, "P-1" in the
case of Xxxxx'x Investors Service, Inc. and either "A-1" by Standard & Poor's
Ratings Group, "P-1" by Xxxxx'x Investors Service, Inc. or "F-1" by Fitch IBCA,
Inc. in the case of Fitch IBCA, Inc. and either "A-1" by Standard & Poor's
Ratings Group, "P-1" by Xxxxx'x Investors Service, Inc. or "D-1" by Duff &
Xxxxxx Credit Rating Co. in the case of Duff & Xxxxxx Credit Rating Co.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Pooling and Servicing Agreement: With respect to any Underlying
Certificate, the pooling and servicing agreement or other governing agreement,
together with all exhibits thereto, pursuant to which such Underlying
Certificate was issued.
Rating Agency: Fitch IBCA, Inc. or its successor in interest. If such
agency and its successor are no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person as is designated by the Depositor, notice of which designation shall be
given to the Trustee.
Record Date: With respect to any Distribution Date, the last Business
Day of the month preceding the month in which the related Distribution Date
occurs.
Responsible Officer: When used with respect to the Trustee, any officer
in the corporate trust department of the Trustee, including any Vice President,
any Assistant Vice President, any Assistant Treasurer, any Trust Officer or any
other officer of the Trustee customarily performing functions substantially
similar to those performed by any of the above designated officers to whom, with
respect to a particular matter, such matter is referred and who shall have
direct responsibility for the administration of this Agreement.
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Single Certificate: A Certificate in a Percentage Interest equivalent
to an initial Certificate Principal Balance of $1,000.
Termination Date: The Distribution Date on which the Trust Fund is
terminated pursuant to Section 6.01.
Termination Price: Shall have the meaning provided in Section 6.01(a).
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring or taking an assignment by
Transfer any Ownership Interest in a Certificate.
Transferor: Any Person who is disposing or assigning by Transfer of any
Ownership Interest in a Certificate.
Trust Fund: The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, consisting
of:
(i) the Underlying Certificates;
(ii) all distributions thereon after the Closing Date; and
(iii) the Certificate Account.
Trustee: The First National Bank of Chicago, a national banking
association, its successor in interest or any successor trustee appointed as
herein provided.
Trustee Fee: With respect to any Distribution Date, the related monthly
fee payable to the Trustee as compensation for its activities hereunder, which
shall be payable from amounts on deposit in the Trustee Fee Account subject to
the limitations set forth in Section 5.05 and which shall be equal to the
product of (A) a fraction (but less than 1), the numerator of which is the
Available Funds for such Distribution Date and the denominator of which is the
Aggregate Underlying Principal Balance immediately prior to the Underlying
Remittance Date and (B) the amount on deposit in the Trustee Fee Account.
Trustee Fee Account: The trust account or accounts, which shall at all
times be an Eligible Account or Eligible Accounts, created and maintained by the
Trustee pursuant to Section 5.12 and the funds deposited therein which shall be
held for the Trustee for the uses and purposes set forth in Section 5.12.
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Underlying Certificate: Any one of the mortgage securities transferred
to the Trustee by the Depositor pursuant to Section 2.01, as from time to time
are held as a part of the Trust Fund and as are more fully described in the
Underlying Certificate Schedule.
Underlying Certificate Realized Loss: With respect to any Underlying
Remittance Date, any loss to the extent allocated in whole or in part to any
Underlying Certificate with respect to such Underlying Remittance Date pursuant
to the related Pooling and Servicing Agreement. For purposes of calculations of
distributions to Certificateholders on each Distribution Date pursuant to
Section 3.05, calculations of amounts required to be set forth on statements to
Certificateholders pursuant to Section 3.06 and allocations of Underlying
Certificate Realized Losses pursuant to Section 3.08, the amount of Underlying
Certificate Realized Losses (to the extent such calculations relate to any
Underlying Certificate with respect to which the Trustee shall not have received
the related Underlying Remittance Date Statement prior to the date such
calculations are required to be made) shall be calculated by the Trustee from
certificate factor information available to it on each related Underlying
Remittance Date with respect to the distributions made on the Underlying
Certificates on such Underlying Remittance Date.
Underlying Certificate Schedule: The schedule attached as Exhibit B
hereto identifying the Underlying Certificates.
Underlying Certificateholder: The registered holder of any Underlying
Certificate, which following the execution and delivery of this Agreement by the
parties hereto, shall be the Trustee for the benefit of the Certificateholders.
The Trustee shall be permitted to hold any of the Underlying Certificates in the
name of its nominee (which shall not be the Depositor or any affiliate of the
Depositor).
Underlying Depository: The depository named under any of the Pooling
and Servicing Agreements to be the registered owner of the related Underlying
Certificates, to the extent issued in book-entry form.
Underlying Event of Default: The occurrence or continuance of any event
of default under a Pooling and Servicing Agreement by any party responsible
thereunder for servicing or for administration of the underlying trust fund, or
for calculations and distributions of amounts payable to Underlying
Certificateholders.
Underlying Principal Balance: With respect to any Underlying
Certificate, as of any Underlying Remittance Date (following all distributions
and allocations of Underlying Certificate Realized Losses to be made with
respect to such Underlying Certificate on such Underlying Remittance Date), and
as of any date of determination thereafter until the next succeeding Underlying
Remittance Date, the principal balance, if any, of such Underlying Certificate
as set forth in, or calculated in accordance with, the terms of the related
Pooling and Servicing Agreement on the basis of the Underlying Remittance Date
Statement sent to the Trustee.
8
Underlying Remittance Date: With respect to any Underlying Certificate,
the date each month on which payments are made to the holders of such Underlying
Certificate in accordance with the related Pooling and Servicing Agreement.
Underlying Remittance Date Statement: With respect to any Underlying
Certificate and any Distribution Date, the monthly remittance report forwarded
to the Holder of such Underlying Certificate with respect to such Underlying
Remittance Date pursuant to the related Pooling and Servicing Agreement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. For so long as Certificates
remain Outstanding Certificates, all Voting Rights shall be allocated among
Holders of such Certificates in proportion to their respective Percentage
Interests.
All other capitalized terms used herein, if not otherwise defined
herein and unless the context otherwise requires, shall have the respective
meanings set forth in the applicable Pooling and Servicing Agreement.
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificates.
The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, transfer, assign, set-over and otherwise convey to the
Trustee, in trust, for the use and benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Underlying Certificates. Such assignment includes, without limitation, all
amounts payable to and all rights of the Underlying Certificateholders pursuant
to the related Pooling and Servicing Agreement.
In connection with such transfer and assignment, the Depositor hereby
delivers or shall cause to be delivered to, and deposits or shall cause to be
deposited with, the Trustee each of the following documents or instruments
relating to each Underlying Certificate:
(i) (a) if the registered owner of such Underlying Certificate is an
Underlying Depository, written evidence of the transfer of the Ownership
Interest in such Underlying Certificate on the books and records of such
Depository to the account of the Trustee or its nominee (which nominee shall not
be the Depositor or any affiliate of the Depositor); or, (b) in all other cases
a duly issued and authenticated Underlying Certificate endorsed to "The First
National Bank of Chicago, as trustee under the Trust Agreement, dated April 30,
1999, relating to DLJ Mortgage Acceptance Corp. Class A-1 Principal Only
Certificates, Series 1999-A" or in the name of its nominee (which shall not be
the Depositor or any affiliate of the Depositor)
9
together with such documents as shall be necessary to cause registration of
transfer of such certificate to be made and to obtain a duly issued and
authenticated Underlying Certificate in such name;
(ii) a copy of the related Pooling and Servicing Agreement; and
(iii) a copy of the March 1999 Underlying Remittance Date Statement
delivered to the related Underlying Certificateholder with respect to such
Underlying Certificate.
The Trustee hereby acknowledges the receipt by it of the Underlying
Certificates (including without limitation, (a) with respect to each Underlying
Certificate the registered owner of which is an Underlying Depository, the
written evidence referred to in clause (i)(a) above of the transfer of the
Ownership Interest in such Underlying Certificate on the books and records of
such Depository to the account of the Trustee or its nominee, and (b) in all
other cases each certificate representing each of the Underlying Certificates)
and, except as contemplated below, the other documents and instruments
referenced above. The Trustee declares that it holds and will hold such
Underlying Certificates and such other documents and instruments, and that it
holds and will hold all other assets and documents included in the Trust Fund,
in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee makes no representation as to the accuracy of
the percentage interest represented by any Underlying Certificate, as set forth
in the Underlying Certificate Schedule, and the Trustee shall have no obligation
to recompute, recalculate or verify any such percentage interest, the foregoing
acknowledgment of receipt having been made in respect of initial Underlying
Principal Balances of the Underlying Certificates as evidenced by the documents
and instruments delivered to the Trustee pursuant to clauses (i), (ii) and (iii)
above. If the Depositor is denied access to any such Pooling and Servicing
Agreement or Underlying Remittance Date Statement because it is not a holder of
any of the mortgage securities related thereto, then the Trustee in its capacity
as Underlying Certificateholder of each applicable Underlying Certificate shall,
at the Depositor's request and expense, provide such cooperation and assistance
as shall reasonably be necessary for the Depositor to obtain a copy of such
Pooling and Servicing Agreement or Underlying Remittance Date Statement, as the
case may be. Upon the delivery of such copy to the Trustee, the Depositor shall
be deemed to have satisfied the delivery requirements set forth in clause (ii)
or (iii) above, as the case may be. Notwithstanding the foregoing, the Depositor
shall have no obligation to repurchase any Underlying Certificate as to which it
is unable for any reason to deliver the related Pooling and Servicing Agreement
and the Depositor shall have no liability to any Person if, having used
reasonable best efforts as described above, it is unable for any reason to
deliver such Pooling and Servicing Agreement or Underlying Remittance Date
Statement. In the event the Depositor fails to deliver to the Trustee any item
specified in clause (ii) or (iii) above, the Trustee shall not be liable to any
Certificateholder or any other Person for the failure of the Trustee to possess
such items as part of the Trust Fund.
The transfer of the Underlying Certificates and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto as
a sale. Except as provided in Sections 2.03,
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3.02(b) and 6.01 hereof, the Trustee shall not assign, sell, dispose of or
transfer any interest in the Underlying Certificates or any other asset
constituting the Trust Fund or permit the Underlying Certificates or any other
asset constituting the Trust Fund to be subjected to any lien, claim or
encumbrance arising by, through or under the Trustee or any Person claiming by,
through or under the Trustee.
Promptly after the Closing Date, with respect to each Underlying
Certificate the registered owner of which is not an Underlying Depository, the
Depositor shall cause registration of transfer of such Underlying Certificate to
be made in the name of the Trustee and the Trustee shall obtain, in exchange for
the documents and instruments specified in Section 2.01(i), a duly issued and
authenticated Underlying Certificate registered in the name specified in Section
2.01(i)(b) in respect of such Underlying Certificate. The Depositor shall
promptly remit (by wire transfer of immediately available funds), or cause to be
so remitted, any distributions or other amounts paid in respect of the
Underlying Certificates following the Closing Date and prior to the
effectiveness of the registration of the Underlying Certificates in the name of
the Trustee or its nominee; provided such payments represent payments on such
Underlying Certificates due after the Closing Date.
It is intended that the conveyance of the Underlying Certificates by
the Depositor to the Trustee as provided in this Section be, and be construed
as, an absolute sale of the Underlying Certificates by the Depositor to the
Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be deemed a pledge of the Underlying Certificates
by the Depositor to the Trustee to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the intent of the
parties, the Underlying Certificates are held to be the property of the
Depositor, or if for any other reason this Agreement is held or deemed to create
a security interest in the Underlying Certificates, 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 applicable jurisdiction; (b) the conveyance
provided for in this Section and Section 2.02 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and to
the Underlying Certificates and all amounts payable to the holders of the
Underlying Certificates after the Closing Date in accordance with the terms
thereof, and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account or the Trustee Fee Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Trustee or
its agent of Underlying Certificates 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" for purposes of perfecting the
security interest pursuant to the New York Uniform Commercial Code and the
Uniform Commercial Code of any 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
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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, at
the Depositor's direction and expense, 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 Underlying
Certificates and other assets constituting the Trust Fund described above, 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. Issuance of Certificates Evidencing Interests in the
Trust Fund.
The Trustee acknowledges the assignment to it of the Underlying
Certificates 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 Certificates in authorized denominations
which evidence ownership of the entire Trust Fund.
Section 2.03. Representations, Warranties and Covenants of the
Depositor and the Trustee.
(a) The Depositor hereby represents and warrants to the Trustee for the
benefit of Certificateholders, as of the Closing Date, that immediately prior to
the assignment of the Underlying Certificates to the Trustee, the Depositor had
good and marketable title to, and was the sole owner of, each Underlying
Certificate free and clear of any pledge, lien, encumbrance or other security
interest and such assignment validly transfers ownership of the Underlying
Certificates to the Trustee, free and clear of any pledge, lien, encumbrance or
security interest.
(b) The Trustee hereby represents and warrants to the Depositor and for
the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized and
validly existing under the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by the Trustee,
will not violate the Trustee'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 Trustee has the 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 delivered this Agreement.
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(iv) Without independent investigation, no litigation is pending or, to
the actual knowledge of a Responsible Officer of the Trustee, threatened against
the Trustee which would prohibit the Trustee from entering into this Agreement
or is likely to materially and adversely affect either the ability of the
Trustee to perform its obligations under this Agreement or the financial
condition of the Trustee.
(v) No Responsible Officer of the Trustee has received actual notice,
with respect to the Underlying Certificates and all other assets constituting at
any time part of the Trust Fund, of any adverse claim, as such term is defined
in Section 8-102(a)(1) of the UCC.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 2.03 shall survive delivery of the Underlying
Certificates to the Trustee and the execution and delivery of this Agreement.
Upon discovery by either the Depositor or a Responsible Officer of 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 Underlying Certificate, the party discovering such
breach shall give prompt written notice setting out the nature of such breach to
the other party. In the event of such breach, the Depositor shall have 60 days,
from the earlier of the discovery by the Depositor of such breach or the receipt
of such written notice, to cure such breach in all material respects. If the
Depositor fails to cure such breach, the Depositor shall deposit into the
Certificate Account on the next succeeding Distribution Date, if such breach is
then continuing, an amount equal to the Fair Market Value of the Underlying
Certificate in respect of which there has been such a breach as of the
Distribution Date immediately prior to any distribution thereon for such
Distribution Date. Upon the deposit of such amount, the Trustee shall, at the
Depositor's direction and expense, take such actions and execute such documents
and instruments as shall be necessary to reconvey to the Depositor the Ownership
Interest in the relevant Underlying Certificate and, in the case of any such
Underlying Certificate the registered owner of which is not an Underlying
Depository, to enable the Depositor to cause registration of transfer to it of
such Underlying Certificate to be made and to obtain a duly issued and
authenticated certificate therefor in its or its nominee's name. It is
understood and agreed that the obligation of the Depositor to cure a breach or
to repurchase an Underlying Certificate as to which such a breach has occurred
and is continuing, as provided above, shall constitute the sole remedy available
to the Trustee and the Certificateholders in respect of such breach.
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the Underlying
Certificates.
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If at any time the Trustee, as an Underlying Certificateholder, is
requested in such capacity to take any action or to give any consent, approval
or waiver, including without limitation, in connection with an amendment of the
related Pooling and Servicing Agreement, the Trustee may take such action in
such capacity with respect thereto only in accordance with the written
directions of Holders of Certificates entitled to at least 51% of the Voting
Rights. If an Underlying Event of Default occurs under the related Pooling and
Servicing Agreement, the Trustee, in its capacity as an Underlying
Certificateholder, may take such action in connection with the enforcement of
any rights and remedies available to it in such capacity with respect thereto
and only in accordance with the written directions of Holders of Certificates
entitled to at least 51% of the Voting Rights. The Trustee shall promptly notify
all of the Certificateholders in writing of any such request or any such action.
Section 3.02. Collection of Monies.
(a) In connection with its receipt of any distribution on an Underlying
Certificate on any Underlying Remittance Date, the Trustee may conclusively rely
on the related Underlying Remittance Date Statement and, absent manifest error,
the Trustee shall have no obligation to recompute, recalculate or verify any
information in such Underlying Remittance Date Statement. If the Trustee shall
not have received a distribution on any Underlying Certificate by the close of
business on the date on which such distribution was to be received by the
Trustee, the Trustee shall notify the trustee with respect to such Underlying
Certificate and, if different from the Trustee, any other party responsible for
effectuating distributions under the related Pooling and Servicing Agreement,
and (i) if such distribution shall not have been received by the Trustee one
Business Day following such notice or (ii) a Responsible Officer of the Trustee
shall gain actual knowledge of any Underlying Event of Default under any Pooling
and Servicing Agreement, the Trustee shall promptly notify the
Certificateholders in writing and the terms of Section 3.01 shall apply.
(b) Except as otherwise provided in Section 6.01, upon its receipt of a
Notice of Final Distribution, unless the Underlying Certificate is a book-entry
certificate (in which case the Trustee shall follow such procedures as are
customary or otherwise required by the terms of the related Pooling and
Servicing Agreement), the Trustee shall present and surrender the Underlying
Certificate to which such notice applies for final payment thereon in accordance
with the terms and conditions of the related Pooling and Servicing Agreement and
such Notice of Final Distribution. The Trustee shall, upon receipt, promptly
deposit in the Certificate Account the final distribution received upon
presentation and surrender of any Underlying Certificate.
Section 3.03. Establishment of Certificate Account; Deposits in
Certificate Account.
(a) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more accounts (collectively, the "Certificate
Account"), each of which shall be an Eligible Account, entitled "The First
National Bank of Chicago, in trust for the registered holders of DLJ Mortgage
Acceptance Corp. Class A-1 Principal Only Certificates, Series 1999-A" held in
trust
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by the Trustee for the benefit of the Certificateholders. The Trustee shall
cause the following payments and collections in respect of the Underlying
Certificates to be deposited directly into the Certificate Account:
(i) all distributions received on the Underlying Certificates
subsequent to the Closing Date;
(ii) any amounts received in connection with the sale of the Underlying
Certificates pursuant to Section 6.01; and
(iii) any other amounts specifically required to be deposited in the
Certificate Account hereunder.
The foregoing requirements for deposit in the Certificate Account shall
be exclusive.
(b) The Trustee may direct, but shall have no obligation to direct, any
institution maintaining the Certificate Account to invest the funds deposited
therein (or, at the direction of the Trustee, the funds may remain uninvested)
by the Trustee in Permitted Investments which shall mature not later than the
Business Day immediately preceding the next Distribution Date (provided that, if
any Permitted Investment constitutes an obligation of the Trustee or a fund
administered by the Trustee, such Permitted Investment may mature on the next
Distribution Date) and shall not be sold or disposed of prior to its maturity.
All such Permitted Investments shall be made in the name of the Trustee or its
nominee, in trust for the Certificateholders and the Trustee. All income and
gain received from any such investment shall be deposited in the Certificate
Account, and may only be withdrawn and applied for the purposes set forth in
Section 3.04 below. The Trustee, in its individual capacity, shall deposit in
the Trustee Certificate Account the amount of any loss incurred in respect of
such Permitted Investments immediately upon the realization of such loss.
Section 3.04. Permitted Withdrawals From the Certificate Account.
The Trustee may from time to time withdraw funds from the Certificate
Account for the following purposes:
(i) to make payments in the amounts and in the manner provided for in
Section 3.05;
(ii) to reimburse the Depositor or the Trustee for expenses incurred by
and reimbursable to the Depositor or the Trustee pursuant to Section 5.05 or
Section 7.03 (except as otherwise provided in such sections) or which are
otherwise specifically reimbursable from the Certificate Account or specifically
an expense of the Trust Fund hereunder;
(iii) to pay itself on each Distribution Date any investment income on
amounts deposited by the Trustee in the Certificate Account; and
15
(iv) to clear and terminate the Certificate Account upon the
termination of this Agreement.
On each Distribution Date, the Trustee shall withdraw all funds from
the Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.04 and in Section
3.05.
Section 3.05. Payments.
(a) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account all Available Funds and the Trustee, or the Paying Agent
appointed by the Trustee, shall pay such Available Funds to the Holders of the
Certificates. Distributions on the Certificates shall be made solely from
Available Funds.
(b) All payments made with respect to the Certificates on any
Distribution Date shall be allocated pro rata among the Outstanding Certificates
based upon their respective Percentage Interests. Payments to the
Certificateholders on each Distribution Date will be made to the
Certificateholders of record in the Certificate Register on the related Record
Date. Payments to any Certificateholder on any Distribution Date shall be made
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have so notified the Trustee or the
Paying Agent in writing at least five Business Days prior to the related Record
Date (which notification shall need to be made only once) and if such
Certificateholder is the registered owner of Certificates with an aggregate
Percentage Interest equivalent to an initial Certificate Principal Balance of
not less than $2,500,000. Otherwise payments to any Certificateholder on any
Distribution Date shall be made by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register. Final
payment on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
(c) Except as otherwise provided in Section 6.01, whenever the Trustee
expects that the final payment with respect to the Certificates will be made on
the next Distribution Date, no later than three Business Days after receipt by
the Trustee of notice of the final distribution on the last of the Underlying
Certificates remaining outstanding, the Trustee shall mail to each Holder on
such date of the Certificates a notice to the effect that the Trustee expects
that the final payment with respect to the Certificates will be made on such
Distribution Date the ("Final Distribution Date") but only upon presentation and
surrender of such Certificates at the office of the Trustee therein specified.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Termination Date, the Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Final
Distribution Date pursuant to Section 3.05(a). Any funds not
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distributed on such Final Distribution Date because of the failure of any
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the appropriate non-tendering Certificateholders. If
any Certificates as to which notice has been given pursuant to this Section
3.05(c) 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 Certificateholders, at their last addresses shown in the Certificate
Register, to surrender their Certificates for cancellation in order to receive,
from such funds held, the final payment with respect thereto. If within one year
after the second notice any Certificate shall not have been surrendered for
cancellation, the Trustee shall directly or through an agent, take reasonable
steps to contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall pay to the Depositor all amounts
distributable to the Holders thereof and the Depositor shall thereafter
segregate and hold such amounts uninvested for the benefit of such Holders. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificates
for final payment thereof in accordance with this Section 3.05(c).
Notwithstanding the foregoing, if the escheat or unclaimed property laws of any
applicable jurisdiction provide for different procedures with respect to such
unclaimed amounts, the Trustee shall abide by such different procedures to the
extent necessary to comply with such laws.
Section 3.06. Statements to Certificateholders.
Within three (3) Business Days after each Distribution Date, the
Trustee shall prepare, and shall forward by mail, a statement to each
Certificateholder and to the Depositor stating:
(i) the Available Funds for such Distribution Date;
(ii) with respect to such Distribution Date, the aggregate
amount of principal paid to the Holders of the Certificates on such Distribution
Date;
(iii) the aggregate Certificate Principal Balance of the
Certificates after giving effect to payments of principal and allocations of the
principal portions of Underlying Certificate Realized Losses in respect of the
Certificates on such Distribution Date;
(iv) the respective Underlying Principal Balances of the
Underlying Certificates as of the Underlying Remittance Date immediately
preceding such Distribution Date, after giving effect to the distributions and
the allocations of Underlying Certificate Realized Losses made in respect
thereof on such Underlying Remittance Date based solely on information contained
in the Underlying Remittance Date Statements or otherwise provided to the
Trustee in its capacity as Underlying Certificateholder;
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(v) the aggregate amount of any Underlying Certificate
Realized Losses allocated to the Certificates on such Distribution Date and any
related reductions in the aggregate Certificate Principal Balance thereof for
such Distribution Date;
(vi) the amount of the Trustee Fees received by the Trustee
for such Distribution Date and the amounts of any previously unpaid Trustee Fees
received by the Trustee subsequent to the preceding Distribution Date; and
(vii) the aggregate of the amounts on deposit in the Trustee
Fee Account after giving effect to deposits therein and withdrawals therefrom
with respect to such Distribution Date.
In the case of the information furnished pursuant to clause (ii) above,
the amounts shall also be expressed as a dollar amount per Single Certificate.
For purposes of clause (ii) above and for all other purposes in this Agreement,
the aggregate amount of principal paid to the Holders of the Certificates shall
be deemed to be equal to amounts received in respect of principal on the
Underlying Certificates, as reduced by any permitted reimbursements made from
the Certificate Account to the extent allocated under Section 3.04 to amounts
therein received in respect of principal on the Underlying Certificates.
In addition, the Trustee promptly will furnish to Certificateholders
and the Depositor copies of any notices, statements, reports or other
communications (other than the Underlying Remittance Date Statements for each
Underlying Remittance Date) received by the Trustee as the Underlying
Certificateholder. Upon written request of any Certificateholder, the Trustee
will furnish to such Certificateholder, at such Certificateholder's expense,
copies of any Underlying Remittance Date Statements requested by such
Certificateholder, to the extent such Underlying Remittance Date Statements have
been received by the Trustee.
On or before March 31 of each calendar year, beginning with calendar
year 2000, the Trustee shall prepare, or cause to be prepared, and deliver, or
cause to be delivered, by first class mail to each Person who at any time during
the previous calendar year was a Certificateholder of record a statement
containing the information required to be contained in the regular monthly
report to Certificateholders, as set forth in clause (ii) above aggregated for
such calendar year or the 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 3.07. Access to Certain Documentation and Information.
The Trustee shall provide to the Certificateholders access to the
Underlying Certificates (or, in the case of Underlying Certificates in
book-entry form, the related records) and all reports, documents and records
maintained by the Trustee in respect of its duties hereunder, such access
18
being afforded without charge but only upon reasonable written request and
during normal business hours at offices designated by the Trustee.
Section 3.08. Allocation of Underlying Certificate Realized Losses.
Prior to each Distribution Date, the Trustee shall determine the total
amount of Underlying Certificate Realized Losses, if any, that were allocated to
any Underlying Certificate as of the immediately preceding Underlying Remittance
Date, as evidenced by the related Underlying Remittance Date Statement. All
Underlying Certificate Realized Losses shall be allocated on a pro rata basis
among the Certificates then outstanding based on their respective Percentage
Interests. Any allocation of the principal portion of Underlying Certificate
Realized Losses to any Certificates 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).
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
(a) The Certificates will be substantially in the form annexed hereto
as Exhibit A. The Certificates will be issuable in Percentage Interests
equivalent to initial Certificate Principal Balances of not less than $1,000 and
integral multiples of $1 in excess thereof, except that one Certificate may be
issued in an amount evidencing the sum of an otherwise authorized denomination
thereof and the remainder of the aggregate initial Certificate Principal Balance
of the Certificates, or in the amount of such remainder.
The Certificates shall, on original issue, be executed and
authenticated by the Trustee, not in its individual capacity but solely as
Trustee. The Certificates shall be executed by manual signature on behalf of the
Trustee in its capacity as trustee hereunder by an authorized officer of the
Trustee. Certificates bearing the manual 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 duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
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(b) The Depository, the Depositor and the Trustee have entered into a
Depository Agreement dated as of [April 30], 1999 (the "Depository Agreement").
Except as provided in paragraph (c) below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Book-Entry Certificates may not be
transferred as provided in Section 4.02 except to a successor to the Depository;
(ii) ownership and transfers of registration of the Book-Entry Certificates on
the books of the Depository shall be governed by applicable rules established by
the Depository; (iii) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (iv) the Trustee shall
deal with the Depository, Depository Participants and Indirect Participants as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of such Holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different Certificate
Owners; and (v) the Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
Indirect Participants and persons shown on the books of such Indirect
Participants as direct or indirect Certificate Owners. The Depository Agreement
provides that the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Certificates.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book- Entry Certificates of Certificate Owners
it represents or of brokerage firms for which it acts as agent in accordance
with the Depository's normal procedures.
(c) If (i)(A) the Depository advises the Depositor or the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository and (B) the Trustee or the Depositor are
unable after exercise of their reasonable best efforts 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, fully
registered Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository for registration and receipt by the Trustee, of
an adequate supply of certificates from the Depositor, the Trustee shall issue
the Definitive Certificates based on information received from the Depository.
Neither the Depositor nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions.
Section 4.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
this Section 4.02 a certificate register (the
20
"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. The Trustee
is initially appointed certificate registrar (the "Certificate Registrar") for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided. The Certificate Registrar (if not the Trustee)
shall provide the Trustee with a certified list of Certificateholders as of each
Record Date prior to the Distribution Date. Upon satisfaction of the conditions
set forth below, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of a like aggregate Percentage
Interest. In addition, the Trustee shall notify the Depositor of every proposed
transfer or exchange of the Certificates.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like aggregate
Percentage Interest, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for exchange
the Trustee shall execute and the Certificate Registrar shall 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 form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(c) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(d) All Certificates surrendered for transfer and exchange shall be
canceled and retained or destroyed by the Trustee in accordance with the
Trustee's standard procedures.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Percentage Interest. 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 and the Certificate Registrar) connected therewith.
Any replacement Certificate issued pursuant to this Section shall constitute
complete
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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 4.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Certificate Registrar and any agent of
the Depositor, the Trustee or the Certificate Registrar may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving payments pursuant to Section 3.05 and for all other
purposes whatsoever, and neither the Depositor, the Trustee, the Certificate
Registrar nor any agent of the Depositor, the Trustee or the Certificate
Registrar shall be affected by notice to the contrary except as provided in this
Article IV.
Section 4.05. Appointment of Paying Agent.
The Trustee initially shall be the Paying Agent. The Trustee may
appoint a Paying Agent for the purpose of making payments to Certificateholders
pursuant to Section 3.05. In the event of any such appointment, on or prior to
each Distribution Date the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to Certificateholders in
the amounts and in the manner provided for in Section 3.05, such sum to be held
in trust by the Paying Agent on behalf of the Trustee for the benefit of
Certificateholders.
The Trustee shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Any sums so held by such Paying Agent shall be held only in
Eligible Accounts to the extent such sums are not distributed to the
Certificateholders on the date of receipt by such Paying Agent. Such instrument
shall provide that the Trustee shall have the right to terminate the Paying
Agent at any time without cause.
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of Trustee.
(a) 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 and, if they do not, shall request
the Person delivering such documents to correct them. The Trustee shall notify
the Certificateholders of any such documents which do not materially conform to
the requirements of
22
this Agreement in the event that the Trustee, after so requesting, does not
receive satisfactorily corrected documents or a satisfactory explanation
regarding any such nonconformities.
The Trustee shall forward or cause to be forwarded in a timely
fashion the notices, reports and statements required to be forwarded by the
Trustee pursuant to Sections 3.02, 3.06, 5.14, 5.15 and 6.01. The Trustee
covenants and agrees that it shall perform its obligations hereunder in a manner
so as to maintain the status of the Trust Fund as a grantor trust under subpart
E, Part I of subchapter J of the Code and not as an association taxable as a
corporation, as a taxable mortgage pool, or as a partnership and to prevent the
imposition of any federal, state or local income 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.
(b) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates, opinions or other documents (including, but not limited
to, all Underlying Remittance Date Statements) reasonably believed by the
Trustee to be genuine and to have been furnished by the proper party to the
Trustee and which on their face, do not contradict 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 Certificateholders holding Certificates which
evidence Percentage Interests aggregating not less than 25% as to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) No provision in this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties as Trustee hereunder, or in
the exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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Section 5.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 5.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, 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;
(ii) The Trustee may consult with counsel of its selection and
the advice or 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 with the advice or such Opinion of
Counsel;
(iii) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(iv) The Trustee shall not (i) be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement or (ii) answerable or accountable under any circumstance
except for its own willful misfeasance, bad faith or negligence in the
performance of, or by reason of its reckless disregard of, its obligations and
duties under this Agreement; and
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care
hereunder.
Section 5.03. Trustee Not Liable for Certificates or Underlying
Certificates.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Underlying Certificates) shall be taken as the statements of the Depositor and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of the
Certificates (except that the Certificates shall be duly and validly executed
and authenticated by the Certificate Registrar) or of the Underlying
Certificates or of any related
24
document. Except as otherwise provided herein, the Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates.
Section 5.04. 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, subject to the restrictions set forth in the definition of
Certificateholder herein.
Section 5.05. Trustee's Fees; Indemnification.
The Trustee shall, subject to the terms hereof, be entitled to the
Trustee Fee for each Distribution Date as compensation for all services rendered
by the Trustee and any co-trustee in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee and any co-trustee. The Trustee Fee for each Distribution Date shall
be paid from amounts on deposit in the Trustee Fee Account. Such compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust. The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust Fund and held harmless
against any claim, loss, liability or expense incurred in connection with any
claim or legal action or any pending or threatened claim or legal action
relating to this Agreement or the Certificates, or any claim or legal action or
any pending or threatened claim or legal action relating to the performance of
the Trustee's duties hereunder, other than any claim, loss, liability or expense
(i) that constitutes a liability of the Trustee under Section 3.03(b) of this
Agreement or (ii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's obligations and duties under this
Agreement or as a result of the reckless disregard of the Trustee's obligations
and duties under this Agreement. The provisions of this Section 5.05 shall
survive the resignation or removal of the trustee and termination of this
Agreement.
Section 5.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national
banking association having its Corporate Trust Office in the City of New York or
in a state and city acceptable to the Depositor and organized and doing business
under the laws of such state or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
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 5.07.
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Section 5.07. Resignation and Removal of the Trustee.
(a) The Trustee may upon 30 days' notice resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 5.06 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) The Holders of Certificates entitled to at least 66 2/3% 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 Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 5.08 or on such date as is determined by any court petitioned pursuant
to Section 5.07(a).
Section 5.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 5.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee 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 Underlying Certificates and
related documents and statements held by it hereunder, and the Depositor, the
Trustee 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.
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(b) 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 5.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
Section 5.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to all or substantially
all of the corporation trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation or national banking association
shall be eligible under the provisions of Section 5.06, 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. The Trustee shall mail notice
of any such merger or consolidation to the Certificateholders at their address
as shown in the Certificate Register.
Section 5.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Trustee 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 5.10, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 5.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 5.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 5.10, 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
a successor to the Trustee hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts,
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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.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article V. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee 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.
(e) No co-trustee or separate trustee hereunder shall be liable by
reason of any omission of the Trustee, or any other such trustee hereunder and
the Trustee shall not be liable by reason of any act or omission of any
co-trustee or other such separate trustee hereunder.
Section 5.11. Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York
where Certificates may be surrendered for registration of transfer or exchange.
The Trustee initially designates its offices located at the Corporate Trust
Office for the purpose of keeping the Certificate Register. The Trustee will
maintain an office at the address stated in Section 9.05 hereof where notices
and demands to or upon the Trustee in respect of this Agreement may be served.
Section 5.12. Trustee Fee Account.
(a) The Trustee, for the benefit of the Certificateholders and itself,
shall establish and maintain one or more accounts (collectively, the "Trustee
Fee Account"), each of which shall be an Eligible Account, entitled "The First
National Bank of Chicago, in trust for the registered holders of DLJ Mortgage
Acceptance Corp. Class A-1 Principal Only Certificates, Series 1999-A, and for
The First National Bank of Chicago, as Trustee" held in trust by the Trustee for
the benefit of the Certificateholders and itself. The Trustee Fee Account shall
not be considered part of the Trust Fund. The Depositor shall cause the sum of
$84,000.00 to be deposited in the Trustee Fee Account on the Closing Date:
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(b) The Trustee may from time to time withdraw funds from the Trustee
Fee Account for the following purposes:
(i) to pay itself on any Distribution Date any Trustee Fee
for such Distribution Date; and
(ii) to pay itself upon the termination of the Trust Fund any
amounts remaining on deposit therein.
(c) The Trustee may direct, but shall have no obligation to direct, any
institution maintaining the Trustee Fee Account (including itself) to invest the
funds (or the Trustee may direct that the funds remain uninvested) deposited
therein by the Trustee in Permitted Investments which shall mature not later
than the Business Day immediately preceding the next Distribution Date (except
that, any investment in the institution with which the Trustee Fee Account is
maintained may mature on such Distribution Date) and shall not be sold or
disposed of prior to its maturity. All such Permitted Investments shall be made
in the name of the Trustee or its nominee, in trust for the Certificateholders
and the Trustee. All income and gain received from any such investment shall be
deposited in the Trustee Fee Account, and may only be withdrawn and applied for
the purposes set forth in Section 5.12(b) above. The Trustee, in its individual
capacity, shall deposit in the Trustee Fee Account the amount of any loss
incurred in respect of such Permitted Investments immediately upon realization
of such loss.
Section 5.13. Compliance with Withholding Requirements.
Notwithstanding any other provisions of this Agreement, the Trustee
shall comply with all federal withholding requirements with respect to payments
to Certificateholders. The consent of Certificateholders shall not be required
for any such withholding. In the event the Trustee withholds any amount from any
Certificateholder pursuant to federal withholdings requirements, the Trustee
shall indicate to such Certificateholder the amount so withheld.
Section 5.14. Grantor Trust Reporting.
The Trustee shall furnish or cause to be furnished to Holders of
Certificates and shall file or cause to be filed with the Internal Revenue
Service, together with Form 1041 or such other form as may be applicable, such
information with respect to the income and deductions of the Trust Fund at the
time or times and in the manner required by the Code, including such other
customary factual information as is available to the Trustee to enable
Certificateholders to prepare their tax returns, including information required
with respect to computing the accrual of original issue and market discount;
provided, that the Trustee shall not be required to recompute any such
information received with respect to the Underlying Certificates, but shall be
deemed to satisfy its obligation under this Section 5.14 by furnishing to each
Holder its pro rata share of the information so received.
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Section 5.15. 1934 Act Reports.
(a) The Trustee shall, on behalf of the Trust, make all filings
("Periodic Reports") required to be made by the Depositor or the Trust with
respect to the Certificates pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(b) Within 30 days after the beginning of the first fiscal year during
which the Trust's obligation to file Periodic Reports pursuant to the Exchange
Act shall have been suspended, the Depositor may prepare, or cause to be
prepared, a notice on Commission Form 15 ("Form 15") and is hereby authorized to
and shall execute such Form 15 on the Trust's behalf; provided, however, that
the Depositor shall be under no obligation to prepare such notice if the number
of Certificateholders exceeds 300. The Depositor shall file any notice on Form
15 with the Commission in accordance with the provisions of Rule 15d-6 under the
Exchange Act.
ARTICLE VI
TERMINATION
Section 6.01. Termination.
(a) Subject to Section 6.02, the respective obligations and
responsibilities of the Depositor and the Trustee created hereby with respect to
the Certificates (other than the obligation to make certain payments and to send
certain notices to Certificateholders as hereinafter 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 earliest to
occur of (i) the optional purchase by the Trustee (which purchase shall be made
on a Distribution Date) of all of the Underlying Certificates and other assets
remaining in the Trust Fund at the Termination Price, (ii) the optional
termination of the Trust Fund by the Trustee and the distribution of the assets
thereof in kind to the Certificateholders, and (iii) the last action required to
be taken by the Trustee on the Termination Date pursuant to this Article VI
following receipt of the final distribution to be made on the last remaining
Underlying Certificate in the Trust Fund upon presentation and surrender of such
Underlying Certificate in accordance with the terms and conditions of the
related Pooling and Servicing Agreement; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of twenty-one
years from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the United Kingdom, living on the
date hereof.
The right of the Trustee to purchase all of the Underlying Certificates
pursuant to clause (i) above shall be conditioned upon the aggregate of the
Underlying Principal Balances of such Underlying Certificates at the time of any
such repurchase being less than 5% of the aggregate of the Underlying Principal
Balances of the Underlying Certificates at the Closing Date.
30
The "Termination Price" shall be equal to the greater of (x) 100% of
the aggregate Certificate Principal Balance of the Certificates and (y) the Fair
Market Value of such Underlying Certificates.
In addition to the foregoing, if at any time the condition in clause
(B) above is applicable, in lieu of purchasing the Underlying Certificates and
other assets of the Trust Fund, the Trustee at its option may terminate the
Trust Fund and distribute such assets in kind to the Certificateholders on a pro
rata basis pursuant to clause (ii) above subject to the following conditions
upon 15 days prior written notice to each Certificateholder. In connection with
such termination and distribution, either (a) the Trustee shall cause to be
delivered to or registered in the name of each Certificateholder a separately
registered percentage interest (or other applicable form of denomination) in
each of the then outstanding Underlying Certificates, in each case allocated
among the Certificateholders on the basis of the Percentage Interests evidenced
by their respective Certificates, or (b) the manner of allocation of the
Underlying Certificates among the Certificateholders shall be approved in
writing by all Certificateholders. Any such distribution in kind to any
Certificateholder shall only be made upon surrender of such holder's Certificate
to the Trustee for cancellation.
The Trustee shall have no obligation to exercise its right to purchase
the Underlying Certificates as provided in clause (i) of the first paragraph of
this Section or to exercise its right to effect early termination of the Trust
Fund as provided in clause (ii) of the first paragraph of this Section and shall
have no liability to the Certificateholders as a result of any exercise of such
right or any failure to exercise either such right.
(b) The Trustee shall give notice (a "Notice of Termination") as soon
as practicable of the Distribution Date on which the Trustee anticipates that
the final payment will be made to the Certificateholders. Notice of any
termination of the Trust Fund pursuant to this Section 6.01 shall be mailed by
the Trustee to affected Certificateholders at their addresses shown in the
Certificate Register as soon as practicable after the Trustee shall have issued
a Notice of Termination but in any event, not more than thirty days prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the
final payment is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final payment, if known;
and
(iii) state that the final payment to Certificateholders will
be made only upon presentation and surrender of Certificates at the office of
the Trustee therein specified.
If the Trust Fund is not terminated on the Anticipated Termination Date
for any reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
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(c) Upon presentation and surrender of the Certificates by the
Certificateholders on the Termination Date, the Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Distribution Date
pursuant to Section 3.05(a). Any funds not distributed on the Termination Date
because of the failure of any Certificateholders to tender their Certificates
shall be set aside and held in trust for the account of the appropriate
non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If
any Certificates as to which notice of the Termination Date has been given
pursuant to this Section 6.01 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 Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates for
cancellation in order to receive, from such funds held, the final payment with
respect thereto. If within one year after the second notice any Certificate
shall not have been surrendered for cancellation, the Trustee shall directly or
through an agent, take reasonable steps to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining such funds and of contacting Certificateholders shall be
paid out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Trustee shall pay to the Depositor all amounts distributable to the Holders
thereof and the Depositor shall thereafter segregate and hold such amounts
uninvested for the benefit of such Holders. No interest shall accrue or be
payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 6.01. Notwithstanding the foregoing, if
the escheat or unclaimed property laws of any applicable jurisdiction provide
for different procedures with respect to such unclaimed amounts, the Trustee
shall abide by such different procedures to the extent necessary to comply with
such laws.
ARTICLE VII
THE DEPOSITOR
Section 7.01. Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the extent
of the respective obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 7.02. Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation or association
under the laws of the jurisdiction of its incorporation, and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement and the Certificates and to
perform its duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or
32
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.
Section 7.03. Limitation on Liability of the Depositor.
Neither the Depositor, nor any of the directors, officers, employees or
agents of the Depositor, 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. The
Depositor, and any director, officer, employee or agent of the Depositor may
rely in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor and any director, officer, employee or agent of the Depositor
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
incurred by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties hereunder. The Depositor shall be under no obligation to appear in,
prosecute or defend any legal action unless such action is related to its duties
under this Agreement and which in its opinion does not involve it in any expense
or liability; provided, however, that the Depositor may in its 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, and provided that
such action has been consented to by the Holders of Certificates entitled to at
least 51% of the Voting Rights, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor shall be entitled to be reimbursed therefor
from the Certificate Account as provided in Section 3.04.
ARTICLE VIII
[intentionally omitted]
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement may be amended from time to time by the Depositor
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
33
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).
(b) This Agreement may also be amended from time to time by the
Depositor, and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of the
Certificates 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 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 interest of
the Holders of Certificates in a manner other than as described in clause (i)
hereof without the consent of Holders of Certificates evidencing Percentage
Interests aggregating not less than 66%; or
(iii) reduce the aforesaid percentage of Certificates the
Holders of which are required to consent to any such amendment, in any such case
without the consent of the Holders of all Certificates then outstanding.
(c) 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 (at the expense of the party seeking
such amendment) to the effect that (i) such amendment or the exercise of any
power granted to the Depositor or the Trustee in accordance with such amendment
will not result in the imposition of a tax on the Trust Fund or cause the Trust
Fund to fail to be classified as a grantor trust under subpart E, Part I of
subchapter J of the Code and (ii) that such amendment is authorized or permitted
by the terms of this Agreement.
(d) Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 9.01 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. The cost of an Opinion
of Counsel delivered pursuant to this Section 9.01 shall be an expense of the
party requesting such amendment, but in any case shall not be an expense of the
Trustee.
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(e) 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 9.02. Counterparts.
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 9.03. Limitation on Rights of Certificateholders.
(a) 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.
(b) 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.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a notice of a default by the
Depositor 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 33% 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 the Trustee 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.
35
Section 9.04. 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 9.05. Notices.
All demands and notices hereunder shall be in writing and shall be
deemed effective upon receipt when delivered to (a) in the case of the
Depositor, DLJ Mortgage Acceptance Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxx, Senior Vice President, or such other address as
may hereafter be furnished to the Trustee in writing by the Depositor, (b) in
the case of the Trustee, The First National Bank of Chicago, Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Global Corporate Trust Services,
or such other address as may hereafter be furnished to the Depositor in writing
by the Trustee, and (c) in the case of the Rating Agency, Fitch IBCA, Inc., c/o
Fitch Information Services, Inc., 0000 X. 0xx Xxxxxx, Xxxxxx, Xxxxxxx 00000, or
such other address as may hereafter be furnished to the Depositor and the
Trustee in writing by the Rating Agency. 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 9.06. Notices to Rating Agency.
The Trustee shall notify the Rating Agency at such time as it is
otherwise required pursuant to this Agreement to give notice of the occurrence
of any of the events described in clauses (a), (b), (d), (e) or (f) below or
provide a copy to the Rating Agency at such time as otherwise required to be
delivered pursuant to this Agreement of the statements described in clause (c)
below:
(a) a material change or amendment to this Agreement;
(b) the resignation or removal of the Trustee or the appointment
of a successor Trustee or a change in the majority ownership of the Trustee;
(c) the statement required to be delivered to the Holders of the
Certificates pursuant to Section 3.06;
(d) a change in the location of the Certificate Account or the
Trustee Fee Account;
(e) the occurrence of the Final Distribution Date; and
(f) the repurchase of any Underlying Certificate.
36
Section 9.07. 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 9.08. Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders.
Section 9.09. 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.
[SIGNATURE PAGE FOLLOWS]
37
IN WITNESS WHEREOF, the Depositor, and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly authorized
and their respective seals, if required, duly attested, to be hereunto affixed,
all as of the day and year first above written.
DLJ MORTGAGE ACCEPTANCE CORP.,
as Depositor
By:__________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:__________________________________________
Name:
Title:
38
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ MORTGAGE
ACCEPTANCE CORP. ("DLJMAC") OR THE TRUSTEE REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE UNDERLYING CERTIFICATES, NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY DLJMAC, THE TRUSTEE OR BY
ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE WILL NOT BE ENTITLED TO PAYMENT OF INTEREST.
Series 1999-A Initial Certificate Principal
Balance: $13,128,498
Percentage Interest: 100.00%
Date of Trust Agreement and Closing Date: Trustee: The First National Bank of Chicago
April 30, 1999
Depositor: DLJ Mortgage Acceptance Corp. First Distribution Date: May 28, 1999
No. 1 CUSIP: 23321P 3W6
CERTIFICATE
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of mortgage securities sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund
and does not represent an obligation of or interest in the Depositor, the
Trustee or any of their respective affiliates. This Certificate is not
guaranteed or insured by any governmental agency or instrumentality or by the
Depositor, the Trustee or any of their respective affiliates.
Unless this Certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all of the Certificates in
the Trust Fund, which consists primarily of mortgage securities (the "Underlying
Certificates") sold by the Depositor specified above (which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Trust Agreement dated the date specified above (the
"Agreement") between the Depositor, as depositor, and the Trustee specified
above, as trustee, a summary of certain of the pertinent provisions of which is
set forth below. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned thereto 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.
Pursuant to the terms of the Agreement, the Trustee will pay or cause
to be paid on the third Business Day following the latest Underlying Remittance
Date of each calendar month (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a business day, the business day immediately preceding such last day) of the
month next preceding the month of the related Distribution Date (the "Record
Date"), from the Available Funds an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
paid to the Holders of all of the Certificates on such Distribution Date.
Reference is hereby made to the further provisions of this Certificate and the
Agreement specified herein, which further provisions shall for all purposes have
the same effect as though fully set forth at this place.
A-2
All payments 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 at least five Business Days prior to the related Record Date (which
notification shall need to be made only once) and such Certificateholder is the
registered holder of Certificates the aggregate Percentage Interest of which is
equivalent to an aggregate initial Certificate Principal Balance of not less
than $2,500,000, in immediately available funds by wire transfer to the account
of such Person at a bank or other entity having appropriate facilities therefor.
Notwithstanding the above, the final payment on this Certificate will be made
after due notice by the Trustee of the pendency of such payment 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 payments
allocable to principal and the principal portions of any losses allocable
hereto.
This Certificate is one of a duly authorized issue of certificates
designated as Certificates of the series specified above (herein collectively
called the "Certificates"). The Certificates are limited in right of payment to
certain distributions in respect of the Underlying Certificates, all as more
specifically set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Certificate Account
created for the benefit of Certificateholders may be made by the Trustee from
time to time for purposes other than payments to Certificateholders, such
purposes including reimbursement to the Depositor and the Trustee of certain
expenses incurred by each of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor and the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor and the Trustee with the consent of the
Holders of Certificates evidencing in the aggregate not less than 66% of the
Percentage Interests of the Certificates. 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 here for 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 and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
A-3
The Certificates are issuable 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 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 Trustee and the Certificate Registrar and any agent
of the Depositor, the Trustee or the Certificate Registrar may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
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 receipt of the
final distribution to be made on the last remaining Underlying Certificate in
the Trust Fund. The Agreement permits, but does not require, the Trustee to
purchase all of the Underlying Certificates from the Trust Fund at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Underlying Principal Balance of the Underlying Certificates at
the time of purchase being less than 5% of the aggregate Underlying Principal
Balance of the Underlying Certificates at the Closing Date.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, 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 statements of the
Depositor or the Trustee, as the case may be.
A-4
IN WITNESS WHEREOF, the Trustee in its capacity as trustee under the
Agreement has caused this Certificate to be duly executed.
Dated: THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
By:_______________________________
Authorized Officer
A-5
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 Certificate and hereby
authorizes the registration of transfer of such interest to the above-named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like denomination to the above named assignee and deliver such
Certificate(s) 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.
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payments shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________ for the account of __________________
account number __________, or, if mailed by check, to _________________.
Applicable statements should be mailed to ____________________. This information
is provided by ___________________________, the assignee named above, or
____________________________________________, as its agent.
A-6
EXHIBIT B
UNDERLYING CERTIFICATE SCHEDULE
1. ABN AMRO Mortgage Corporation., Multi-Class Mortgage Pass-Through
Certificates, Series 1998-1, Class IIA-P, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $333,045 and issued pursuant
to a Pooling and Servicing Agreement, dated as of March 1, 1998 among
ABN AMRO Mortgage Corporation, as Depositor, LaSalle Home Mortgage
Corporation, as Servicer, and Chase Bank of Texas, N.A., as Trustee;
2. ABN AMRO Mortgage Corporation, Multi-Class Mortgage Pass-Through
Certificates, Series 1998-2, Class IIA-P, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $352,210 and issued pursuant
to a Pooling and Servicing Agreement, dated as of June 1, 1998 among
ABN AMRO Mortgage Corporation., as Depositor, LaSalle Home Mortgage
Corporation, as Servicer and Chase Bank of Texas, National Association,
as Trustee;
3. BA Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1998-1, Class II-PO, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $350,133 and issued pursuant to a
Pooling and Servicing Agreement, dated as of April 1, 1998 among BA
Mortgage Securities, Inc., as Depositor, Bank of America, FSB as Master
Servicer and Bankers Trust Company of California, N.A., as Trustee;
4. BA Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1998-2, Class II-PO, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $148,157 and issued pursuant to a
Pooling and Servicing Agreement, dated as of May 1, 1998 among BA
Mortgage Securities, Inc., as Depositor, Bank of America, FSB as Master
Servicer and Bankers Trust Company of California, N.A., as Trustee;
5. CWMBS, Inc., Mortgage Pass-Through Certificates, Series 1993-D, Class
PO, evidencing a Percentage Interest of 5.0746784677% in such mortgage
pass-through certificates, having an initial Underlying Principal
Balance of $289,240 and issued pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 1993 among CWMBS, Inc., as
Depositor, Countrywide Mortgage Conduit, Inc., as Seller and Master
Servicer and The Bank of New York, as Trustee;
6. FBS Mortgage Corporation, Mortgage Pass-Through Certificates, Series
1993-C, Class A-11, evidencing a Percentage Interest of 100.00% in such
mortgage pass-through certificates, having an initial Underlying
Principal Balance of $3,312,230 and issued pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 1993 among FBS Mortgage
Corporation, as Seller and Master Servicer, First Trust National
Association, as Custodian and Firstar Bank Milwaukee, N.A. as Trustee;
7. GE Capital Mortgage Services, Inc., REMIC Multi-Class Pass-Through
Certificates, Series 1996-17, Class 2-PO, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates,
B-1
having an initial Underlying Principal Balance of $189,411 and issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1,
1996 among GE Capital Mortgage Services, Inc., as Seller and Servicer
and State Street Bank and Trust Company, as Trustee;
8. HomeSide Mortgage Securities, Inc., Multi-Class Mortgage Pass-Through
Certificates, Series 1998-2, Class IIA-P, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $112,962 and issued pursuant
to a Pooling and Servicing Agreement, dated as of May 1, 1998 among
HomeSide Mortgage Securities Corporation, as Depositor, HomeSide
Lending, Inc., as Servicer and Norwest Bank Minnesota, National
Association, as Trustee;
9. Nationsbanc Xxxxxxxxxx Funding Corp. Mortgage Pass-Through
Certificates, Series 1998-5, Class A-PO, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $215,029 and issued pursuant
to a Pooling and Servicing Agreement, dated as of December 1, 1999
among Nationsbanc Xxxxxxxxxx Funding Corp., as Depositor, Nationsbanc
Mortgage Corporation and Bank of America FSB, as Servicers, and Norwest
Bank Minnesota, National Association, as Trustee;
10. Norwest Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 1997-1, Class A-PO, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $1,873,162 and issued
pursuant to a Pooling and Servicing Agreement, dated as of January 23,
1997 among Norwest Asset Securities Corporation, First Union National
Bank of North Carolina, as Trust Administrator, Norwest Bank, as Master
Servicer and Firstar Trust Company, as Trustee;
11. Norwest Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 1997-5, Class A-PO, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $1,021,549 and issued
pursuant to a Pooling and Servicing Agreement, dated as of March 20,
1997 among Norwest Asset Securities Corporation, First Union National
Bank of North Carolina, as Trust Administrator, Norwest Bank, as Master
Servicer and Firstar Trust Company, as Trustee;
12. Norwest Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 1997-9, Class A-PO, evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $805,766 and issued pursuant
to a Pooling and Servicing Agreement, dated as of June 18, 1997 among
Norwest Asset Securities Corporation, First Union National Bank of
North Carolina, as Trustee and Norwest Bank, as Master Servicer;
13. The Prudential Home Mortgage Securities Company, Inc., Mortgage
Pass-Through Certificates, Series 1994-24, Class A-P, evidencing a
Percentage Interest of 100.00% in such mortgage pass-through
certificates, having an initial Underlying Principal Balance of
$719,033 and issued pursuant to a Pooling and Servicing Agreement,
dated as of March 9, 1994 among The Prudential Home Mortgage Securities
Company, Inc., as Seller, Prudential Home Mortgage Company, as Servicer
and First Trust National Association, as Trustee;
14. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1996-4, Class I-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $336,248 and issued pursuant to a
Pooling and Servicing
B-2
Agreement, dated as of December 1, 1996 among PNC Mortgage Securities
Corp., as Depositor and Master Servicer and First Bank National
Association, as Trustee;
15. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1997-3, Class I-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $129,474 and issued pursuant to a
Pooling and Servicing Agreement, dated as of April 1, 1997 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and First
Bank National Association, as Trustee;
16. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1997-4, Class I-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $595,842 and issued pursuant to a
Pooling and Servicing Agreement, dated as of June 1, 1997 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and First
Bank National Association, as Trustee;
17. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1997-8, Class III-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $201,782 and issued pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 1997 among PNC
Mortgage Securities Corp., as Depositor, Master Servicer and
Certificate Administrator, IndyMac as Master Servicer and U.S. Bank
National Association, as Trustee;
18. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-1, Class IV-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $87,050 and issued pursuant to a
Pooling and Servicing Agreement, dated as of January 1, 1998 among PNC
Mortgage Securities Corp., as Depositor, Certificate Administrator and
Master Servicer, IndyMac as Master Servicer and U.S. Bank National
Association, as Trustee;
19. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-2, Class III-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $337,992 and issued pursuant to a
Pooling and Servicing Agreement, dated as of February 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and U.S.
Bank National Association, as Trustee;
20. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-3, Class I-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $228,761 and issued pursuant to a
Pooling and Servicing Agreement, dated as of March 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and U.S.
Bank National Association, as Trustee;
21. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-4, Class IV-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $363,980 and issued pursuant to a
Pooling and Servicing Agreement, dated as of April 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and U.S.
Bank National Association, as Trustee;
B-3
22. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-5, Class III-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $1,250,051 and issued pursuant to a
Pooling and Servicing Agreement, dated as of June 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and U.S.
Bank National Association, as Trustee;
23. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-6, Class III-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $70,472 and issued pursuant to a
Pooling and Servicing Agreement, dated as of July 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and U.S.
Bank National Association, as Trustee;
24. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-8, Class III-P and Class IV-P, evidencing a Percentage
Interest of 100.00% in each such mortgage pass-through certificates,
having an initial Underlying Principal Balance of $364,243 and $3775,
respectively, and issued pursuant to a Pooling and Servicing Agreement,
dated as of September 1, 1998 among PNC Mortgage Securities Corp., as
Depositor and Master Servicer and State Street Bank and Trust Company,
as Trustee;
25. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-9, Class II-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $774,341 and issued pursuant to a
Pooling and Servicing Agreement, dated as of September 1, 1998 among
PNC Mortgage Securities Corp., as Depositor and Master Servicer and
State Street Bank and Trust Company, as Trustee;
26. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-10, Class III-P and Class IV-P, each evidencing a
Percentage Interest of 100.00% in such mortgage pass-through
certificates, having an initial Underlying Principal Balance of
$450,142 and $293,172, respectively and issued pursuant to a Pooling
and Servicing Agreement, dated as of October 1, 1998 among PNC Mortgage
Securities Corp., as Depositor and Master Servicer and State Street
Bank and Trust Company, as Trustee;
27. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-11, Class II-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $37,264 and issued pursuant to a
Pooling and Servicing Agreement, dated as of October 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee;
28. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-12, Class III-P, evidencing a Percentage Interest of
100.00% in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $513,104 and issued pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 1998 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee;
29. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1998-14, Class II-P and Class V-P, each evidencing a Percentage
Interest of 100.00% in such mortgage pass-through certificates, having
an initial Underlying Principal Balance of $380,782 and $25,482,
respectively and issued pursuant to a Pooling and Servicing Agreement,
dated as of December 1, 1998 among PNC
B-4
Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee;
30. PNC Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 1999-1, Class II-P, evidencing a Percentage Interest of 100.00%
in such mortgage pass-through certificates, having an initial
Underlying Principal Balance of $638,866 and issued pursuant to a
Pooling and Servicing Agreement, dated as of January 1, 1999 among PNC
Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee; and
31. Residential Asset Securitization Trust 1996-A10 Mortgage Pass-Through
Certificates, Series 1996- N, Class PO, evidencing a Percentage
Interest of 37.2819568029% in such mortgage pass-through certificates,
having an initial Underlying Principal Balance of $1,913,325 and issued
pursuant to a Pooling and Servicing Agreement, dated as of October 1,
1999 among CWMBS, Inc. as Depositor, Independent National Mortgage
Corporation, as Seller and Master Servicer, and The Bank of New York,
as the Trustee.
B-5
