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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 11, 1996
DLJ MORTGAGE ACCEPTANCE CORP.
(as depositor under a Pooling and Servicing Agreement, dated as of June 1, 1996,
providing for, among other things, the issuance of Mortgage Pass-Through
Certificates, Series 1996-Q6)
DLJ MORTGAGE ACCEPTANCE CORP.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 333-1241 13-3460894
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
277 Park Avenue
NEW YORK, NEW YORK 10005
------------------ -----
(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code, is (212) 504-3000
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<PAGE>
Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
-------------------------------------
For a description of the Certificates and the Mortgage Pool,
refer to the Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
-------------------------------------------------------------------
(a) Not applicable
(b) Not applicable
(c) Exhibits:
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Pooling and Servicing Agreement, dated as
of June 1, 1996, among DLJ Mortgage
Acceptance Corp., as depositor,
Temple-Inland Mortgage Corporation, as
master servicer, and Bankers Trust Company,
as trustee, Mortgage Pass-Through
Certificates, Series 1996-Q6.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
DLJ MORTGAGE ACCEPTANCE CORP.
By:/s/ Paul Najarian
--------------------
Title: Vice President
Dated: July 11, 1996
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION FORMAT
- - ----------- ----------- ------
4.1 Pooling and Servicing Agreement, dated as of June P*
1, 1996, among DLJ Mortgage Acceptance Corp.,
as depositor, Temple-Inland Mortgage Corporation,
as master servicer, and Bankers Trust Company, as
trustee, Mortgage Pass-Through Certificates, Series
1996-Q6.
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* The Mortgage Loan Schedule attached as an exhibit to the Pooling and
Servicing Agreement has been filed on paper pursuant to a continuing
hardship exemption from certain electronic filing requirements.
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DLJ MORTGAGE ACCEPTANCE CORP.,
Depositor,
TEMPLE-INLAND MORTGAGE CORPORATION,
Master Servicer,
and
BANKERS TRUST COMPANY,
Trustee
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1996
---------------------------------
Mortgage Pass-Through Certificates
Series 1996-Q6
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<PAGE>
TABLE OF CONTENTS
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PAGE
ARTICLE I
DEFINITIONS
........................................................................... 2
SECTION 1.01. Defined Terms......................................... 2
Accrued Certificate Interest......................................... 2
Adjustable Rate Loan................................................. 3
Adjustment Date...................................................... 3
Advance ............................................................ 3
Agreement............................................................ 3
Anniversary.......................................................... 3
Assignment........................................................... 3
Assignment Agreement................................................. 3
Available Distribution Amount........................................ 3
Bankruptcy Amount.................................................... 4
Bankruptcy Code...................................................... 4
Bankruptcy Loss...................................................... 4
Book-Entry Certificate............................................... 4
Business Day......................................................... 4
Cash Liquidation..................................................... 5
Certificate.......................................................... 5
Certificate Account.................................................. 5
Certificate Account Deposit Date..................................... 5
Certificateholder" or "Holder........................................ 5
Certificate Owner.................................................... 5
Certificate Principal Balance........................................ 5
Certificate Register................................................. 7
Class ............................................................ 7
Class A-1 Certificate................................................ 7
Class A-1 Percentage................................................. 7
Class A-2 Certificate................................................ 7
Class A-2 Percentage................................................. 7
Class B Certificate.................................................. 7
Class B Certificate Termination Date................................. 7
Class B Percentage................................................... 8
Class B-1 Certificate................................................ 8
Class B-1 Percentage................................................. 8
Class B Prepayment Percentage........................................ 8
Class B-2 Certificate................................................ 8
Class B-2 Percentage................................................. 8
Class R Accrual Amount............................................... 8
Class R Certificate.................................................. 9
i
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PAGE
Class R Percentage................................................... 9
Class SA Certificate................................................. 9
Class SB Accrual Amount.............................................. 9
Class SB Certificate................................................. 9
Closing Date......................................................... 9
Code ............................................................ 9
Collateral Value..................................................... 9
Corporate Trust Office............................................... 9
Custodial Account.................................................... 10
Cut-off Date......................................................... 10
Debt Service Reduction............................................... 10
Deferred Interest.................................................... 10
Deficient Valuation.................................................. 10
Definitive Certificate............................................... 10
Depositor............................................................ 10
Depository........................................................... 10
Depository Participant............................................... 10
Determination Date................................................... 10
Disqualified Organization............................................ 10
Distribution Date.................................................... 11
DLJMCI ............................................................ 11
Due Date ............................................................ 11
Due Period........................................................... 11
Duff & Phelps........................................................ 11
Eligible Account..................................................... 11
Event of Default..................................................... 12
Excess Bankruptcy Loss............................................... 12
Excess Fraud Loss.................................................... 12
Excess Proceeds...................................................... 12
Excess Proceeds Account.............................................. 12
Excess Special Hazard Loss........................................... 12
Extraordinary Events................................................. 12
Extraordinary Losses................................................. 13
FDIC ............................................................ 13
FHLMC ............................................................ 13
First Step Margin.................................................... 13
Fixed Rate Loan...................................................... 13
FNMA ............................................................ 13
Fraud Loss Amount.................................................... 13
Fraud Losses......................................................... 14
Funding Date......................................................... 14
GPARM Loan........................................................... 14
Gross Margin......................................................... 14
High Cost Loan....................................................... 14
Index ............................................................ 14
ii
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PAGE
Initial Certificate Principal Balance................................ 15
Initial Loss Coverage................................................ 15
Insurance Policy..................................................... 15
Insurance Proceeds................................................... 15
Interest Determination Date.......................................... 15
Interim Servicing Agreement.......................................... 15
Interim Servicing Period............................................. 15
Interim Subservicer.................................................. 15
Late Collections..................................................... 15
LIBOR ............................................................ 16
Liquidation Proceeds................................................. 16
Loss Reimbursement Payment........................................... 16
London Business Day.................................................. 16
Loss Severity Percentage............................................. 16
Master Servicer...................................................... 16
Maximum Rate......................................................... 16
Minimum Rate......................................................... 16
Monthly Payment...................................................... 17
Moody's ............................................................ 17
Mortgage ............................................................ 17
Mortgage File........................................................ 17
Mortgage Loan........................................................ 17
Mortgage Loan Accrued Interest....................................... 17
Mortgage Loan Purchase Agreement..................................... 17
Mortgage Loan Schedule............................................... 17
Mortgage Note........................................................ 19
Mortgage Rate........................................................ 20
Mortgaged Property................................................... 20
Mortgagor............................................................ 20
Net Mortgage Rate.................................................... 20
Net Mortgage Rate Cap................................................ 20
Nonrecoverable Advance............................................... 20
Non-United States Person............................................. 20
Notional Amount...................................................... 20
Officers' Certificate................................................ 20
Opinion of Counsel................................................... 21
Original Senior Percentage........................................... 21
OTS ............................................................ 21
Outstanding Class SB Unpaid Interest Amount.......................... 21
Outstanding Mortgage Loan............................................ 21
Ownership Interest................................................... 21
Pass-Through Rate.................................................... 21
Payment Adjustment Date.............................................. 22
Payment Cap.......................................................... 22
Percentage Interest.................................................. 22
iii
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PAGE
Periodic Rate Cap.................................................... 22
Permitted Instruments................................................ 22
Permitted Transferee................................................. 23
Person ............................................................ 23
Prepayment Assumption................................................ 23
Prepayment Interest Shortfall........................................ 23
Prepayment Period.................................................... 24
Primary Hazard Insurance Policy...................................... 24
Principal Prepayment................................................. 24
Prospective Losses................................................... 24
Purchase Price....................................................... 24
Qualified Institutional Buyer........................................ 24
Rating Agency........................................................ 24
Realized Loss........................................................ 25
Record Date.......................................................... 25
Reference Banks...................................................... 25
Regular Certificate.................................................. 25
REMIC ............................................................ 25
REMIC Provisions..................................................... 25
REO Acquisition...................................................... 26
REO Disposition...................................................... 26
REO Imputed Interest................................................. 26
REO Proceeds......................................................... 26
REO Property......................................................... 26
Request for Release.................................................. 26
Reserve Interest Rate................................................ 26
Residual Certificate................................................. 26
Responsible Officer.................................................. 26
Rule 144A............................................................ 27
Scheduled Principal and Net Recoveries............................... 27
Second Step Margin................................................... 27
Seller ............................................................ 27
Seller's Warranty Certificate........................................ 27
Senior Accrual Diversion Amount...................................... 28
Senior Certificate................................................... 28
Senior Percentage.................................................... 28
Senior Prepayment Percentage......................................... 28
Servicing Account.................................................... 29
Servicing Advances................................................... 29
Servicing Fee........................................................ 29
Servicing Fee Rate................................................... 29
Servicing Officer.................................................... 29
Single Certificate................................................... 29
Special Hazard Amount................................................ 30
Special Hazard Loss.................................................. 30
iv
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PAGE
Special Hazard Percentage............................................ 30
Standard & Poor's.................................................... 30
Startup Day.......................................................... 30
Stated Principal Balance............................................. 30
Step Loan............................................................ 31
Sub-Servicer......................................................... 31
Sub-Servicer Remittance Date......................................... 31
Sub-Servicing Account................................................ 31
Sub-Servicing Agreement.............................................. 31
Tax Returns.......................................................... 31
Total Expected Losses................................................ 31
Transfer ............................................................ 31
Transferee........................................................... 31
Transferor........................................................... 31
Trust Fund........................................................... 31
Trustee ............................................................ 32
Uninsured Cause...................................................... 32
United States Person................................................. 32
Voting Rights........................................................ 32
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES................... 33
2.01. Conveyance of Mortgage Loans................................ 33
2.02. Acceptance of the Trust Fund by the Trustee................. 36
2.03. Representations, Warranties and Covenants of the Master Servicer
and the Depositor........................................... 37
2.04. Representations and Warranties of the Seller................ 40
2.05. Issuance of Certificates Evidencing Interests in the Trust
Fund........................................................ 40
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND........................... 41
3.01. Master Servicer to Act as Master Servicer................... 41
3.02. Sub-Servicing Agreements Between Master Servicer and Sub-
Servicers................................................... 42
3.03. Successor Sub-Servicers..................................... 43
3.04. Liability of the Master Servicer............................ 43
3.05. No Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders.......................................... 44
3.06. Assumption or Termination of Sub-Servicing Agreements by
Trustee..................................................... 44
3.07. Collection of Certain Mortgage Loan Payments................ 44
3.08. Sub-Servicing Accounts...................................... 45
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PAGE
3.09. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts.................................................... 45
3.10. Custodial Account........................................... 46
3.11. Permitted Withdrawals From the Custodial Account............ 47
3.12. Permitted Instruments....................................... 48
3.13. Maintenance of Primary Hazard Insurance..................... 48
3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements... 49
3.15. Realization Upon Defaulted Mortgage Loans................... 50
3.16. Trustee to Cooperate; Release of Mortgage Files............. 52
3.17. Servicing Compensation...................................... 53
3.18. Maintenance of Certain Servicing Policies................... 53
3.19. Annual Statement as to Compliance........................... 54
3.20. Annual Independent Public Accountants' Servicing Statement.. 54
3.21. Access to Certain Documentation............................. 54
3.22. Title, Conservation and Disposition of REO Property......... 55
3.23. Additional Obligations of the Master Servicer............... 58
3.24. Additional Obligations of the Depositor..................... 58
3.25. Excess Proceeds Account..................................... 58
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS..................... 61
4.01. Certificate Account; Distributions.......................... 61
4.02. Statements to Certificateholders............................ 68
4.03. Remittance Reports; Advances by the Master Servicer......... 70
4.04. Allocation of Realized Losses............................... 72
4.05. Information Reports to be Filed by the Master Servicer...... 73
4.06. Compliance with Withholding Requirements.................... 73
ARTICLE V
THE CERTIFICATES.............................74
5.01. The Certificates............................................ 74
5.02. Registration of Transfer and Exchange of Certificates....... 76
5.03. Mutilated, Destroyed, Lost or Stolen Certificates........... 81
5.04. Persons Deemed Owners....................................... 81
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER................. 81
6.01. Liability of the Depositor and the Master Servicer.......... 81
6.02. Merger, Consolidation or Conversion of the Depositor or the
Master Servicer............................................. 81
6.03. Limitation on Liability of the Depositor, the Master Servicer
and Others.................................................. 82
6.04. Limitation on Resignation of the Master Servicer............ 83
vi
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PAGE
ARTICLE VII
DEFAULT................................ 84
7.01. Events of Default........................................... 84
7.02. Termination Event........................................... 86
7.03. Trustee to Act; Appointment of Successor.................... 87
7.04. Notification to Certificateholders.......................... 87
7.05. Waiver of Events of Default................................. 88
ARTICLE VIII
CONCERNING THE TRUSTEE......................... 89
8.01. Duties of Trustee........................................... 89
8.02. Certain Matters Affecting the Trustee....................... 90
8.03. Trustee Not Liable for Certificates or Mortgage Loans....... 91
8.04. Trustee May Own Certificates................................ 92
8.05. Master Servicer to Pay Trustee's Fees....................... 92
8.06. Eligibility Requirements for Trustee........................ 92
8.07. Resignation and Removal of the Trustee...................... 93
8.08. Successor Trustee........................................... 94
8.09. Merger or Consolidation of Trustee.......................... 94
8.10. Appointment of Co-Trustee or Separate Trustee............... 94
ARTICLE IX
TERMINATION.............................. 96
9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans....................................................... 96
9.02. Additional Termination Requirements......................... 98
ARTICLE X
REMIC PROVISIONS............................ 99
10.01. REMIC Administration........................................ 99
10.02. Prohibited Transactions and Activities......................102
10.03. Master Servicer and Trustee Indemnification.................102
ARTICLE XI
MISCELLANEOUS PROVISIONS........................103
11.01. Amendment...................................................103
11.02. Recordation of Agreement; Counterparts......................104
11.03. Limitation on Rights of Certificateholders..................104
11.04. Governing Law...............................................105
11.05. Notices.....................................................105
vii
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11.06. Severability of Provisions..................................106
11.07. Successors and Assigns; Third Party Beneficiary.............106
11.08. Article and Section Headings................................106
11.09. Notice to Rating Agencies and Certificateholder.............106
Signatures
Acknowledgments
viii
<PAGE>
EXHIBITS
Exhibit A Form of Senior Certificate
Exhibit B-1 Form of Class B Certificate
Exhibit B-2 Form of Class SB Certificate
Exhibit B-3 Form of Class R Certificate
Exhibit C Form of Trustee Initial Certification
Exhibit D Form of Trustee Final Certification
Exhibit E [Reserved]
Exhibit F-1 Request for Release
Exhibit F-2 Request for Release for Mortgage Loans Paid in Full
Exhibit G-1 Form of Investor Representation Letter
Exhibit G-2 Form of Transferor Representation Letter
Exhibit G-3 Transferor Affidavit and Agreement for Transfers
to Non-United States Persons
Exhibit G-4 Transferee Affidavit and Agreement for Transfers
to Non-United States Persons
Exhibit G-5 Form of Investor Representation Letter for Insurance Companies
Exhibit H Form of Rule 144A Investment Representation
Exhibit I Mortgage Loan Schedule
Exhibit J Seller Representations and Warranties
Exhibit K Form of Notice Under Section 3.24
ix
<PAGE>
This Pooling and Servicing Agreement, dated and effective as of June
1, 1996, among DLJ Mortgage Acceptance Corp., as Depositor (the "Depositor"),
Temple-Inland Mortgage Corporation, as Master Servicer (the "Master Servicer"),
and Bankers Trust Company, as Trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the Trustee will
cause an election to be made to treat the entire segregated pool of assets
subject to this Agreement (including the Mortgage Loans) as a real estate
mortgage investment conduit (a "REMIC") for federal income tax purposes and such
segregated pool of assets will be designated as the "Trust Fund." The Class SA,
Class A-1, Class A-2, Class B-1, Class B-2 and Class SB Certificates will be the
"regular interest" in the Trust Fund, and the Class R Certificates will be the
"residual interests" in the Trust Fund, for purposes of the REMIC Provisions (as
defined herein) under federal income tax law.
The following table sets forth the designation, initial Pass-Through
Rate (as defined herein), aggregate Initial Certificate Principal Balance (as
defined herein), and the approximate initial percentage for each Class of
Certificates comprising the certificated interests in the Trust Fund created
hereunder.
Aggregate Initial
Initial Certificate Approximate
Pass-Through Principal Initial Class
DESIGNATION TYPE RATE BALANCE PERCENTAGE
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Class SA Senior 2.825% N/A N/A
Class A-1 Senior 5.965% $53,917,509 79.50%
Class A-2 Senior 5.965% $8,477,596 12.50%
Class B-1 Subordinate 5.965% $2,204,175 3.25%
Class B-2 Subordinate 5.965% $3,221,487 4.75%
Class SB Subordinate 1.550% N/A N/A
Class R Residual 5.965% $ 0.00 0.00%
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to $67,820,767.14.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"Accrual Period": With respect to any Distribution Date, the period
commencing on the 25th day of the month immediately preceding the month in which
such Distribution Date occurs and ending on the 24th day of the month in which
such Distribution Date occurs, provided, however, that the Accrual Period will
be treated as a 30-day period regardless of the number of days from the 25th day
of the preceding month to the 24th day of such month.
"Accrued Certificate Interest": With respect to each Distribution
Date, as to any Class A-1 Certificate, Class A-2 Certificate, Class B-1
Certificate, Class B-2 Certificate or Class R Certificate, one month's interest
accrued during the related Accrual Period at the then applicable Pass-Through
Rate on the Certificate Principal Balance thereof immediately prior to such
Distribution Date. With respect to each Distribution Date, as to the Class SA
Certificates and the Class SB Certificates, one month's interest accrued during
the related Accrual Period at the then applicable Pass-Through Rate on the
Notional Amount immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year consisting of twelve
30-day months. In each case Accrued Certificate Interest on any such Class of
Certificates will be reduced by the amount of (i) Prepayment Interest
Shortfalls, if any, which are not covered by payments by the Master Servicer
pursuant to Section 3.23 with respect to such Distribution Date, (ii) the
interest portion (adjusted to the Net Mortgage Rate) of Realized Losses
(including Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to the Class A-2
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
SB Certificates or the Class R Certificates pursuant to Section 4.04, (iii) the
interest portion of Advances previously made with respect to a Mortgage Loan or
REO Property which remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property that were made with respect to
delinquencies that ultimately constituted Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses and (iv) any
other interest shortfalls not covered by the subordination provided by the Class
A-2 Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the
Class SB Certificates and the Class R Certificates, including interest that is
not collectible from the Mortgagor pursuant to the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, or similar legislation or regulations as in
effect from time to time, with all such reductions allocated among all of the
Certificates on a pro rata basis in proportion to their respective amounts of
Accrued Certificate Interest which would have resulted absent such reductions.
In addition to that portion of the reductions described in the preceding
sentence that are allocated to the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates or the Class
R Certificates, Accrued Certificate Interest
<PAGE>
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on the Class A-2 Certificates, the Class B-1 Certificates, the Class B-2
Certificates, the Class SB Certificates or the Class R Certificates, as
applicable, will be reduced by the interest portion (adjusted to the Net
Mortgage Rate) of the portion of Realized Losses that are allocated solely to
the Class A-2 Certificates, the Class B-1 Certificates, the Class B-2
Certificates, the Class SB Certificates or the Class R Certificates, as
applicable, pursuant to Section 4.04. Furthermore, Accrued Certificate Interest
on the Class R Certificates will be further reduced by any payments made to the
Certificateholders pursuant to Sections 4.01(b)(viii), (ix), (x), (xi), (xii),
(xiii) and (xiv).
"Adjustable Rate Loan": Each of the adjustable rate mortgage loans
transferred and assigned to the Trustee pursuant to Section 2.01 and from time
to time held in the Trust Fund, the Adjustable Rate Loans originally so
transferred, assigned and held being identified in the Mortgage Loan Schedule.
As used herein, the term "Adjustable Rate Loan" includes the related Mortgage
Note and Mortgage.
"Adjustment Date": With respect to each Adjustable Rate Loan, the
date set forth in the related Mortgage Note on which the Mortgage Rate may
initially change and each semi-annual anniversary of such date. With respect to
each GPARM Loan, the first day of each month commencing with the date set forth
in the related Mortgage Note on which the Mortgage Rate may initially change and
each monthly anniversary of such date. With respect to each Step Loan, the date
set forth in the related Mortgage Note on which the Mortgage Rate will initially
change and the first anniversary of such date. The first Adjustment Date as to
each Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan, any advance made by the Master
Servicer on any Distribution Date pursuant to Section 4.03.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof.
"Anniversary": Each anniversary of June 1, 1996.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
"Assignment Agreement": The assignment agreement dated as of the
Closing Date, between DLJMCI and the Depositor.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the balance on deposit in the
Custodial Account as of the close of business on the related Determination Date
and (ii) the aggregate amount of any Advances made, and all amounts required to
be paid by the Master Servicer pursuant to Sections 3.13, 3.23 and 9.01 by
deposits into the Certificate Account on the immediately preceding Certificate
Account Deposit Date, reduced by (b) the sum, as of the close of business on the
related
<PAGE>
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Determination Date, of (i) Monthly Payments collected but due during a Due
Period subsequent to the Due Period ending on the first day of the month of the
related Distribution Date, (ii) all interest or other income earned on deposits
in the Custodial Account, (iii) any other amounts reimbursable or payable to the
Depositor, the Seller, the Trustee, the Master Servicer or any Sub-Servicer
pursuant to Section 3.11, and (iv) Insurance Proceeds, Liquidation Proceeds,
Principal Prepayments, REO Proceeds and the proceeds of Mortgage Loan purchases
made pursuant to Section 2.02, 2.04 or 3.22, in each case received or made in
the month of such Distribution Date.
"Bankruptcy Amount": As of any date of determination prior to June
1, 1997, an amount, equal to the excess, if any, of (A) $100,000.00 (the initial
"Bankruptcy Amount"), over (B) the aggregate amount of Bankruptcy Losses
allocated solely to the Class A-2 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, the Class SB Certificates or the Class R Certificates in
accordance with Section 4.04. As of any date of determination on or after June
1, 1997, an amount equal to the excess, if any, of (1) the lesser of (a) the
Bankruptcy Amount calculated as of the close of business on the Business Day
immediately preceding the most recent Anniversary (for purposes of this
definition, the "Relevant Anniversary") and (b) the greater of (i) 0.15% times
the aggregate principal balance of the Mortgage Loans as of the Relevant
Anniversary; and (ii) $100,000.00 over (2) the aggregate amount of Bankruptcy
Losses allocated solely to the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates and the
Class R Certificates in accordance with Section 4.04 since the Relevant
Anniversary.
The Bankruptcy Amount may be further reduced by the Depositor
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Depositor shall obtain written
confirmation from the Rating Agency that such reduction shall not adversely
affect the then-current rating assigned to the Certificates by the Rating Agency
and shall provide a copy of such written confirmation to the Trustee.
"Bankruptcy Code": The United States Bankruptcy Code of 1978, as
amended and any rules promulgated in connection therewith.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Realized
Loss resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Texas (and such other
state or states in which the Custodial Account or the Certificate Account are at
the time located) or in the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to
close.
<PAGE>
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"Cash Liquidation": As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, the final receipt by or
on behalf of the Master Servicer of all Insurance Proceeds, Liquidation Proceeds
and other payments or cash recoveries which the Master Servicer reasonably and
in good faith expects to be finally recoverable with respect to such Mortgage
Loan.
"Certificate": Any Class SA, Class A-1, Class A-2, Class B-1, Class
B-2, Class SB or Class R Certificate.
"Certificate Account": The trust account or accounts created and
maintained pursuant to Section 4.01, which shall be entitled "Bankers Trust
Company, in trust for registered holders of the DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates, Series 1996-Q6, and which account or
accounts must each be an Eligible Account.
"Certificate Account Deposit Date": As to any Distribution Date, the
Business Day prior thereto.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, neither a
Disqualified Organization nor a nonUnited States Person shall be a Holder of a
Class R Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate, other than a
Class R Certificate, registered in the name of the Depositor or the Master
Servicer or any affiliate thereof shall be deemed not to be outstanding and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent has been obtained, except as otherwise provided in
Section 11.01. The Trustee shall be entitled to rely upon a certification of the
Depositor or the Master Servicer in determining if any Certificates are
registered in the name of a respective affiliate. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and
participating members thereof, except as otherwise specified herein; provided,
however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate, as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Principal Balance": With respect to each Class A-1
Certificate or Class A-2 Certificate, on any date of determination, an amount
equal to (i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus (ii) the Deferred Interest, if any,
allocated thereto for each Distribution Date prior to or coinciding with such
date of determination in accordance with Section 4.01(h) minus (iii) the sum of
(a) the aggregate of all amounts previously distributed with respect to such
Certificates (or any predecessor
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Certificate) and applied to reduce the Certificate Principal Balance thereof
pursuant to Section 4.01(b), and (b) the aggregate of all reductions in
Certificate Principal Balance deemed to have occurred in connection with
Realized Losses which were previously allocated to such Certificate (or any
predecessor Certificate) pursuant to Section 4.04; provided, that if the
Certificate Principal Balances of the Class B-1 Certificates and the Class B-2
Certificates have been reduced to zero and if the Certificate Principal Balance
of the Class R Certificates would be equal to zero if determined without regard
to this proviso, the Certificate Principal Balance of each Class A-2
Certificate, at any given time, shall thereafter be an amount equal to (i) the
Percentage Interest evidenced by such Certificate times (ii) the excess, if any
of (a) the then aggregate Stated Principal Balance of the Mortgage Loans (or
related REO Properties) over (b) the aggregate Certificate Principal Balance of
the Class A-1 Certificates. With respect to each Class B-1 Certificate, on any
date of determination, an amount equal to (i) the initial Certificate Principal
Balance of such Class B-1 Certificate, as specified on the face thereof, plus
(ii) the Deferred Interest, if any, allocated thereto for each Distribution Date
prior to or coinciding with such date of determination in accordance with
Section 4.01(h) minus (iii) the sum of (a) the aggregate of all amounts
previously distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal Balance thereof
pursuant to Section 4.01(b), and (b) the aggregate of all reductions in
Certificate Principal Balance deemed to have occurred in connection with
Realized Losses which were previously allocated to such Certificate (or any
predecessor Certificate) pursuant to Section 4.04; provided that if the
Certificate Principal Balances of the Class B-2 Certificates have been reduced
to zero and if the Certificate Principal Balance of the Class R Certificates
would be equal to zero if determined without regard to this proviso, the
Certificate Principal Balance of each Class B-1 Certificate, at any given time,
shall thereafter be an amount equal to (i) the Percentage Interest evidenced by
such Certificate times (ii) the excess, if any, of (a) the then aggregate Stated
Principal Balance of the Mortgage Loans (or related REO Properties) over (b) the
sum of the then aggregate Certificate Principal Balance of all of the Class A-1
Certificates and Class A-2 Certificates. With respect to each Class B-2
Certificate, on any date of determination, an amount equal to (i) the initial
Certificate Principal Balance of such Class B-2 Certificate, as specified on the
face thereof, plus (ii) the Deferred Interest, if any, allocated thereto for
each Distribution Date prior to or coinciding with such date of determination in
accordance with Section 4.01(g) minus (iii) the sum of (a) the aggregate of all
amounts previously distributed with respect to such Certificate (or any
predecessor Certificate) and applied to reduce the Certificate Principal Balance
thereof pursuant to Section 4.01(b), and (b) the aggregate of all reductions in
Certificate Principal Balance deemed to have occurred in connection with
Realized Losses which were previously allocated to such Certificate (or any
predecessor Certificate) pursuant to Section 4.04; provided that if the
Certificate Principal Balance of the Class R Certificates would be equal to zero
if determined without regard to this proviso has been reduced to zero, the
Certificate Principal Balance of each Class B-2 Certificate, at any given time,
shall thereafter be an amount equal to (i) the Percentage Interest evidenced by
such Certificate times (ii) the excess, if any, of (a) the then aggregate Stated
Principal Balance of the Mortgage Loans (or related REO Properties) over (b) the
sum of the then aggregate Certificate Principal Balance of all of the Class A-1
Certificates, the Class A-2 Certificates and the Class B-1 Certificates. With
respect to each Class R Certificate, on any date of determination, an amount
equal to the Percentage Interest evidenced thereby multiplied
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by the excess, if any, of (x) the then aggregate Stated Principal Balance of the
Mortgage Loans over (y) the then aggregate Certificate Principal Balances of the
Senior Certificates and the Class B Certificates. The Class SA Certificates and
Class SB Certificates have no principal balances.
"Certificate Register": The register maintained pursuant to Section
5.02(a).
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class A-1 Certificate": Any one of the Class A-1 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, senior with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.04, and evidencing an
interest designated as a "regular interest" in the Trust Fund for purposes of
the REMIC Provisions.
"Class A-1 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class A-1 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
"Class A-2 Certificate": Any one of the Class A-2 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, subordinate to the Class SA Certificates, Class A-1
Certificates with respect to distributions and the allocation of Realized Losses
as set forth in Section 4.04, and evidencing an interest designated as a
"regular interest" in the Trust Fund for purposes of the REMIC Provisions.
"Class A-2 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class A-2 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date; provided, that if the
Certificate Principal Balances of the Class B-1 Certificates and the Class B-2
Certificates have been reduced to zero prior to such Distribution Date and if
the Certificate Principal Balance of the Class R Certificate would be zero
immediately after such Distribution Date if determined without regard to this
proviso, then the Class A-2 Percentage as of such date of determination shall be
100% minus the then applicable Class A-1 Percentage.
"Class B Certificate": Any one of the Class B-1 Certificates or the
Class B-2 Certificates.
"Class B Certificate Termination Date": The Distribution Date upon
which the Certificate Principal Balances of the Class B-1 Certificates and the
Class B-2 Certificates are reduced to zero.
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"Class B Percentage": With respect to any Distribution Date, the sum
of the Class B-1 Percentage and the Class B-2 Percentage.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, subordinate to the Senior Certificates with
respect to distributions and the allocation of Realized Losses as set forth in
Section 4.04, and evidencing an interest designated as a "regular interest" in
the Trust Fund for purposes of the REMIC Provisions.
"Class B-1 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class B-1 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date; provided, that if the
Certificate Principal Balance of the Class B-2 Certificates has been reduced to
zero prior to such Distribution Date and if the Certificate Principal Balance of
the Class R Certificate would be zero immediately after such Distribution Date
if determined without regard to this proviso, then the Class B-1 Percentage as
of such date of determination shall be 100% minus the then applicable Senior
Percentage.
"Class B Prepayment Percentage": With respect to any Distribution
Date, 100% minus the Senior Prepayment Percentage for such Distribution Date.
"Class B-2 Certificate": Any one of the Class B-2 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, subordinate to the Senior Certificates and the
Class B-1 Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.04, and evidencing an interest
designated as a "regular interest" in the Trust Fund for purposes of the REMIC
Provisions.
"Class B-2 Percentage": With respect to any Distribution Date, the
lesser of 100% and a fraction, expressed as a percentage, the numerator of which
is the aggregate Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date; provided, that if the
Certificate Principal Balance of the Class R Certificates would be zero
immediately after such Distribution Date if determined without regard to this
proviso, then the Class B-2 Percentage as of such date of determination shall be
100% minus the sum of the then applicable Senior Percentage and the then
applicable Class B-1 Percentage.
"Class R Accrual Amount": With respect to each Distribution Date,
the amount of Accrued Certificate Interest on the Class R Certificates on such
Distribution Date, to the extent such interest was not distributed to the Class
R Certificates on such Distribution Date in accordance with Section 4.01(d).
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"Class R Certificate": Any one of the Class R Certificates,
executed, authenticated and delivered hereunder by the Trustee substantially in
the form annexed hereto as Exhibit B-3, as further described in the recitals
hereto, evidencing an interest designated as a "residual interest" in the Trust
Fund for purposes of the REMIC Provisions.
"Class R Percentage": With respect to any Distribution Date, a
percentage equal to 100% minus the sum of the then applicable Senior Percentage
and the then applicable Class B Percentage.
"Class SA Certificate": Any one of the Class SA Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A, senior with respect to distributions and to the
allocation of Realized Losses as set forth in Section 4.04, and evidencing an
interest designated as a "regular interest" in the Trust Fund for purposes of
the REMIC Provisions.
"Class SB Accrual Amount": With respect to each Distribution Date,
the amount of Accrued Certificate Interest on the Class SB Certificates on such
Distribution Date, to the extent such interest was not distributed to the Class
SB Certificates on such Distribution Date in accordance with Section 4.01(d).
"Class SB Certificate": Any one of the Class SB Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-2, subordinate to the Senior Certificates and the
Class B Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.04, and evidencing an interest
designated as a "regular interest" in the Trust Fund for purposes of the REMIC
Provisions.
"Closing Date": June 27, 1996.
"Code": The Internal Revenue Code of 1986.
"Collateral Value": The appraised value of a Mortgaged Property
based upon the lesser of (i) the appraisal (as reviewed and approved by the
Seller) made at the time of the origination of the related Mortgage Loan, or
(ii) the sales price of such Mortgaged Property at such time of origination.
With respect to a Mortgage Loan the proceeds of which were used to refinance an
existing mortgage loan, the appraised value (as reviewed and approved by the
Seller) of the Mortgaged Property based upon the appraisal (as reviewed and
approved by the Seller) obtained at the time of refinancing.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business related
to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at Four Albany Street, New York, New York
10006, Attention: DLJ/Quality 1996-Q6.
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"Custodial Account": The custodial account or accounts created and
maintained pursuant to Section 3.10 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.10 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
"Cut-off Date": June 1, 1996.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
"Deferred Interest": With respect to each GPARM Loan as of any Due
Date, the amount, if any, by which the Mortgage Loan Accrued Interest for such
Due Date exceeds the Monthly Payment for such Due Date and which amount,
pursuant to the terms of the Mortgage Note, is added to the principal balance of
such GPARM Loan.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding indebtedness under the Mortgage Loan,
which valuation results from a proceeding initiated by the Mortgagor under the
Bankruptcy Code.
"Definitive Certificate": Any definitive, fully registered
Certificate.
"Depositor": DLJ Mortgage Acceptance Corp., or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates is Cede
& Co. The Depository shall at all times be a "clearing corporation" as defined
in Section 8-102(3) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
"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.
"Determination Date": The 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of the month
of the related Distribution Date.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any
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of the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for the FHLMC, a majority of its
board of directors is not selected by such governmental unit), (ii) any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), or
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (iv) any other Person so designated by the Trustee based upon an
Opinion of Counsel provided to the Trustee that the holding of an ownership
interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an ownership interest in any Class of Certificates (other than
such Person) to incur liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership interest in
the Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code.
"Distribution Date": The 25th day of any month, or, if such 25th day
is not a Business Day, the Business Day immediately following such 25th day,
commencing in July, 1996.
"DLJMCI": DLJ Mortgage Capital, Inc., a Delaware corporation.
"Due Date": The first day of the month of the related Distribution
Date.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month of such
Distribution Date (or, with respect to the first Due Period, the day following
the Cut-off Date) and ending on the related Due Date.
"Duff & Phelps": Duff & Phelps Credit Rating Co. or its successor in
interest.
"Eligible Account": An account maintained with a federal or state
chartered depository institution (i) the short-term obligations of which are
rated by each of the Rating Agencies in its highest rating at the time of any
deposit therein, or (ii) insured by the FDIC (to the limits established by such
corporation), the uninsured deposits in which account are otherwise secured such
that, as evidenced by an Opinion of Counsel (obtained by the Person requesting
that the account be held pursuant to this clause (ii)) delivered to the Trustee
prior to the establishment of such account, the Certificateholders will have a
claim with respect to the funds in such account and a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Instruments, each of which shall mature not later than the Business Day
immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Instrument is an obligation of the institution that maintains the Certificate
Account or Custodial Account) securing such funds that is superior to claims of
any other depositors or general creditors of the depository institution with
which such account is maintained or (iii) a trust account or accounts maintained
with a federal or state
<PAGE>
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chartered depository institution or trust company with trust powers acting in
its fiduciary capacity or (iv) an account or accounts of a depository
institution acceptable to the Rating Agencies (as evidenced in writing by the
Rating Agencies that use of any such account as the Custodial Account, the
Excess Proceeds Account or the Certificate Account will not have an adverse
effect on the then-current ratings assigned to the Classes of the Certificates
then rated by the Rating Agencies). Eligible Accounts may bear interest.
"Event of Default": One or more of the events described in Section
7.01.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion thereof,
which exceeds the then applicable Bankruptcy Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Proceeds": With respect to each Mortgage Loan as to which an
REO Disposition has occurred, the proceeds that are specified as being "Excess
Proceeds" in Section 3.22.
"Excess Proceeds Account": The separate account or accounts created
and maintained pursuant to Section 3.25, which shall be entitled "Bankers Trust
Company, in trust for registered holders of the DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates, Series 1996-Q6, Excess Proceeds Account,"
and which account or accounts shall be an Eligible Account.
"Excess Special Hazard Loss": Any Special Hazard Loss, or portion
thereof, that exceeds the then applicable Special Hazard Amount.
"Extraordinary Events": Any of the following conditions with respect
to a Mortgaged Property or Mortgage Loan causing or resulting in a loss which
causes the liquidation of such Mortgage Loan:
(a) losses which are of a type that would be covered by the fidelity
bond and the errors and omissions insurance policy required to be
maintained pursuant to Section 3.18, but are in excess of the coverage
maintained thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war, including
action in hindering, combatting or defending against an actual, impending
or expected attack;
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1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval or
air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(d) any weapon of war employing atomic fission or radioactive
force whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combatting or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority; or risks of contraband or illegal transportation or
trade.
"Extraordinary Losses": Any Realized Loss incurred on a Mortgage
Loan caused by or resulting from an Extraordinary Event.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"First Step Margin": With respect to each Step Loan, the fixed
percentage amount set forth in the related Mortgage Note to be added to the
initial Mortgage Rate on the initial Adjustment Date of such Step Loan in
accordance with the terms of the related Mortgage Note and used to determine the
Mortgage Rate for such Step Loan. The First Step Margin as to each Step Loan is
set forth on the Mortgage Loan Schedule.
"Fixed Rate Loan": Each of the fixed rate mortgage loans transferred
and assigned to the Trustee pursuant to Section 2.01 and from time to time held
in the Trust Fund, the Fixed Rate Loans originally so transferred, assigned and
held being identified in the Mortgage Loan Schedule. As used herein, the term
"Fixed Rate Loan" includes the related Mortgage Note and Mortgage.
"FNMA": Federal National Mortgage Association or any successor.
"Fraud Loss Amount": With respect to any date of determination after
the Cut-off Date an amount equal to: (X) prior to the first Anniversary, an
amount equal to 3.00% of the aggregate outstanding principal balance of all of
the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates and the
Class R Certificates in accordance with Section 4.04 since the Cut-off Date, (Y)
from and including the first Anniversary to but not including the second
Anniversary, an amount equal to (1) the lesser
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of (a) the Fraud Loss Amount as of the day immediately preceding the first
Anniversary and (b) 2.00% of the aggregate outstanding principal balance of all
of the Mortgage Loans as of the first Anniversary minus (2) the Fraud Losses
allocated solely to the Class A-2 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, the Class SB Certificates and the Class R Certificates
in accordance with Section 4.04 since the first Anniversary, and (Z) from and
including the second Anniversary to but not including the fifth Anniversary, an
amount equal to (1) the lesser of (a) the Fraud Loss Amount as of the most
recent Anniversary and (b) 1.00% of the aggregate outstanding principal balance
of all of the Mortgage Loans, as of the most recent Anniversary minus (2) the
Fraud Losses allocated solely to the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates and the
Class R Certificates in accordance with Section 4.04 since the most recent
Anniversary. On and after the fifth Anniversary the Fraud Loss Amount shall be
zero.
"Fraud Losses": Realized Losses on Mortgage Loans as to which there
was fraud in the origination of such Mortgage Loan.
"Funding Date": With respect to each Mortgage Loan, the date on
which funds were advanced by or on behalf of the Seller and interest began to
accrue thereunder.
"GPARM Loan": Each Mortgage Loan which contains a provision for
negative amortization, transferred and assigned to the Trustee, pursuant to
Section 2.01 and from time to time held in the Trust Fund, the GPARM Loan
originally so transferred, assigned and held being identified on the Mortgage
Loan Schedule. As used herein, the term "GPARM Loan" includes the related
Mortgage Note and Mortgage.
"Gross Margin": With respect to each Adjustable Rate Loan and GPARM
Loan, the fixed rate set forth in the related Mortgage Note to be added to the
related Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Mortgage Rate for such Mortgage
Loan. The Gross Margin as to each Adjustable Rate and GPARM Loan is set forth on
the Mortgage Loan Schedule.
"High Cost Loan": The Mortgage Loans that are subject to special
rules, disclosure requirements and other provisions that were added to the
Federal Truth in Lending Act by the Home Ownership and Equity Protection Act of
1994.
"Index": With respect to any Adjustable Rate Loan, the average of
the interbank offered rates for six month United States dollar deposits in the
London market based on quotations of major banks, as published in the Western
Edition of THE WALL STREET JOURNAL, as most recently available as of the date 30
days or 45 days (as set forth in the related Mortgage Note) prior to any
Adjustment Date. With respect to the GPARM Loans, the average of the interbank
offered rates for one month United States dollar deposits in the London market
based on quotations of major banks, as published in the Western Edition of THE
WALL STREET JOURNAL, as most recently available as of the date 30 days or 45
days (as set forth in the related Mortgage Note) prior to any Adjustment Date.
If either Index is not so published or is otherwise
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unavailable, the Master Servicer shall select an alternate index for mortgage
loans on single family residential properties that is calculated and published
or otherwise made available by an independent third party.
"Initial Certificate Principal Balance": With respect to each Class
of Certificates, the Certificate Principal Balance of such Class of Certificates
as of the Cut-off Date as set forth in the Preliminary Statement hereto.
"Initial Loss Coverage": The sum of (i) the aggregate Initial
Certificate Principal Balance of the Class B Certificates and (ii) 3.00% times
the aggregate Initial Certificate Principal Balance of all of the Certificates.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
in respect of such Mortgage Loan.
"Insurance Proceeds": Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Hazard Insurance Policy, any title insurance policy or
any other insurance policy covering a Mortgage Loan, to the extent such proceeds
are not applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the procedures that the Master Servicer
would follow in servicing mortgage loans held for its own account.
"Interest Determination Date": With respect to any Distribution
Date, the second London Business Day preceding the Due Date in the month next
preceding the month in which such Distribution Date occurs.
"Interim Servicing Agreement": With respect to any Mortgage Loan,
the SubServicing Agreement between the related Interim Subservicer and the
Master Servicer, as assignee, which is in existence on the Closing Date and
pursuant to which such Interim Subservicer shall be obligated to service such
Mortgage Loan during the related Interim Servicing Period and to transfer the
servicing for such Mortgage Loan to the Master Servicer at the end of such
Interim Servicing Period.
"Interim Servicing Period": With respect to any Mortgage Loan, the
period from the Closing Date through the close of business on July 31, 1996
during which the related Interim Subservicer shall service such Mortgage Loan
for the Master Servicer pursuant to the corresponding Interim Servicing
Agreement.
"Interim Subservicer": With respect to certain Mortgage Loans, as
identified in the Interim Servicing Agreement, Quality Mortgage USA, Inc.
"Late Collections": With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance
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Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of Monthly Payments due but delinquent for a previous Due Period and
not previously recovered.
"LIBOR": With respect to any Distribution Date, the rate determined
by the Trustee on the related Interest Determination Date on the basis of the
offered rates of the Reference Banks for one-month U.S. dollar deposits, as such
rates appear on the Reuters Screen LIBOR Page, as of 11:00 A.M. (London time) on
such Interest Determination Date. On each Interest Determination Date, LIBOR
will be established by the Trustee as follows:
(i) If, on such Interest Determination Date, two or more Reference
Banks provide such offered quotations, LIBOR shall be the
arithmetic mean of such offered quotations (rounded upwards if
necessary to the nearest multiple of 1/16 of 1%).
(ii) If, on such Interest Determination Date, fewer than two
Reference Banks provide such offered quotations, LIBOR shall
be the higher of (i) LIBOR, as determined on the previous
Interest Determination Date, and (ii) the Reserve Interest
Rate.
"Liquidation Proceeds": Amounts (other than Insurance Proceeds)
received by the Master Servicer in connection with the taking of an entire
Mortgaged Property by exercise of the power of eminent domain or condemnation or
in connection with the liquidation of a defaulted Mortgage Loan through
trustee's sale, foreclosure sale or otherwise, other than amounts received in
respect of any REO Property.
"Loss Reimbursement Payment": Any payments to the holders of the
Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates
made pursuant to Sections 4.01(b)(xii), (xiii), (xiv), (xii), (xv) or (xvii)
hereof.
"London Business Day": Any day on which banks in the City of London
are open and conducting transactions in U.S. dollars.
"Loss Severity Percentage": 43%
"Master Servicer": Temple-Inland Mortgage Corporation, or any
successor master servicer appointed as herein provided.
"Maximum Rate": With respect to each Adjustable Rate Loan and GPARM
Loan, the amount set forth in the Mortgage Note as the maximum Mortgage Rate
thereunder.
"Minimum Rate": With respect to each Adjustable Rate Loan and GPARM
Loan, the amount set forth in the Mortgage Note as the minimum Mortgage Rate
thereunder.
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"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is payable
by a Mortgagor from time to time under the related Mortgage Note as originally
executed (after adjustment, if any, for Principal Prepayments and for Deficient
Valuations occurring prior to such Due Date, and after any adjustment by reason
of any bankruptcy or similar proceeding or any moratorium or similar waiver or
grace period).
"Moody's": Moody's Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, deed of trust or any other instrument
securing the Mortgage Loan.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement; provided, that
whenever the term "Mortgage File" is used to refer to documents actually
received by the Trustee, such term shall not be deemed to include such
additional documents required to be added unless they are actually so added.
"Mortgage Loan": Each of the mortgage loans, transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund, the Mortgage Loans originally so transferred, assigned and held
being identified in the Mortgage Loan Schedule. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note and Mortgage.
"Mortgage Loan Accrued Interest": With respect to each GPARM Loan
and each Due Date, the aggregate amount of interest accrued at the Mortgage Rate
in respect of such GPARM Loan since the preceding Due Date (or in the case of
the initial Due Date, since the Cut-off Date) to but not including such Due Date
with respect to which the GPARM Loan Accrued Interest is being calculated in
accordance with the terms of such GPARM Loan, after giving effect to any
previous Principal Prepayments, Deficient Valuation or Debt Service Reduction in
respect of such GPARM Loan.
"Mortgage Loan Purchase Agreement": With respect to any Mortgage
Loan, the mortgage loan purchase agreements between the Seller and DLJMCI
pursuant to which the Seller sold such Mortgage Loan to DLJMCI and DLJMCI
purchased such Mortgage Loan from the Seller.
"Mortgage Loan Schedule": As of any date of determination, the
schedule of Mortgage Loans included in the Trust Fund. The initial schedule of
Mortgage Loans with accompanying information transferred on the Closing Date to
the Trustee as part of the Trust Fund for the Certificates, attached hereto as
Exhibit I (and, for purposes of the Trustee's review of the Mortgage Files
pursuant to Section 2.02, in computer-readable form as delivered to the
Trustee), which list shall set forth the following information with respect to
each Mortgage Loan:
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(i) the loan number and name of the Mortgagor;
(ii) the street address, city, state and zip code of the Mortgaged
Property;
(iii) whether the Mortgage Loan is a Fixed Rate Loan, an Adjustable
Rate Loan, a GPARM Loan or a Step Loan;
(iv) (A) if such Mortgage Loan is a Fixed Rate Loan, the Mortgage
Rate set forth in the related Mortgage Note and (B) if such
Mortgage Loan is either an Adjustable Rate Loan, a GPARM Loan
or a Step Loan, the initial Mortgage Rate;
(v) the maturity date;
(vi) the original principal balance;
(vii) the first payment date;
(viii) the type of Mortgaged Property;
(ix) the Monthly Payment in effect as of the Cut-off Date;
(x) the principal balance as of the Cut-off Date;
(xi) (A) if such Mortgage Loan is either an Adjustable Rate Loan or
GPARM Loan, the Index and the Gross Margin and (B) if such
Mortgage Loan is a Step Loan, the First Step Margin and the
Second Step Margin;
(xii) if such Mortgage Loan is either an Adjustable Rate Loan, GPARM
Loan or Step Loan, the first Adjustment Date and the next
Adjustment Date, if any;
(xiii) with respect to each GPARM Loan, the first Payment Adjustment
Date;
(xiv) (A) if such Mortgage Loan is an Adjustable Rate Loan, the
Periodic Rate Cap and (B) if such Mortgage Loan is a GPARM
Loan, the Payment Cap;
(xv) (A) if such Mortgage Loan is either an Adjustable Rate Loan or
GPARM Loan, the Adjustment Date frequency and (B) if such
Mortgage Loan is a GPARM Loan, the Payment Adjustment Date
frequency;
(xvi) the Mortgage Rate as of the Cut-off Date;
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(xvii) (A) if such Mortgage Loan is either an Adjustable Rate Loan or
GPARM Loan, the Minimum Rate and the Maximum Rate and (B) if
such Mortgage Loan is a GPARM Loan, the maximum negative
amortization percentage;
(xviii) the unpaid principal balance as of the Cut-off Date;
(xix) the Mortgage Rate as of the Cut-off Date;
(xx) the occupancy status;
(xxi) the purpose of the Mortgage Loan;
(xxii) the Collateral Value of the Mortgaged Property;
(xxiii) the original term to maturity;
(xxiv) whether or not the Mortgage Loan provides for a Principal
Prepayment penalty;
(xxv) the paid-through date of the Mortgage Loan;
(xxvi) the credit grade of the Mortgagor;
(xxvii) the number of units in the Mortgaged Property;
(xxviii) whether or not the Mortgage Loan is a High Cost Loan; and
(xxix) whether the Mortgagor has a leasehold interest or a fee simple
interest in the Mortgaged Property;
(xxx) a code indicating the underwriting program pursuant to which
the Mortgage Loan was originated; and
(xxxi) the Interim Subservicer.
The Mortgage Loan Schedule shall also set forth the total of the
amounts described under (x) above for all of the Mortgage Loans. The Mortgage
Loan Schedule may be in the form of more than one schedule, collectively setting
forth all of the information required.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
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"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan, as adjusted from time to time
in accordance with the provisions of the Mortgage Note.
"Mortgaged Property": The underlying property securing a Mortgage
Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Net Mortgage Rate": As to each Mortgage Loan, a per annum rate of
interest equal to the Mortgage Rate as in effect from time to time minus the
Servicing Fee Rate.
"Net Mortgage Rate Cap": With respect to any Distribution Date, a
rate equal to the weighted average, expressed as a percentage, of the Net
Mortgage Rates of all outstanding Mortgage Loans as of the Due Date in the month
immediately preceding the month in which such Distribution Date occurs, weighted
on the basis of the respective Stated Principal Balances of such Mortgage Loans,
which Stated Principal Balances shall be the Stated Principal Balances of such
Mortgage Loans at the close of business on the immediately preceding
Distribution Date after giving effect to distributions thereon allocable to
principal (or, in the case of the PassThrough Rate for the initial Distribution
Date, at the close of business on the Cut-off Date), minus 1.55%.
"Nonrecoverable Advance": Any Advance previously made or proposed to
be made in respect of a Mortgage Loan which, in the good faith judgment of the
Master Servicer, will not or, in the case of a proposed Advance, would not be
ultimately recoverable from related Late Collections, Insurance Proceeds,
Liquidation Proceeds, REO Proceeds or amounts reimbursable to the Master
Servicer pursuant to Section 4.01(b). The determination by the Master Servicer
that it has made a Nonrecoverable Advance or that any proposed Advance would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate delivered to the Depositor and the Trustee.
"Non-United States Person": Any Person other than a United States
Person.
"Notional Amount": With respect to the Class SA Certificates and
Class SB Certificates, as of any date of determination, the aggregate Stated
Principal Balance of all of the Mortgage Loans and related REO Properties
immediately prior to such date, except that the initial Notional Amount for the
Class SA Certificates and Class SB Certificates shall be rounded down to the
nearest dollar increment.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president and by
the Treasurer, the Secretary, or one of the assistant treasurers or assistant
secretaries of the Master Servicer or of the Sub-Servicer and delivered to the
Depositor and Trustee.
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"Opinion of Counsel": A written opinion of counsel, who may be
counsel for the Depositor or the Master Servicer, reasonably acceptable to the
Trustee; except that any opinion of counsel relating to (a) the qualification of
any account required to be maintained pursuant to this Agreement as an Eligible
Account, (b) qualification of the Trust Fund as a REMIC, (c) compliance with the
REMIC Provisions or (d) resignation of the Master Servicer pursuant to Section
6.04 must be an opinion of counsel who (i) is in fact independent of the
Depositor and the Master Servicer, (ii) does not have any direct financial
interest or any material indirect financial interest in the Depositor or the
Master Servicer or in an affiliate of either and (iii) is not connected with the
Depositor or the Master Servicer as an officer, employee, director or person
performing similar functions.
"Original Senior Percentage": 92.00%, which is the fraction,
expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Class A-1 Certificates and the Class A-2 Certificates
as of the Closing Date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans as of the Closing Date.
"OTS": Office of Thrift Supervision or any successor.
"Outstanding Class SB Unpaid Interest Amount": As of any
Distribution Date, an amount equal to (i) the aggregate of the Class SB Accrual
Amounts for all preceding Distribution Dates minus (ii) the aggregate amount of
all previous distributions to the Class SB Certificateholders in reduction of
the Outstanding Class SB Unpaid Interest Amount pursuant to Section 4.01(b)(xii)
hereof.
"Outstanding Mortgage Loan": As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in full, Cash Liquidation or REO Disposition and which was not purchased prior
to such Due Date pursuant to Sections 2.02, 2.04, 3.22 or 9.01.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to each of the Class A-1
Certificates, the Class A-2 Certificates, the Class B-1 Certificates, the Class
B-2 Certificates and the Class R Certificates, on each Distribution Date, a rate
equal to LIBOR plus 0.50%; provided, however, that the Pass-Through Rate on each
such Class of Certificates will be subject to a maximum rate as of any
Distribution Date equal to the lesser of (i) 12.00% per annum and (ii) the Net
Mortgage Rate Cap. With respect to the Class SA Certificates and any
Distribution Date, a rate equal to the excess, if any, of the weighted average,
expressed as a percentage, of the Net Mortgage Rates of all outstanding Mortgage
Loans as of the Due Date in the month immediately preceding the month in which
such Distribution Date occurs, weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans, which Stated Principal Balances shall
be the Stated Principal Balances of such Mortgage Loans at the close of business
on the immedi-
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ately preceding Distribution Date after giving effect to distributions thereon
allocable to principal (or, in the case of the Pass-Through Rate for the initial
Distribution Date, at the close of business on the Cut-off Date) minus the sum
of (i) the Pass-Through Rate on the Class A-1 Certificate, the Class A-2
Certificates, the Class B Certificates and the Class R Certificates and (ii)
1.55%. With respect to the Class SB Certificates, a fixed rate of 1.55%.
"Payment Adjustment Date": With respect to each GPARM Loan, the date
set forth in the related Mortgage Note on which the Monthly Payment may change
and each semi-annual anniversary of such date. The first Payment Adjustment Date
as to each GPARM Loan is set forth in the Mortgage Loan Schedule.
"Payment Cap": With respect to each GPARM Loan and each Payment
Adjustment Date, the amount (expressed as a percentage) by which the Monthly
Payment on such GPARM Loan due in the month preceding such Payment Adjustment
Date is multiplied for purposes of calculating the maximum amount to which the
Monthly Payment may be adjusted, as identified as such on the Mortgage Loan
Schedule.
"Percentage Interest": With respect to any Certificate (other than a
Residual Certificate), the undivided beneficial ownership interest in the
related Class evidenced by such Certificate, which as to each such Certificate
shall be equal to the initial Certificate Principal Balance (or portion of the
Notional Amount set forth on the face thereof, as applicable) thereof divided by
the aggregate initial Certificate Principal Balance (or Notional Amount, as
applicable) of all of the Certificates of the same Class, expressed as a
percentage carried to four decimal places. With respect to a Residual
Certificate, the interest in distributions to be made with respect to such Class
evidenced thereby, expressed as a percentage carried to four decimal places, as
stated on the face of such Certificate.
"Periodic Rate Cap": With respect to any Adjustable Rate Loan, the
provision in each related Mortgage Note that limits permissible increases and
decreases in the Mortgage Rate on any Adjustment Date other than the Initial
Adjustment Date (with respect to certain Adjustable Rate Loans).
"Permitted Instruments": Any one or more of the following:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations (the collateral for which is held by a
third party or the Trustee) with respect to any security described in
clause (i) above, provided that the long-term unsecured obligations of the
party agreeing to repurchase such obligations are at the time rated by
each Rating Agency in one of its two highest long-term rating categories;
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(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state thereof or the District of
Columbia, provided that the short-term commercial paper of such bank or
trust company (or, in the case of the principal depository institution in
a depository institution holding company, the long-term unsecured debt
obligations of the depository institution holding company) at the date of
acquisition thereof has been rated by each Rating Agency in its highest
short-term rating;
(iv) mutual funds organized under the Investment Company Act of 1940
rated not less than "AAAm" by Standard & Poor's, not less than "P-1" by
Moody's and not less than "D-1" by Duff & Phelps, if rated by Duff &
Phelps;
(v) commercial paper (having original maturities of not more than nine
months) of any corporation incorporated under the laws of the United
States or any state thereof or the District of Columbia which on the date
of acquisition has been rated by each Rating Agency in its highest
short-term rating; and
(vi) any other obligation or security acceptable to each Rating Agency
(as certified by a letter from each Rating Agency to the Trustee) in
respect of mortgage pass-through certificates rated in one of its two
highest rating categories;
provided, that no such instrument shall be a Permitted Instrument if such
instrument evidences either (a) the right to receive interest only payments with
respect to the obligations underlying such instrument or (b) both principal and
interest payments derived from obligations underlying such instrument where the
principal and interest payments with respect to such instrument provide a yield
to maturity exceeding 120% of the yield to maturity at par of such underlying
obligation.
"Permitted Transferee": Any transferee of a Class R Certificate
other than a Non- United States Person or Disqualified Organization.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Prepayment Assumption": A constant prepayment rate ("CPR") of 20%
per annum, used solely for determining the rate of accrual of original issue
discount, market discount and amortizable premium on the Certificates for
federal income tax purposes. A CPR represents an annualized constant assumed
rate of prepayment each month of a pool of mortgage loans relative to its then
outstanding principal balance for the life of such mortgage loans.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a partial Principal
Prepayment or a Principal Prepayment in full during the related Prepayment
Period, an amount equal to the amount of interest that
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would have accrued at the applicable Net Mortgage Rate on the principal balance
of such Mortgage Loan immediately prior to such prepayment, or in the case of a
partial Principal Prepayment on the amount of such prepayment, during the period
commencing on the date of prepayment, or in the case of a Principal Prepayment
in full the date as of which the prepayment is applied, and ending on the last
day of the month of prepayment.
"Prepayment Period": As to any Distribution Date, the calendar month preceding
the month in which such Distribution Date occurs.
"Primary Hazard Insurance Policy": Each primary hazard insurance
policy required to be maintained pursuant to the first or the second paragraph
of Section 3.13.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Prospective Losses": As of any Determination Date, an amount equal
to the sum of the following: (i) the product of (x) the aggregate Stated
Principal Balance of the Mortgage Loans delinquent from 31 to 60 days, (y) 25%
and (z) the Loss Severity Percentage; (ii) the product of (x) the aggregate
Stated Principal Balance of the Mortgage Loans delinquent 61 to 90 days, (y) 50%
and (z) the Loss Severity Percentage; and (iii) the product of (x) the aggregate
Stated Principal Balance of the Mortgage Loans delinquent 91 days or more plus
the aggregate Stated Principal Balance of any related REO Properties and (y) the
Loss Severity Percentage. For purposes of calculating Prospective Losses,
Mortgage Loans in foreclosure will be categorized based on their respective
number of days of delinquency.
"Purchase Price": With respect to any Mortgage Loan (or related REO
Property) required to be purchased pursuant to Section 2.02 or 2.04 or that the
Master Servicer is entitled to repurchase pursuant to Section 3.22, an amount
equal to the sum of (i) 100% of the Stated Principal Balance thereof, (ii)
unpaid accrued interest (or REO Imputed Interest) at the applicable Net Mortgage
Rate on the Stated Principal Balance thereof outstanding during each Due Period
that such interest was not paid or advanced, from the date through which
interest was last paid by the Mortgagor or advanced and distributed to
Certificateholders together with unpaid Servicing Fees from the date through
which interest was last paid by the Mortgagor, in each case to the first day of
the month in which such Purchase Price is to be distributed, plus (iii) the
aggregate of all Advances made in respect thereof that were not previously
reimbursed.
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A.
"Rating Agency": Moody's and Duff & Phelps or their respective
successors. If such agency and its successors are no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating agency,
or other comparable Person, designated by the
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Depositor, notice of which designation shall be given to the Trustee and Master
Servicer. References herein to the two highest long term debt rating categories
of Moody's shall mean "Aa2" or better and references herein to the highest
short-term debt rating of Moody's shall mean "Prime - 1" and in the case of any
other Rating Agency such references shall mean such rating categories without
regard to any plus or minus.
"Realized Loss": With respect to each Mortgage Loan or REO Property
as to which a Cash Liquidation or REO Disposition has occurred, an amount (not
less than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan
as of the date of such Cash Liquidation or REO Disposition, plus (ii) interest
(and REO Imputed Interest, if any) at the Net Mortgage Rate from the Due Date as
to which interest was last paid or advanced to Certificateholders up to the last
day of the month in which the Cash Liquidation or REO Disposition occurred on
the Stated Principal Balance of such Mortgage Loan outstanding during each Due
Period that such interest was not paid or advanced, minus (iii) the proceeds, if
any, received during the month in which such Cash Liquidation or REO Disposition
occurred, to the extent applied as recoveries of interest at the Net Mortgage
Rate and to principal of the Mortgage Loan, net of the portion thereof
reimbursable to the Master Servicer or any Sub-Servicer with respect to related
Advances not previously reimbursed. With respect to each Mortgage Loan which has
become the subject of a Deficient Valuation, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction, the amount of such Debt Service Reduction.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month of such Distribution
Date.
"Reference Banks": Bankers Trust Company, Barclay's Bank PLC, The
Bank of Tokyo and National Westminster Bank PLC, and their respective successors
in interest; PROVIDED that if any of the foregoing banks are not suitable to
serve as a Reference Bank, then any leading banks selected by the Trustee (i)
which are engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, (ii) which have an established place of business in London,
(iii) which are not controlling, under the control of or under common control
with the Depositor, the Seller or any affiliate thereof, (iv) whose quotations
appear on the Reuters Screen LIBO Page on the relevant Interest Determination
Date and (v) which have been designated as such by the Trustee.
"Regular Certificate": Any of the Certificates other than the Class
R Certificates.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final
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regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"REO Acquisition": The acquisition by the Master Servicer on behalf
of the Trustee for the benefit of the Certificateholders of any REO Property
pursuant to Section 3.15.
"REO Disposition": The final receipt by or on behalf of the Master
Servicer of all Insurance Proceeds, Liquidation Proceeds, REO Proceeds and other
payments and recoveries (including proceeds of a final sale) which the Master
Servicer expects to be finally recoverable from the sale or other disposition of
the REO Property.
"REO Imputed Interest": As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate that would have been
applicable to the related Mortgage Loan had it been outstanding net, with
respect to a GPARM Loan, of amounts that would have been Deferred Interest, if
any) on the unpaid principal balance of the Mortgage Loan as of the date of
acquisition thereof (as such balance is reduced pursuant to Section 3.15 by any
income from the REO Property treated as a recovery of principal and, with
respect to a GPARM Loan, as such balance would have been increased by the
addition of Deferred Interest).
"REO Proceeds": Proceeds, net of directly related expenses, received
in respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property and of any REO Disposition) which
proceeds are required to be deposited into the Custodial Account as and when
received.
"REO Property": A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibits F-1 or F-2 attached hereto.
"Reserve Interest Rate": With respect to any Distribution Date, the
rate per annum that the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/16 of 1%) of
the one-month U.S. dollar lending rates which New York City banks selected by
the Trustee are quoting on the related Interest Determination Date to the
principal London offices of leading banks in the London interbank market or (ii)
in the event that the Trustee can determine no such arithmetic mean, the lowest
one-month U.S. dollar lending rate which New York City banks selected by the
Trustee are quoting on such Interest Determination Date to leading European
banks.
"Residual Certificate": Any of the Class R Certificates.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the
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Chairman of the Committee on Trust Matters, any vice president, any assistant
vice president, the Secretary, any assistant secretary, the Treasurer, any
assistant treasurer, the Cashier, any assistant cashier, any trust officer, any
assistant trust officer, the Controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Rule 144A": Rule 144A under the Securities Act of 1933, as amended,
as in effect from time to time.
"Scheduled Principal and Net Recoveries": With respect to any
Distribution Date, an amount equal to the aggregate of the following:
(1) the principal portion of each Monthly Payment on the Outstanding
Mortgage Loans due on the related Due Date, whether or not received on or
prior to the related Determination Date, less the principal portion of
related Debt Service Reductions which constitute Excess Bankruptcy Losses;
(2) the Stated Principal Balance of any Mortgage Loan repurchased
during the related Prepayment Period; and
(3) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds received during the related Prepayment Period
minus the aggregate amount of expenses incurred by the Master Servicer in
connection with the liquidation of the related Mortgage Loans to the
extent such expenses are not otherwise recoverable from such Insurance
Proceeds, Liquidation Proceeds or REO Proceeds; but only to the extent
that any such amounts either (A) were not received in connection with a
Cash Liquidation or REO Disposition, or (B) were received in connection
with a Cash Liquidation or REO Disposition which resulted in an Excess
Special Hazard Loss, Excess Bankruptcy Loss, Excess Fraud Loss or
Extraordinary Loss.
"Second Step Margin": With respect to each Step Loan, the fixed
percentage amount set forth in the related Mortgage Note to be added to the
initial Mortgage Rate on the second Adjustment Date of such Step Loan in
accordance with the terms of the related Mortgage Note and used to determine the
Mortgage Rate for such Step Loan. The Second Step Margin as to each Step Loan is
set forth on the Mortgage Loan Schedule.
"Seller": Quality Mortgage USA, Inc., and its successors and
assigns.
"Seller's Warranty Certificate": The Seller's Warranty Certificate
dated the Closing Date and executed by the Seller with respect to the Mortgage
Loans purchased under the related Mortgage Loan Purchase Agreement between the
Seller and DLJMCI.
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"Senior Accrual Diversion Amount": With respect to any Distribution
Date, an amount equal to the lesser of (A) the Accrued Certificate Interest on
the Class SB Certificates for such Distribution Date, and (B) the amount, if
any, by which the aggregate of all Senior Accrual Diversion Amounts for all
preceding Distribution Dates is less than the sum of (i) an amount equal to
2.20% of the aggregate Certificate Principal Balance of all Classes of
Certificates as of the Cut-off Date and (ii) 100% of all Realized Losses
allocated to any class of Certificates on such Distribution Date and on all
preceding Distribution Dates (except to the extent such Realized Losses were
allocated to any of the Class A-1 Certificates, the Class A-2 Certificates or
the Class B Certificates on any such preceding Distribution Date).
"Senior Certificate": Any of the Class SA Certificates, the Class
A-1 Certificates or the Class A-2 Certificates.
"Senior Percentage": With respect to any Distribution Date, the sum
of the then applicable Class A-1 Percentage and the then applicable Class A-2
Percentage.
"Senior Prepayment Percentage": The Senior Prepayment Percentage
shall equal, with respect to any Distribution Date, the percentage indicated
below:
Senior Prepayment
DISTRIBUTION DATE PERCENTAGE
- - -----------------------------------------------
July 1996 through 100%
June 2006
July 2006 through Senior Percentage, plus 70% of
June 2007 the difference between 100% and the Senior
Percentage
July 2007 through Senior Percentage, plus 60% of
June 2008 the difference between 100% and the Senior
Percentage
July 2008 through Senior Percentage, plus 40% of
June 2009 the difference between 100% and the Senior
Percentage
July 2009 through Senior Percentage, plus 20% of
June 2010 the difference between 100% and the Senior
Percentage
July 2010 and Senior Percentage;
thereafter
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provided, however, (i) that any scheduled reduction to the Senior Prepayment
Percentage described above shall not occur as of any Distribution Date unless
(1) the outstanding principal balance of Mortgage Loans delinquent 60 days or
more (including foreclosure and REO Property) averaged over the last six months,
does not exceed 50% of the sum of the balance of the Class B Certificates and
the Class R Certificates averaged over the last six months and (2) Realized
Losses on the Mortgage Loans to date for such Distribution Date if occurring
during the eleventh, twelfth, thirteenth, fourteenth or fifteenth year (or any
year thereafter) after July 1996 are less than 30%, 35%, 40%, 45% and 50%,
respectively, of the sum of the Initial Certificate Principal Balances of the
Class B Certificates and 2.00% of the initial Certificate Principal Balances of
all of the Certificates. Notwithstanding the foregoing, upon the reduction of
the aggregate Certificate Principal Balance of the Senior Certificates to zero,
the Senior Prepayment Percentage will equal 0%.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred in connection with a default, delinquency
or other unanticipated event by the Master Servicer in the performance of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under the second paragraph of Section 3.01 and Section 3.09.
"Servicing Fee": As to each Mortgage Loan, an amount, payable out of
any payment of interest on the Mortgage Loan, equal to interest at the
applicable Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan for the calendar month preceding the month in which the payment is due
(alternatively, in the event such payment of interest accompanies a Principal
Prepayment in full made by the Mortgagor, interest for the number of days
covered by such payment of interest).
"Servicing Fee Rate": With respect to each Mortgage Loan, the per
annum rate of 0.500% with respect to Mortgage Loans underwritten under the
Seller's regular lending program and 0.750% with respect to Mortgage Loans
underwritten under the Seller's equity lending program.
"Servicing Officer": Any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans,
whose name and specimen signature appear on a list of servicing officers
furnished to the Trustee by the Master Servicer, as such list may from time to
time be amended.
"Single Certificate": A Certificate of any Class evidencing an
Initial Certificate Principal Balance of $1,000.
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"Special Hazard Amount": As of any Distribution Date, an amount
equal to $1,526,800 (the initial "Special Hazard Amount") minus the sum of (i)
the aggregate amount of Special Hazard Losses allocated solely to the Class A-2
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
SB Certificates and the Class R Certificates in accordance with Section 4.04 and
(ii) the Adjustment Amount (as defined below) as most recently calculated. For
each Anniversary, the Adjustment Amount shall be calculated and shall be equal
to the amount, if any, by which the amount calculated in accordance with the
preceding sentence (without giving effect to the deduction of the Adjustment
Amount for such Anniversary) exceeds the greater of (A) the product of the
Special Hazard Percentage for such Anniversary multiplied by the outstanding
principal balance of all the Mortgage Loans on such Anniversary and (B) twice
the outstanding principal balance of the Mortgage Loan in the Trust Fund which
has the largest outstanding principal balance on such Anniversary.
"Special Hazard Loss": Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, but not including (i) any loss of a
type covered by a hazard insurance policy or a flood insurance policy required
to be maintained in respect to such Mortgaged Property pursuant to Section 3.13
to the extent of the amount of such loss covered thereby, or (ii) any
Extraordinary Loss.
"Special Hazard Percentage": As of each Anniversary, the greater of
(i) 1% (or, if greater than 1%, the highest percentage of Mortgage Loans, by
principal balance, in any California zip code area) times the aggregate
principal balance of all of the Mortgage Loans on such Anniversary and (ii)
twice the principal balance of the single Mortgage Loan having the largest
principal balance.
"Standard & Poor's": Standard & Poor's Ratings Services, a division
of McGraw-Hill, Inc., or its successor in interest.
"Startup Day": The day designated as such pursuant to Article X
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
related REO Property at any given time, (i) the principal balance of the
Mortgage Loan outstanding as of the Cut-off Date, after application of principal
payments due on or before such date, whether or not received, plus (ii) with
respect to a GPARM Loan, any Deferred Interest added to the principal balance of
such Mortgage Loan pursuant to the terms of the Mortgage Note, minus (iii) the
sum of (a) the principal portion of the Monthly Payments due with respect to
such Mortgage Loan or REO Property during each Due Period ending prior to the
most recent Distribution Date which were distributed or with respect to which an
Advance was distributed, and (b) all Principal Prepayments with respect to such
Mortgage Loan or REO Property, and all Insurance Proceeds, Liquidation Proceeds
and net income from a REO Property to the extent applied by the Master Servicer
as recoveries of principal in accordance with Section 3.15 with respect to such
Mortgage Loan or REO Property, which were distributed pursuant to Section 4.01
on any previous Distribution Date, and (c) any Realized Loss with respect
thereto allocated pursuant to Section 4.04 for any previous Distribution Date.
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"Step Loan": Each of the step mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund, the Step Loans originally so transferred, assigned and held
being identified in the Mortgage Loan Schedule. As used herein, the term "Step
Loan" includes the related Mortgage Note and Mortgage.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub-Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicer Remittance Date": The 18th day of each month, or if
such day is not a Business Day, the immediately preceding Business Day.
"Sub-Servicing Account": An account established by a Sub-Servicer
which meets the requirements set forth in Section 3.08 and is otherwise
acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the Master
Servicer and a Sub-Servicer and any successor Sub-Servicer relating to servicing
and administration of certain Mortgage Loans as provided in Section 3.02.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of the Trust Fund due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
"Total Expected Losses": On any Distribution Date, the sum of (a)
the aggregate amount of Realized Losses on the Mortgage Loans previously
allocated solely to any of the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class R Certificates or the Class
SB Certificates and (b) the Prospective Losses as of such Determination Date.
"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 by Transfer of any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing 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,
with respect to which a REMIC
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election is to be made, consisting of: (i) the Mortgage Loans (exclusive of
payments of principal and interest due on or before the Cut-off Date, if any) as
from time to time are subject to this Agreement and all payments under and
proceeds of the Mortgage Loans (exclusive of any prepayment fees and late
payment charges received on the Mortgage Loans), together with all documents
included in the related Mortgage File, subject to Section 2.01; (ii) such funds
or assets as from time to time are deposited in the Custodial Account, the
Excess Proceeds Account or the Certificate Account; (iii) any REO Property; (iv)
the Primary Hazard Insurance Policies, if any, and all other Insurance Policies
with respect to the Mortgage Loans; and (v) the Depositor's interest in respect
of the representations and warranties made by the Seller in each Mortgage Loan
Purchase Agreement and in the Seller's Warranty Certificate, as assigned to the
Trustee pursuant to Section 2.04 hereof.
"Trustee": Bankers Trust Company, or its successor in interest, or
any successor trustee appointed as herein provided.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.13.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code or successor provisions.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 95% of all of the Voting Rights shall be allocated among
Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class B-1
Certificates and the Class B-2 Certificates in proportion to the outstanding
Certificate Principal Balances of their respective Certificates; and the Holders
of the Class SA Certificates, the Class SB Certificates, Class R Certificates
shall collectively be entitled to 2%, 2% and 1% respectively, of all of the
Voting Rights, allocated among the Certificates of each such Class in accordance
with their respective Percentage Interests.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign, transfer, sell, set over and
otherwise convey to the Trustee without recourse all the right, title and
interest of the Depositor in and to the Mortgage Loans identified on the
Mortgage Loan Schedule (exclusive of any prepayment fees and late payment
charges received thereon) and all other assets included or to be included in the
Trust Fund for the benefit of the Certificateholders. Such assignment includes
all principal and interest received by the Master Servicer on or with respect to
the Mortgage Loans (other than payment of principal and interest due on or
before the Cut-off Date).
The Master Servicer hereby acknowledges the receipt by it of cash in
an amount equal to $2,101.72 representing interest at the Net Mortgage Rate, for
the calendar month of June, 1996, for those Mortgage Loans which do not have
Monthly Payments due on July 1, 1996. The Master Servicer shall hold such amount
in the Custodial Account and shall include such amount in the Available
Distribution Amount for the Distribution Date in July, 1996.
In connection with the foregoing transfer and assignment of the
Mortgage Loans, the following documents or instruments shall be delivered to,
and deposited with, the Trustee with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse to the
order of "Bankers Trust Company, as trustee" with all intervening
endorsements showing a complete chain of endorsements from the originator
to the Person endorsing it to the Trustee;
(ii) the original recorded Mortgage or, if the original Mortgage has
not been returned from the applicable public recording office, a copy of
the Mortgage certified by the Seller to be a true and complete copy of the
original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of the Mortgage in
recordable form to "Bankers Trust Company, as trustee" or to "Bankers
Trust Company, as trustee for the holders of DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates";
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator thereof to the
Person assigning it to the Trustee or, if any such Assignment has not been
returned from the applicable public recording office, a copy of such
Assignment certified by the Seller to be a true and
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complete copy of the original Assignment submitted to the title insurance
company for recording;
(v) the original lender's title insurance policy, or, if such policy
has not been issued and if the Mortgage Loan was funded through a title
insurance company pursuant to escrow or closing instructions precluding
the title insurance company or other comparable escrow or closing agent
from funding until it is prepared to issue the required title insurance
coverage, a copy of such escrow or closing instructions;
(vi) the original of any assumption, modification, extension or
guaranty agreement;
(vii) the original or a copy of the preliminary title report (or
equivalent thereof) on the Mortgage Property;
(viii) if any of the documents or instruments referred to above was
executed on behalf of the Mortgagor by another Person, the original power
of attorney or other instrument that authorized and empowered such Person
to sign, or a copy thereof certified by the Seller (or by an officer of
the applicable title insurance or escrow company) to be a true and correct
copy of the original; and
(ix) with respect to any High Cost Loan, the notice to assignees
that the Mortgage Loan is subject to special truth in lending rules, to
the extent required by applicable law.
The Depositor hereby assigns to the Trustee, for the benefit of the
Certificateholders, its interest in respect of the obligations of the Seller to
deliver the Mortgage Files with respect to the Mortgage Loans. Insofar as any
Mortgage Loan Purchase Agreement or the Seller's Warranty Certificate relates to
any such obligation and any remedies provided thereunder for any breach of such
obligations, such right, title and interest may be enforced by the Trustee on
behalf of the Certificateholders.
The Seller is obligated pursuant to each Mortgage Loan Purchase
Agreement to deliver to the Trustee: (a) either the original recorded Mortgage,
or in the event such original cannot be delivered by the Seller, a copy of such
Mortgage certified as true and complete by the appropriate recording office, in
those instances where a copy thereof certified by the Seller was delivered to
the Trustee pursuant to clause (ii) above; and (b) either the original
Assignment or Assignments of the Mortgage, with evidence of recording thereon,
showing a complete chain of assignment from the originator to the Seller, or in
the event such original cannot be delivered by the Seller, a copy of such
Assignment or Assignments certified as true and complete by the appropriate
recording office, in those instances where copies thereof certified by the
Seller were delivered to the Trustee pursuant to clause (iv) above.
Notwithstanding anything to the contrary contained in this Section 2.01, in
those instances where the public recording office retains the original Mortgage
after it has been recorded, the Seller shall be deemed to have satisfied its
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obligations hereunder upon delivery to the Trustee of a copy of such Mortgage
certified by the public recording office to be a true and complete copy of the
recorded original thereof.
As promptly as practicable after the Closing Date, the Seller shall
cause to be delivered to the appropriate public office for recordation in the
real property records the Assignment referred to in clause (iii) and to the
extent necessary in clause (iv) of this Section 2.01. While such Assignment to
be recorded is being recorded, the Trustee shall retain a photocopy of such
Assignment. If any Assignment is lost or returned unrecorded to the Trustee
because of any defect therein, the Seller is required to prepare a substitute
Assignment or cure such defect, as the case may be, and the Trustee shall cause
such Assignment to be recorded in accordance with this paragraph.
The Seller is required under each Mortgage Loan Purchase Agreement
to exercise its best reasonable efforts to deliver or cause to be delivered to
the Trustee within 120 days of the Closing Date, or such other date as is set
forth in such Mortgage Loan Purchase Agreement, the original or a photocopy of
the title insurance policy with respect to each of the related Mortgage Loan,
assigned to the Trustee pursuant to this Section 2.01.
All original documents relating to the Mortgage Loans which are not
delivered to the Trustee, to the extent delivered by the Seller to the Master
Servicer, are and shall be held by the Master Servicer in trust for the benefit
of the Trustee on behalf of the Certificateholders.
Except as may otherwise expressly be provided herein, neither the
Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer
shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer
any interest in the Trust Fund or any portion thereof, or permit the Trust Fund
or any portion thereof to be subject to any lien, claim, mortgage, security
interest, pledge or other encumbrance of, any other Person.
It is intended that the conveyance of the Mortgage Loans by the
Depositor to the Trustee as provided in this Section be, and be construed as, a
sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of
the Certificateholders. It is, further, not intended that such conveyance be
deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure
a debt or other obligation of the Depositor. However, in the event that the
Mortgage Loans are held to be property of the Depositor, or if for any reason
this Agreement is held or deemed to create a security interest in the Mortgage
Loans, then it is intended that, (a) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed to
be (1) a grant by the Depositor to the Trustee of a security interest in all of
the Depositor's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments,
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securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account, the Excess Proceeds Account
or the Custodial Account, whether in the form of cash, instruments, securities
or other property and (2) an assignment by the Depositor to the Trustee of any
security interest in any and all of the Seller's or DLJMCI's right (including
the power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to the property described in the foregoing clauses
(1)(A) through (C) granted by the Seller to the Depositor pursuant to the
related Mortgage Loan Purchase Agreements or granted by DLJMCI to the Depositor
pursuant to the Assignment Agreement; (c) the possession by the Trustee or its
agent of Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or a person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor and the Trustee at
the Depositor's direction shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Agreement.
SECTION 2.02. Acceptance of the Trust Fund by the Trustee.
The Trustee acknowledges receipt (subject to any exceptions noted in
the Initial Certification described below) of the documents referred to in
Section 2.01 above and all other assets included in the Trust Fund and declares
that it holds and will hold such documents and the other documents delivered to
it constituting the Mortgage Files, and that it holds or will hold such other
assets included in the Trust Fund (to the extent delivered or assigned to the
Trustee), in trust for the exclusive use and benefit of all present and future
Certificateholders.
The Trustee agrees, for the benefit of the Certificateholders, to
review each Mortgage File on or before the Closing Date to ascertain that all
documents required to be delivered to it are in its possession, and the Trustee
agrees to execute and deliver to the Depositor and the Master Servicer on the
Closing Date an Initial Certification in the form annexed hereto as Exhibit C to
the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
documents required to be delivered to it pursuant to this Agreement with respect
to such Mortgage Loan are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage Loan
and (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (i) - (vii), (xi), (xii), (xiv), (xv), (xiii) and
(xvii)
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of the definition of the "Mortgage Loan Schedule" accurately reflects
information set forth in the Mortgage File. Neither the Trustee nor the Master
Servicer shall be under any duty to determine whether any Mortgage File should
include any of the documents specified in clauses (vi) or (ix) of Section 2.01.
Neither the Trustee nor the Master Servicer shall be under any duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded or that they are other than what they purport to be on their face.
Within 90 days of the Closing Date the Trustee shall deliver to the
Depositor and the Master Servicer a Final Certification in the form annexed
hereto as Exhibit D evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
If in the process of reviewing the Mortgage Files and preparing the
certifications referred to above the Trustee finds any document or documents
constituting a part of a Mortgage File to be missing or defective in any
material respect and in such a manner as to materially and adversely affect the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall promptly notify the Seller, the Master Servicer and the Depositor. The
Trustee shall promptly notify the Seller of such defect and request that the
Seller cure any such defect within 60 days from the date on which the Seller was
notified of such defect, and if the Seller does not cure such defect in all
material respects during such period, request that the Seller purchase such
Mortgage Loan from the Trust Fund on behalf of the Certificateholders at the
Purchase Price, plus all other amounts due under the related Mortgage Loan
Purchase Agreement in respect thereof, within 90 days after the date on which
the Seller was notified of such defect. It is understood and agreed that the
obligation of the Seller to cure a material defect in, or purchase any Mortgage
Loan as to which a material defect in a constituent document exists shall
constitute the sole remedy respecting such defect available to
Certificateholders or the Trustee on behalf of Certificateholders. The Purchase
Price and such other amounts for the purchased Mortgage Loan shall be deposited
or caused to be deposited upon receipt by the Master Servicer in the Custodial
Account and, upon receipt by the Trustee of written notification of such deposit
signed by a Servicing Officer, the Trustee shall release or cause to be released
to the Seller the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall require as necessary to vest in the Seller ownership of any
Mortgage Loan released pursuant hereto and at such time the Trustee shall have
no further responsibility with respect to the related Mortgage File.
SECTION 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Depositor.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Depositor and the Trustee for the benefit of
Certificateholders that:
(i) The Master Servicer is, and throughout the term hereof shall
remain, a corporation duly organized, validly existing and in good
standing under the
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laws of the State of Nevada (except as otherwise permitted pursuant to
Section 6.02), the Master Servicer is, and shall remain, in compliance
with the laws of each state in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement, and
the Master Servicer is, and shall remain, approved to sell mortgage loans
to and service mortgage loans for FNMA and FHLMC;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
charter or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Depositor and the Trustee, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against the Master
Servicer in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation is likely to affect materially and adversely
either the ability of the Master Servicer to perform its obligations under
this Agreement or the financial condition of the Master Servicer;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement or is likely to affect materially and adversely
either the ability of the Master Servicer to perform its obligations under
this Agreement or the financial condition of the Master Servicer;
(vii) The Master Servicer will comply in all material respects in
the performance of this Agreement with all reasonable rules and
requirements of each insurer under each Insurance Policy;
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(viii) The execution of this Agreement and the performance of the
Master Servicer's obligations hereunder do not require any license,
consent or approval of any state or federal court, agency, regulatory
authority or other governmental body having jurisdiction over the Master
Servicer, other than such as have been obtained; and
(ix) No information, certificate of an officer, statement
furnished in writing or report delivered to the Depositor, any affiliate
of the Depositor or the Trustee by the Master Servicer will, to the
knowledge of the Master Servicer, contain any untrue statement of a
material fact or omit a material fact necessary to make the information,
certificate, statement or report not misleading.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.03(a) shall survive the execution and
delivery of this Agreement, and shall inure to the benefit of the Depositor, the
Trustee and the Certificateholders. Upon discovery by the Depositor, the Trustee
or the Master Servicer of a breach of any of the foregoing representations,
warranties and covenants that materially and adversely affects the interests of
the Depositor or the Trustee, the party discovering such breach shall give
prompt written notice to the other parties.
(b) The Depositor hereby represents and warrants to the Master
Servicer and the Trustee for the benefit of Certificateholders that as of the
Closing Date (or, if otherwise specified below, as of the date so specified):
(i) Assuming that representation (v) of the Seller set forth in
Exhibit J hereto is true and correct, then immediately prior to the
assignment of the Mortgage Loans to the Trustee, the Depositor had
good title to, and was the sole owner of, each Mortgage Loan free
and clear of any pledge, lien, encumbrance or security interest
(other than rights to servicing and related compensation) and such
assignment validly transfers ownership of the Mortgage Loans to the
Trustee free and clear of any pledge, lien, encumbrance or security
interest; and
(ii) The representations and warranties of the Seller with
respect to the Mortgage Loans and the remedies therefor that are
contained in the related Mortgage Loan Purchase Agreements and in
the Seller's Warranty Certificate are as set forth in Exhibit J
hereto.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee.
Upon discovery by either the Depositor, the Master Servicer or the
Trustee of a breach of any representation or warranty set forth in this Section
2.03 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties.
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SECTION 2.04. Representations and Warranties of the Seller.
The Depositor hereby assigns to the Trustee for the benefit of the
Certificateholders its interest in respect of the representations and warranties
made by the Seller in each Mortgage Loan Purchase Agreement or the exhibits
thereto and in the Seller's Warranty Certificate. Insofar as any Mortgage Loan
Purchase Agreement or the Seller's Warranty Certificate relates to any such
representations and warranties and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Trustee on behalf of the Certificateholders. Upon the
discovery by the Depositor, the Master Servicer or the Trustee of a breach of
any of the representations and warranties made in any Mortgage Loan Purchase
Agreement or the Seller's Warranty Certificate in respect of any Mortgage Loan
which are set forth in Exhibit J attached hereto which materially and adversely
affects the interests of the Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties.
The Trustee shall promptly notify the Seller of such breach and request that
such Seller shall, within 90 days from the date that the Depositor, the Master
Servicer or the Trustee was notified of such breach, either (i) cure such breach
in all material respects or (ii) purchase such Mortgage Loan from the Trust Fund
at the Purchase Price, plus all other amounts due under the related Mortgage
Loan Purchase Agreement in respect thereof and in the manner set forth in
Section 2.02. Except as expressly set forth herein neither the Trustee nor the
Master Servicer is under any obligation to discover any breach of the above
mentioned representations and warranties. It is understood and agreed that the
obligation of the Seller to cure such breach or purchase such Mortgage Loan as
to which such a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to Certificateholders or the Trustee on
behalf of Certificateholders.
SECTION 2.05. Issuance of Certificates Evidencing Interests in the
Trust Fund.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery of the Mortgage Files to it together with the assignment to it
of all other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor, executed by an
officer of the Depositor, has executed and caused to be authenticated and
delivered to, or upon the order of, the Depositor the Certificates in authorized
denominations which evidence ownership of the entire Trust Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans
in accordance with this Agreement, the related Mortgage Notes and Mortgages and
the customary and usual standards of practice of prudent mortgage lenders in the
respective states in which the Mortgaged Properties are located, and shall have
full power and authority, acting alone and/or through Sub-Servicers as provided
in Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Master Servicer in its own
name or in the name of a Sub-Servicer is hereby authorized and empowered by the
Trustee when the Master Servicer believes it appropriate in its best judgment,
to (i) execute and deliver, on behalf of the Certificateholders and the Trustee
or any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties, (ii) institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and (iii) cause title to such properties to be
held by the Trustee or its nominee, on behalf of Certificateholders. The Master
Servicer shall service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the Mortgagors any reports
required to be provided to them thereby. Subject to Section 3.16, the Trustee
shall execute based on the written request of the Master Servicer and furnish to
the Master Servicer and any Sub-Servicer any special or limited powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer and any Sub-Servicer to carry out their servicing and administrative
duties hereunder. The Trustee shall not be liable for any action taken by the
Master Servicer or any Sub-Servicer pursuant to the application of such special
or limited powers of attorney.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.09, and further as
provided in Section 3.11. No costs incurred by the Master Servicer or by
Sub-Servicers in effecting the payment of taxes and assessments on the Mortgaged
Properties shall, for the purpose of calculating distributions to
Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit.
It is expressly understood and agreed that in light of the
underwriting criteria applicable to the Mortgage Loans, special servicing
procedures are desirable in order to minimize the delinquency and loss
experience of the Mortgage Loans. The Master Servicer
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hereby covenants that it will use reasonable efforts to prevent and to resolve
delinquencies promptly and appropriately in light of the underwriting criteria
applicable to the Mortgage Loans and that it will modify its procedures from
time to time in accordance with the reasonable written request of the Depositor.
Notwithstanding anything in this Agreement to the contrary, the Master Servicer
shall not (unless the Mortgagor is in default with respect to the Mortgage Loan
or such default is, in the judgment of the Master Servicer, reasonably
foreseeable) make or permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (i) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and cause the Trust Fund to fail to
qualify as a REMIC under the Code or (ii) cause the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
The relationship of the Master Servicer (and of any successor to the
Master Servicer under this Agreement) to the Trustee under this Agreement is
intended by the parties to be that of an independent contractor and not that of
a joint venturer, partner or agent.
SECTION 3.02. Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing Agreements with
SubServicers for the servicing and administration of the Mortgage Loans and for
the performance of any and all other activities of the Master Servicer
hereunder. Each Sub-Servicer shall be either (i) an institution the accounts of
which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the SubServicer to perform its obligations
hereunder and under the Sub-Servicing Agreement, and in either case shall be a
FHLMC or FNMA approved mortgage servicer. Each Sub-Servicing Agreement must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Mortgage Loans consistent with
the terms of this Agreement. With the consent of the Trustee, which consent
shall not be unreasonably withheld, the Master Servicer and the Sub-Servicers
may enter into Sub-Servicing Agreements and make amendments to the Sub-Servicing
Agreements or enter into different forms of Sub-Servicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Certificateholders, without the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights.
(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the Certificateholders, shall
enforce the obligations of each SubServicer under the related Sub-Servicing
Agreement, including, without limitation, any obligation to make advances in
respect of delinquent payments as required by a Sub-Servicing Agreement.
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Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, but shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
The Master Servicer shall be entitled to terminate any Sub-Servicing
Agreement and the rights and obligations of any Sub-Servicer pursuant to any
Sub-Servicing Agreement in accordance with the terms and conditions of such
Sub-Servicing Agreement. In the event of termination of any Sub-Servicer, all
servicing obligations of such Sub-Servicer shall be assumed simultaneously by
the Master Servicer without any act or deed on the part of such Sub-Servicer or
the Master Servicer, and the Master Servicer either shall service directly the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02. Each Sub-Servicing
Agreement, if any, shall include the provision that such agreement may be
immediately terminated by any successor Master Servicer without cause and
without payment of any fee or penalty in the event that the Master Servicer
shall, for any reason, no longer be the Master Servicer (including by reason of
an Event of Default).
Any Sub-Servicing Agreement entered into by the Master Servicer
shall include the provision that such agreement may be immediately terminated
without cause and without any termination fee by any successor Master Servicer
hereunder.
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Master
Servicer and a SubServicer or reference to actions taken through a Sub-Servicer
or otherwise, the Master Servicer shall remain obligated and primarily liable to
the Trustee and Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the Sub-Servicer
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. For purposes
of this Agreement, the Master Servicer shall be deemed to have received payments
on Mortgage Loans when the Sub-Servicer has received such payments. The Master
Servicer shall be entitled to enter into any agreement with a SubServicer for
indemnification of the Master Servicer by such Sub-Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
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SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.06.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee.
In the event the Master Servicer shall for any reason no longer be
the master servicer (including by reason of an Event of Default), the Trustee or
its designee shall thereupon assume all of the rights and obligations of the
Master Servicer under each Sub-Servicing Agreement that the Master Servicer may
have entered into, unless the Trustee is then permitted and elects to terminate
any Sub-Servicing Agreement in accordance with its terms. Subject to Section
3.03, the Trustee, its designee or the successor servicer for the Trustee shall
be deemed to have assumed all of the Master Servicer's interest therein and to
have replaced the Master Servicer as a party to each Sub-Servicing Agreement to
the same extent as if the Sub-Servicing Agreements had been assigned to the
assuming party, except that the Master Servicer shall not thereby be relieved of
any liability or obligations under the Sub-Servicing Agreements, and the Master
Servicer shall continue to be entitled to any rights or benefits which arose
prior to its termination as master servicer.
The Master Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Sub-Servicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any related Insurance Policy, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. The Master Servicer shall not be
required to institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note, Primary Hazard Insurance
Policy or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that it is prohibited by
applicable law from enforcing the provision of the Mortgage or other instrument
pursuant to which such payment is required. Notwithstanding the
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foregoing, the Master Servicer may not waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan without the express written consent of the Seller, except as
otherwise required under applicable law. The Master Servicer shall be
responsible for preparing and distributing all information statements relating
to payments on the Mortgage Loans, in accordance with all applicable federal and
state tax laws and regulations.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
otherwise be acceptable to the Master Servicer. All amounts held in a
Sub-Servicing Account shall be held in trust for the Trustee for the benefit of
the Certificateholders. The Sub-Servicer will be required to deposit into the
Sub-Servicing Account no later than the first Business Day after receipt all
proceeds of Mortgage Loans received by the Sub-Servicer, less its servicing
compensation and any unreimbursed expenses and advances, to the extent permitted
by the Sub-Servicing Agreement. On each Sub-Servicer Remittance Date the
Sub-Servicer will be required to remit to the Master Servicer all funds held in
the SubServicing Account with respect to any Mortgage Loan as of the
Sub-Servicer Remittance Date, after deducting from such remittance an amount
equal to the servicing compensation and unreimbursed expenses and advances to
which it is then entitled pursuant to the related SubServicing Agreement, to the
extent not previously paid to or retained by it. In addition, on each
Sub-Servicer Remittance Date the Sub-Servicer will be required to remit to the
Master Servicer any amounts required to be advanced pursuant to the related
Sub-Servicing Agreement. The Sub-Servicer will also be required to remit to the
Master Servicer, within one Business Day of receipt, the proceeds of any
Principal Prepayment made by the Mortgagor and any Insurance Proceeds or
Liquidation Proceeds.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
The Master Servicer and the Sub-Servicers shall establish and
maintain one or more accounts (the "Servicing Accounts"), and shall deposit and
retain therein all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, Primary Hazard Insurance
Policy premiums, and comparable items for the account of the Mortgagors, to the
extent that the Master Servicer customarily escrows for such amounts.
Withdrawals of amounts so collected from a Servicing Account may be made only to
(i) effect payment of taxes, assessments, Primary Hazard Insurance Policy
premiums and comparable items; (ii) reimburse the Master Servicer (or a
Sub-Servicer to the extent provided in the related Sub-Servicing Agreement) out
of related collections for any payments made pursuant to Sections 3.01 (with
respect to taxes and assessments), and 3.13 (with respect to Primary Hazard
Insurance Policies); (iii) refund to Mortgagors any sums as may be determined to
be overages; or (iv) clear and terminate the Servicing Account at the
termination of this Agreement pursuant
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to Section 9.01. As part of its servicing duties, the Master Servicer or
Sub-Servicers shall, if and to the extent required by law, pay to the Mortgagors
interest on funds in Servicing Accounts from its or their own funds, without any
reimbursement therefor.
SECTION 3.10. Custodial Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Custodial Account") in which the Master Servicer
shall deposit or cause to be deposited on a daily basis, or as and when received
from the Sub-Servicers, the following payments and collections received or made
by or on behalf of it subsequent to the Cut-off Date, or received by it prior to
the Cut-off Date but allocable to a period subsequent thereto (other than in
respect of principal and interest on the Mortgage Loans due on or before the
Cut-off Date):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans,
exclusive of any portion thereof representing interest in excess of the
related Net Mortgage Rate;
(iii) all Insurance Proceeds, other than proceeds that represent
reimbursement of costs and expenses incurred by the Master Servicer in
connection with presenting claims under the related Insurance Policies,
Liquidation Proceeds and REO Proceeds;
(iv) all proceeds of any Mortgage Loan or REO Property repurchased
or purchased in accordance with Sections 2.02, 2.04, 3.22 or 9.01;
(v) any amounts required to be deposited pursuant to Sections 3.12
or 3.13; and
(vi) all amounts transferred from the Certificate Account to the
Custodial Account in accordance with Section 4.01(b).
The foregoing requirements for deposit in the Custodial Account
shall be exclusive. In the event the Master Servicer shall deposit in the
Custodial Account any amount not required to be deposited therein, it may
withdraw such amount from the Custodial Account, any provision herein to the
contrary notwithstanding. The Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for mortgage
pass-through certificates of other series, and the other accounts of the Master
Servicer.
(b) Funds in the Custodial Account may be invested in Permitted
Instruments in accordance with the provisions set forth in Section 3.12. The
Master Servicer shall give notice to the Trustee and the Depositor of the
location of the Custodial Account after any change thereof.
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(c) Payments in the nature of prepayment fees and late payment
charges received on the Mortgage Loans shall not be deposited in the Custodial
Account, but rather shall be received and held by the Master Servicer solely for
the benefit of and at the direction of the Seller. Upon receipt, such amounts
shall be deposited by the Master Servicer into a separate account meeting the
requirements for an Eligible Account, and such amounts shall be distributed by
the Master Servicer to the Seller on a monthly basis. Such amounts shall not be
applied or made available by the Master Servicer for any other purpose.
SECTION 3.11. Permitted Withdrawals From the Custodial Account.
The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.10 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts and
in the manner provided for in Section 4.01;
(ii) to pay to itself, the Depositor, the Seller or any other
appropriate person, as the case may be, with respect to each Mortgage Loan
that has previously been purchased or repurchased pursuant to Sections
2.02, 2.04, 3.22 or 9.01 all amounts received thereon and not yet
distributed as of the date of purchase or repurchase;
(iii) to reimburse itself or any Sub-Servicer for Advances not
previously reimbursed, the Master Servicer's or any Sub-Servicer's right
to reimbursement pursuant to this clause (iii) being limited to amounts
received which represent Late Collections (net of the Servicing Fees) of
Monthly Payments on Mortgage Loans or REO Property with respect to which
such Advances were made and as further provided in Section 3.15;
(iv) to reimburse itself, the Trustee or the Depositor for expenses
incurred by or reimbursable to the Master Servicer, the Trustee or the
Depositor pursuant to Sections 3.22, 6.03 or 10.01(c), except as otherwise
provided in such Sections;
(v) to reimburse itself or any Sub-Servicer for costs and expenses
incurred by or reimbursable to it relating to the prosecution of any
claims pursuant to Section 3.13 that are in excess of the amounts so
recovered;
(vi) to reimburse itself or any Sub-Servicer for unpaid Servicing
Fees and unreimbursed Servicing Advances, the Master Servicer's or any
Sub-Servicer's right to reimbursement pursuant to this clause (vi) with
respect to any Mortgage Loan being limited to late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.09 and any other related Late Collections;
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(vii) to pay itself as servicing compensation (in addition to
Servicing Fees), on or after each Distribution Date, any interest or
investment income earned on funds deposited in the Custodial Account for
the period ending on such Distribution Date, subject to Section 8.05;
(viii) to reimburse itself or any Sub-Servicer for (a) any Advance
previously made which the Master Servicer has determined to be a
Nonrecoverable or (b) any Advance previously made with respect to a
delinquency that ultimately constituted
an Excess Special Hazard Loss, Excess Fraud Loss, Excess Bankruptcy Loss
or Extraordinary Loss; and
(ix) to clear and terminate the Custodial Account at the termination
of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying
any withdrawal from the Custodial Account pursuant to such clauses (ii), (iii),
(iv), (vi), (vii) and (viii).
In connection with clause (viii) above, the Trustee shall notify the
Master Servicer if and when the Certificate Principal Balances of the Class A-2
Certificates, the Class B-1 Certificates, the Class B-2 Certificates or the
Class R Certificates have been reduced to zero.
SECTION 3.12. Permitted Instruments.
Any institution maintaining the Custodial Account shall at the
direction of the Master Servicer invest the funds in such account in Permitted
Instruments, each of which shall mature not later than the Business Day
immediately preceding the Certificate Account Deposit Date next following the
date of such investment (except that if such Permitted Instrument is an
obligation of the institution that maintains such account, then such Permitted
Instrument shall mature not later than such Certificate Account Deposit Date)
and shall not be sold or disposed of prior to its maturity. All income and gain
realized from any such investment as well as any interest earned on deposits in
the Custodial Account shall be for the benefit of the Master Servicer. The
Master Servicer shall deposit in the Custodial Account (with respect to
investments made hereunder of funds held therein) an amount equal to the amount
of any loss incurred in respect of any such investment immediately upon
realization of such loss without right of reimbursement.
SECTION 3.13. Maintenance of Primary Hazard Insurance.
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan primary hazard insurance with extended coverage on the related
Mortgaged Property in an amount equal to the replacement value of the
improvements, as determined by the insurance company, on such Mortgaged
Property. The Master Servicer shall also cause to be maintained on property
acquired upon foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan,
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fire insurance with extended coverage in an amount equal to the replacement
value of the improvements thereon. Pursuant to Section 3.10, any amounts
collected by the Master Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.11. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not, for
the purpose of calculating monthly distributions to Certificateholders, be added
to the amount owing under the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. When the improvements securing a Mortgage
Loan are located at any time during the life of such Mortgage Loan in a
federally designated special flood hazard area, the Master Servicer shall cause
flood insurance (to the extent available) to be maintained in respect thereof.
Such flood insurance shall be in an amount equal to the lesser of (i) the
replacement value of the improvements, which are part of such Mortgaged Property
on a replacement cost basis and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Master Servicer shall obtain and maintain a
blanket fire insurance policy with extended coverage insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with the first two sentences of this Section 3.13 and there shall have
been a loss which would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Any such deposit by the Master Servicer shall
be made on the Certificate Account Deposit Date next preceding the Distribution
Date which occurs in the month following the month in which payments under any
such policy would have been deposited in the Custodial Account. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy.
SECTION 3.14. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note or the
Mortgage), exercise or cause to be exercised its rights to accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause applicable
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thereto; provided, however, that the Master Servicer shall not exercise any such
rights if it reasonably believes that it is prohibited by law from doing so. If
the Master Servicer is unable to enforce such "due-on-sale" clause (as provided
in the previous sentence) or if no "due-on-sale" clause is applicable, the
Master Servicer or the Sub-Servicer will enter into an assumption and
modification agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state law,
the Mortgagor remains liable thereon. The Master Servicer is also authorized to
enter into a substitution of liability agreement with such Person, pursuant to
which the original Mortgagor is released from liability and such Person is
substituted as the Mortgagor and becomes liable under the Mortgage Note. Any fee
collected by or on behalf of the Master Servicer for entering into an assumption
or substitution of liability agreement will be retained by or on behalf of the
Master Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the Mortgage Rate, the amount of the Monthly Payment, the Maximum
Rate, the Minimum Rate, the Gross Margin, the First Step Margin, the Second Step
Margin, the Periodic Rate Cap (to the extent that such terms apply to any
Mortgage Loan) and any other term affecting the amount or timing of payment on
the Mortgage Loan) may be changed. The Master Servicer shall not enter into any
substitution or assumption if such substitution or assumption shall (i)
constitute a "significant modification" effecting an exchange or reissuance of
such Mortgage Loan under the Code (or final, temporary or proposed Treasury
Regulations promulgated thereunder) and cause the Trust Fund to fail to qualify
as a REMIC under the REMIC Provisions or (ii) cause the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC provisions. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original copy of such substitution or assumption agreement, which
copy shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Master Servicer shall not be deemed to be in default, breach
or any other violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or any assumption that the Master
Servicer may be restricted by law from preventing, for any reason whatsoever.
For purposes of this Section 3.14, the term "assumption" is deemed to also
include a sale of a Mortgaged Property that is not accompanied by an assumption
or substitution of liability agreement.
SECTION 3.15. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall exercise reasonable efforts, consistent
with the procedures that the Master Servicer would use in servicing loans for
its own account, to foreclose upon or otherwise comparably convert (which may
include an REO Acquisition) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent
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payments pursuant to Section 3.07, and which are not released from the Trust
Fund pursuant to any other provision hereof. The Master Servicer shall use
reasonable efforts to realize upon such defaulted Mortgage Loans in such manner
as will maximize the receipt of principal and interest by Certificateholders,
taking into account, among other things, the timing of foreclosure proceedings.
The foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Master Servicer
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its sole discretion (i) that such
restoration will increase the net proceeds of liquidation of the related
Mortgage Loan to Certificateholders after reimbursement to itself for such
expenses, and (ii) that such expenses will be recoverable by the Master Servicer
through Insurance Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in Section 3.11.
The proceeds of any Cash Liquidation or REO Disposition or short
payoff of a Mortgage Loan, as well as any recovery resulting from a partial
collection of Insurance Proceeds or Liquidation Proceeds or any income from an
REO Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11(vi) or 3.22; second, to accrued and
unpaid interest on the Mortgage Loan or REO Imputed Interest at the Mortgage
Rate, to the last day of the month in which the Cash Liquidation or REO
Disposition occurred, or to the Due Date prior to the Distribution Date on which
such amounts are to be distributed if not in connection with a Cash Liquidation
or REO Disposition; and third, as a recovery of principal of the Mortgage Loan.
If the amount of the recovery so allocated to interest is less than a full
recovery thereof, that amount will be allocated as follows: first, to unpaid
Servicing Fees; and second, to interest at the Net Mortgage Rate. The portion of
the recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Master Servicer or any Sub-Servicer pursuant to Section 3.11(vi). The portions
of the recovery so allocated to interest at the Net Mortgage Rate and to
principal of the Mortgage Loan shall be applied as follows: first, to reimburse
the Master Servicer or any Sub-Servicer for any related unreimbursed Advances in
accordance with Section 3.11(iii) or 3.22, and second, for distribution in
accordance with the provisions of Section 4.01(b), subject to Section 3.22 with
respect to certain recoveries from an REO Disposition constituting Excess
Proceeds.
Notwithstanding any other provision of this Agreement, no REO
Property shall be acquired by the Trust Fund in such circumstances or manner or
pursuant to any terms that would (i) cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(unless all such REO Property not treated as "foreclosure property" held by the
REMIC at any given time constitutes not more than a DE MINIMIS amount of the
assets of the REMIC within the meaning of Treasury regulation Section
1.860D-1(b)(3)(i) and (ii)), or (ii) subject the Trust Fund to the imposition of
any federal income taxes under the Code, unless the Master Servicer has agreed
to indemnify and hold harmless the Trust Fund with respect to the imposition of
any such taxes.
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SECTION 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Custodial Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Mortgage File in the form of the Request for
Release attached hereto as Exhibit F-2. Upon receipt of such certification and
request, the Trustee shall promptly release the related Mortgage File to the
Master Servicer. Subject to the receipt by the Master Servicer of the proceeds
of such payment in full and the payment of all related fees and expenses, the
Master Servicer shall arrange for the release to the Mortgagor of the original
cancelled Mortgage Note. All other documents in the Mortgage File shall be
retained by the Master Servicer to the extent required by applicable law. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account, the Excess Proceeds
Account or the Certificate Account.
From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loan, the Trustee shall, upon
request of the Master Servicer and delivery to the Trustee of a Request for
Release in the form attached hereto as Exhibit F-1, release the related Mortgage
File to the Master Servicer, and the Trustee shall execute such documents as the
Master Servicer shall prepare and request as being necessary to the prosecution
of any such proceedings. Such Request for Release shall obligate the Master
Servicer to return each document previously requested from the Mortgage File to
the Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account or
the Mortgage File or such document has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certification of a Servicing Officer in the form of the
Request for Release attached hereto as Exhibit F-1, stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Custodial Account have been or will be so deposited, or that such Mortgage Loan
has become an REO Property, a copy of such Request for Release shall be released
by the Trustee to the Master Servicer.
Upon written request of a Servicing Officer, the Trustee shall
execute and deliver to the Master Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Master Servicer that are
necessary to the foreclosure or trustee's sale in respect
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of a Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. Each such request
that such pleadings or documents be executed by the Trustee shall include a
certification as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.17. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain, from deposits to the Custodial Account of amounts
representing payments or recoveries of interest, the Servicing Fees with respect
to each Mortgage Loan (less any portion of such amounts retained by any
Sub-Servicer). In addition, the Master Servicer shall be entitled to recover
unpaid Servicing Fees out of related Late Collections to the extent permitted in
Section 3.11.
The Master Servicer also shall be entitled pursuant to Section 3.11
to receive from the Custodial Account as additional servicing compensation
interest or other income earned on deposits therein, subject to Section 3.23, as
well as any assumption fees and reconveyance fees. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including payment of the premiums for any blanket policy
insuring against hazard losses pursuant to Section 3.13, servicing compensation
of the SubServicers to the extent not retained by it and the fees and expenses
of the Trustee), and shall not be entitled to reimbursement therefor except as
specifically provided in Section 3.11. The Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
SECTION 3.18. Maintenance of Certain Servicing Policies.
During the term of its service as Master Servicer, the Master
Servicer shall maintain in force (i) a policy or policies of insurance covering
errors and omissions in the performance of its obligations as servicer hereunder
and (ii) a fidelity bond in respect of its officers, employees or agents. Each
such policy or policies and bond shall, together, comply with the requirements
from time to time of FNMA or FHLMC for persons performing servicing for mortgage
loans purchased by such corporation. The Master Servicer shall prepare and
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such errors and omissions policy or policies or fidelity bond in a timely
fashion in accordance with the terms of such policy or bond, and upon the filing
of any claim on any policy or bond described in this Section, the Master
Servicer shall promptly notify the Trustee of any such claims and the Trustee
shall notify the Rating Agency of such claim.
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SECTION 3.19. Annual Statement as to Compliance.
The Master Servicer will deliver to the Trustee and the Depositor on
or before April 30 of each year, beginning with April 30, 1997, an Officers'
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Master Servicer during the preceding fiscal year and of its
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Master Servicer has complied in all material respects with the minimum servicing
standards set forth in the Uniform Single Attestation Program For Mortgage
Bankers and has fulfilled all of its obligation under this Agreement throughout
such year, or, if there has been noncompliance with such servicing standards or
a default in the fulfillment of any such obligation such officer's Certificate
shall describe such noncompliance or specify, each such default known to such
officers and the nature and status thereof.
SECTION 3.20. Annual Independent Public Accountants' Servicing
Statement.
On or before April 30 of each year, beginning with April 30, 1997,
the Master Servicer at its expense shall furnish to the Depositor, the Trustee
and the Seller (i) an opinion by a firm of independent certified public
accountants on the financial position of the Master Servicer at the end of its
fiscal year and the results of operations and changes in financial position of
the Master Servicer for such year then ended on the basis of an examination
conducted in accordance with generally accepted auditing standards, and (ii) a
report from such independent certified public accountants to the effect that
based on an examination of certain specified documents and records relating to
the servicing of the Master Servicer's mortgage loan portfolio conducted
substantially in accordance with standards established by the American Institute
of Certified Public Accountants, such firm is of the opinion that the assertion
made pursuant to Section 3.19 regarding compliance with the minimum servicing
standards set forth in the Uniform Single Attestation Program for Mortgage
Bankers during the preceding fiscal year is fairly stated in all material
respects, subject to such exceptions and other qualifications that, in the
opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Sub-Servicers, upon comparable reports for
examinations conducted substantially in accordance with such accounting
standards (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer. Copies of such report
shall be provided by the Trustee to any Certificateholder upon request at the
Master Servicer's expense, provided such statement is delivered by the Master
Servicer to the Trustee.
SECTION 3.21. Access to Certain Documentation.
(a) The Master Servicer shall provide to the OTS, the FDIC and other
federal banking regulatory agencies, and their respective examiners, access to
the documentation regarding the Mortgage Loans required by applicable
regulations of the OTS, the FDIC and such other agencies. Such access shall be
afforded without charge, but only upon reasonable and
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prior written request and during normal business hours at the offices of the
Master Servicer designated by it. Nothing in this Section shall derogate from
the obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the Master
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this section.
(b) The Master Servicer shall afford the Depositor and the Trustee,
upon reasonable notice, during normal business hours access to all records
maintained by the Master Servicer in respect of its rights and obligations
hereunder and access to officers of the Master Servicer responsible for such
obligations. Upon request, the Master Servicer shall furnish the Depositor and
the Trustee with its most recent financial statements and such other information
as the Master Servicer possesses regarding its business, affairs, property and
condition, financial or otherwise to the extent related to the servicing of the
Mortgage Loans. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer hereunder or exercise the rights of the Master Servicer hereunder;
provided that the Master Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
SECTION 3.22. Title, Conservation and Disposition of REO Property.
This Section shall apply only to REO Properties acquired for the
account of the Trust Fund, and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trust Fund pursuant to
any provision hereof. In the event that title to any such REO Property is
acquired, the deed or certificate of sale shall be issued to the Trustee, or to
its nominee, on behalf of the Certificateholders. The Master Servicer, on behalf
of the Trust Fund, shall either sell any REO Property within two years after the
Trust Fund acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code or, at the expense of the Trust Fund, request, more than
60 days before the day on which the two-year grace period would otherwise
expire, an extension of the two-year grace period, unless the Master Servicer
has delivered to the Trustee an Opinion of Counsel (which Opinion of Counsel
shall not be an expense of the Trustee or the Trust Fund), addressed to the
Trustee and the Master Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to two years after its acquisition will not
result in the imposition on the Trust Fund of taxes on "prohibited transactions"
thereof, as defined in Section 860F of the Code, or cause the Trust Fund to fail
to qualify as a REMIC under the REMIC Provisions at any time that any
Certificates are outstanding. The Master Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) or result in the receipt by the Trust Fund of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2)(B) of the
Code or any "net income from foreclosure property" which is subject to taxation
under the
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REMIC Provisions. Pursuant to its efforts to sell such REO Property,
the Master Servicer shall either itself or through an agent selected by the
Master Servicer protect and conserve such REO Property in the same manner and to
such extent as is customary in the locality where such REO Property is located
and may, incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Master Servicer
deems to be in the best interest of the Certificateholders for the period prior
to the sale of such REO Property.
Any REO Disposition shall be for cash only (unless changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
The Master Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets. The Master Servicer shall deposit, or
cause to be deposited, on a daily basis in the Custodial Account all revenues
received with respect to the REO Properties, net of any directly related
expenses incurred and funds withheld therefrom that are necessary for the proper
operation, management and maintenance of the REO Property.
If as of the date of acquisition of title to any REO Property there
remain outstanding unreimbursed Servicing Advances with respect to such REO
Property or any outstanding Advances allocated thereto the Master Servicer, upon
an REO Disposition, shall be entitled to reimbursement for any related
unreimbursed Servicing Advances and any unreimbursed related Advances as well as
any unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.15.
The REO Disposition shall be carried out by the Master Servicer at
such price and upon such terms and conditions as the Master Servicer shall
determine.
The Master Servicer shall deposit the proceeds from the REO
Disposition, net of any payment to the Master Servicer as provided above, in the
Custodial Account upon receipt thereof for distribution in accordance with
Section 4.01; provided that any such net proceeds which are in excess of the
applicable Stated Principal Balance plus all unpaid REO Imputed Interest thereon
through the last day of the month in which the REO Disposition occurred ("Excess
Proceeds") shall be deposited into the Excess Proceeds Account in accordance
with the provisions of Section 3.25(a).
Notwithstanding the foregoing provisions of this Section 3.22, with
respect to any Mortgage Loan as to which the Master Servicer has received notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the Mortgaged Property, the Master Servicer shall promptly notify the Seller
and request the Depositor to provide directions and instructions with respect to
such Mortgage Loan and shall act in accordance with any such directions and
instructions provided by the Depositor. Furthermore, notwithstanding the
preceding sentence of this Section 3.22, with respect to any Mortgage Loan
described by such sentence, the Master Servicer shall not, on behalf of the
Trustee, either (i) obtain title to the related Mortgaged Property as a result
of or in lieu of foreclosure or otherwise, or (ii) otherwise
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acquire possession of, the related Mortgaged Property, unless (i) the Depositor
and the Trustee jointly direct the Master Servicer to take such action and (ii)
either (A) the Master Servicer has, at least 30 days prior to taking such
action, obtained and delivered to the Depositor an environmental audit report
prepared by a Person who regularly conducts environmental audits using customary
industry standards or (B) the Depositor has directed the Master Servicer not to
obtain an environmental audit report. If the Depositor has not provided
directions and instructions to the Master Servicer in connection with any such
Mortgage Loan within 30 days of a request by the Master Servicer for such
directions and instructions, then the Master Servicer shall take such action as
it deems to be in the best economic interest of the Trust Fund (other than
proceeding against the Mortgaged Property) and is hereby authorized at such time
as it deems appropriate to release such Mortgaged Property from the lien of the
related Mortgage. The Master Servicer hereby agrees that it shall not require
the Seller to repurchase any Mortgage Loan under the provisions of any
applicable agreement, if the Depositor has directed the Master Servicer to take
any action as described in the second preceding sentence in connection with the
related Mortgaged Property and if the Master Servicer at the time of such
direction had notice of the presence of such toxic or hazardous substance,
unless the Seller was notified of such toxic or hazardous substance and
consented to the action so directed by the Master Servicer.
The cost of the environmental audit report contemplated by this
Section 3.22 shall be advanced by the Master Servicer as an expense of the Trust
Fund, and the Master Servicer shall be reimbursed therefor from the Custodial
Account as provided in Section 3.11, any such right of reimbursement being prior
to the rights of the Certificateholders to receive any amount in the Custodial
Account.
If the Master Servicer determines, as described above, that it is in
the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property in compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Master Servicer as
an expense of the Trust Fund, and the Master Servicer shall be entitled to be
reimbursed therefor from the Custodial Account as provided in Section 3.11, any
such right of reimbursement being prior to the rights of the Certificateholders
to receive any amount in the Custodial Account.
The Master Servicer shall have the option to purchase from the Trust
Fund any Mortgage Loan that is 90 days or more delinquent (90 days or more
delinquent shall mean delinquent as to 4 or more Monthly Payments) and that the
Master Servicer determines in good faith will otherwise become subject to
foreclosure proceedings (such determination to be evidenced by an Officer's
Certificate of the Master Servicer delivered to the Trustee prior to purchase)
for an amount equal to the Purchase Price. The Purchase Price for any Mortgage
Loan purchased pursuant to this Section 3.22 shall be deposited in the Custodial
Account, and upon receipt of written certification from the Master Servicer of
such deposit, the Trustee shall
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release or cause to be released to the Master Servicer the related Mortgage File
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as the Master Servicer shall furnish and as shall be
necessary to vest in the Master Servicer title to any Mortgage Loan released
pursuant to this Section 3.22.
SECTION 3.23. Additional Obligations of the Master Servicer.
On each Certificate Account Deposit Date, the Master Servicer shall
deliver to the Trustee for deposit in the Certificate Account from its own funds
and without any right of reimbursement therefor, a total amount equal to the
aggregate of the Prepayment Interest Shortfalls for the related Distribution
Date; provided that the Master Servicer's obligations under this subsection on
any Distribution Date shall not be more than the total amount of its servicing
compensation payable with respect to the selected Distribution Date.
SECTION 3.24. Additional Obligations of the Depositor.
The Depositor agrees that on or prior to the tenth day after the
Closing Date, the Depositor shall provide the Trustee with a written
notification, substantially in the form of Exhibit K attached hereto, relating
to each Class of Certificates, setting forth (i) in the case of each Class of
such Certificates, (a) if less than 10% of the aggregate Certificate Principal
Balance of such Class of Certificates has been sold as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit K hereto, or, (b) if 10% or
more of such Class of Certificates has been sold as of such date but no single
price is paid for at least 10% of the aggregate Certificate Principal Balance of
such Class of Certificates, then the weighted average price at which the
Certificates of such Class were sold and the aggregate percentage of
Certificates of such Class sold, (c) the first single price at which at least
10% of the aggregate Certificate Principal Balance of such class of Certificates
was sold, or (d) if any Certificates of each Class of Certificates are retained
by the Depositor or an affiliate corporation, or are delivered to the Seller,
the fair market value of such Certificates as of the Closing Date, (ii) the
prepayment assumption used in pricing the Certificates, and (iii) such other
information as to matters of fact as the Trustee may reasonably request to
enable it to comply with its reporting requirements with respect to each Class
of such Certificates to the extent such information can in the good faith
judgment of the Depositor be determined by it.
SECTION 3.25. Excess Proceeds Account.
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Proceeds Account") in which the Master Servicer
shall, on behalf of the Trust Fund, deposit or cause to be deposited on a daily
basis, or as and when received from the Sub-Servicers, the Excess Proceeds, if
any, with respect to each Mortgage Loan as to which an REO Disposition occurs.
The Excess Proceeds Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series, from funds of investors, from funds or other
assets of the Trustee, and from the other accounts of the Trustee.
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(b) On or before 2:00 P.M. Los Angeles time on each Certificate
Account Deposit Date, the Trustee shall withdraw or cause to be withdrawn from
the Excess Proceeds Account, to the extent of the amount on deposit therein at
such time, and deposit or cause to be deposited in the Certificate Account, by
wire transfer of immediately available funds, an amount equal to the lesser of
(i) the amount, if any, on deposit in the Excess Proceeds Account as of the
close of business on the related Determination Date and (ii)(A) the sum of the
aggregate amount of all Realized Losses allocated among the Certificates on any
previous Distribution Date pursuant to Section 4.04 and the aggregate amount of
all Realized Losses to be allocated among the Certificates on the related
Distribution Date pursuant to Section 4.04 minus (B) the aggregate amount of all
distributions allocated among the Certificateholders on any previous
Distribution Date in accordance with Section 4.01(b)(xii), (xiii), (xiv), or
(xv) or in accordance with Section 4.01(f).
(c) If the amount on deposit in the Excess Proceeds Account as of
the close of business on any Determination Date would exceed the product of
1.00% and the aggregate Certificate Principal Balance of all of the Certificates
outstanding immediately after the close of business on the related Distribution
Date, the Trustee shall, on or before 2:00 P.M. Los Angeles time on the related
Certificate Account Deposit Date, withdraw or cause to be withdrawn from the
Excess Proceeds Account, to the extent of the amount on deposit therein at such
time, and deposit or cause to be deposited in the Certificate Account, by wire
transfer of immediately available funds, the excess of such amount over such
product.
(d) The Excess Proceeds Account shall be an Eligible Account in
accordance with the definition of "Excess Proceeds Account" in Section 1.01. The
Trustee shall, upon written request from the Master Servicer, invest or cause
the institution maintaining the Excess Proceeds Account to invest the funds in
the Excess Proceeds Account in one or more Permitted Instruments designated in
the name of the Trustee for the benefit of the Certificateholders, each of which
Permitted Instruments shall be held to maturity, unless payable on demand, and
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the Certificate Account Deposit Date next following the
date of such investment (except that if such Permitted Instrument is an
obligation of the institution with which the Excess Proceeds Account is
maintained, then such Permitted Instrument shall mature not later than such
Certificate Account Deposit Date). All income and gain realized from any such
investment as well as any interest earned on deposits in the Excess Proceeds
Account shall be for the benefit of the Certificateholders and shall be held in
the Excess Proceeds Account (or in Permitted Instruments in which the funds in
the Excess Proceeds Account are invested) until transferred from the Excess
Proceeds Account to the Certificate Account in accordance with Section 3.25(b)
or (c). The amount of any loss incurred in respect of any such investment shall
be borne by the Certificateholders without any right of reimbursement.
(e) As part of each Determination Date Report delivered to the
Trustee in accordance with Section 4.03(a), the Master Servicer shall provide
information with respect to the amount, if any, of Excess Proceeds deposited in
the Excess Proceeds Account in
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respect of each Mortgage Loan as to which an REO Disposition occurred during the
related Prepayment Period.
(f) The Trustee shall promptly provide notice to the Depositor and
the Master Servicer of the initial location of the Excess Proceeds Account and
shall promptly provide notice to the Depositor and the Master Servicer of the
location of the Excess Proceeds Account after any change in location of the
Excess Proceeds Account.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Certificate Account; Distributions.
(a) The Trustee shall establish and maintain a Certificate Account,
in which the Master Servicer shall cause to be deposited on behalf of the
Trustee on or before 2:00 P.M. Los Angeles time on each Certificate Account
Deposit Date by wire transfer of immediately available funds an amount equal to
the sum of (i) any Advance for the immediately succeeding Distribution Date,
(ii) any amount required to be deposited in the Certificate Account pursuant to
Sections 3.13, 3.22 or 3.23 and (iii) all other amounts constituting the
Available Distribution Amount for the immediately succeeding Distribution Date.
(b) On each Distribution Date the Trustee shall distribute to the
Master Servicer in the case of a distribution pursuant to Section 4.01(b)(v) and
to each Certificateholder of record on the next preceding Record Date (other
than as provided in Section 9.01 respecting the final distribution) either in
immediately available funds (by wire transfer or otherwise) to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Trustee at least 5
Business Days prior to the related Record Date and such Certificateholder is the
registered owner of Certificates the aggregate Initial Certificate Principal
Balance of which is not less than $2,500,000 (or, with respect to the Class SA
Certificates and the Class SB Certificates, is the registered owner of an
aggregate initial Notional Amount of not less than $10,000,000 of the Class SA
Certificates or the Class SB Certificates), or otherwise by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register, such Certificateholder's share (based on the aggregate of the
Percentage Interests represented by Certificates of the applicable Class held by
such Holder) of the following amounts, in the following order of priority, in
each case to the extent of the Available Distribution Amount:
(i) to the Class SA Certificateholders and the Class A-1
Certificateholders, on a pro rata basis, based on Accrued Certificate
Interest payable thereon, Accrued Certificate Interest on such Class of
Certificates for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date;
(ii) to the Class A-1 Certificateholders, the sum of the
following amounts applied to reduce the Certificate Principal Balance
thereof:
(A) the Class A-1 Percentage for such Distribution Date times
the Scheduled Principal and Net Recoveries for such Distribution Date;
(B) an amount equal to (1) the Class A-1 Percentage for such
Distribution Date divided by the Senior Percentage for such Distribution
Date times (2)
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the Senior Prepayment Percentage for such Distribution Date times the
aggregate of all Principal Prepayments received in the related Prepayment
Period;
(C) with respect to each Mortgage Loan for which a Cash
Liquidation or an REO Disposition occurred during the related Prepayment
Period and did not result in any Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses, an amount
equal to the lesser of (i) the then applicable Class A-1 Percentage of the
Stated Principal Balance of such Mortgage Loan and (ii)(a) the Class A-1
Percentage for such Distribution Date divided by the Senior Percentage for
such Distribution Date times (b) the Senior Prepayment Percentage for such
Distribution Date times the related collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to
the extent applied by the Master Servicer as recoveries of principal of
the related Mortgage Loan pursuant to Section 3.15; and
(D) any amounts described in this Section 4.01(b)(ii), as
determined for any previous Distribution Date, which remain unpaid after
application of amounts previously distributed pursuant to this clause (D)
to the extent that any such amounts are not attributable to Realized
Losses that were allocated to the Class A-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates or the
Class R Certificates;
(iii) to the Class A-2 Certificateholders, Accrued Certificate
Interest on such Certificates for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date;
(iv) to the Class A-2 Certificateholders, the sum of the
following amounts applied to reduce the Certificate Principal Balance
thereof:
(A) the Class A-2 Percentage for such Distribution Date times
the Scheduled Principal and Net Recoveries for such Distribution
Date;
(B) an amount equal to (1) the Class A-2 Percentage for such
Distribution Date divided by the Senior Percentage for such
Distribution Date times (2) the Senior Prepayment Percentage for
such Distribution Date times the aggregate of all Principal
Prepayments received in the related Prepayment Period;
(C) with respect to each Mortgage Loan for which a Cash
Liquidation or an REO Disposition occurred during the related
Prepayment Period and did not result in any Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses, an amount equal to the lesser of (i) the then
applicable Class A-2 Percentage of the Stated Principal Balance of
such Mortgage Loan and (ii)(a) the Class A-2 Percentage for such
Distribution Date divided by the Senior Percentage for such
Distribution Date times (b) the Senior Prepayment Percentage for
such Distribution Date times the related collections
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(including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) to the extent applied by the Master
Servicer as recoveries of principal of the related Mortgage Loan
pursuant to Section 3.15; and
(D) any amounts described in this Section 4.01(b)(iv), as
determined for any previous Distribution Date, which remain unpaid
after application of amounts previously distributed pursuant to this
clause (D) to the extent that any such amounts are not attributable
to Realized Losses that were allocated to the Class B-1
Certificates, the Class B-2 Certificates, the Class SB Certificates
and the Class R Certificates;
(v) to the Master Servicer or a Sub-Servicer, by remitting for
deposit to the Custodial Account, to the extent of and in reimbursement
for any Advances previously made with respect to any Mortgage Loan or REO
Property which remain unreimbursed in whole or in part following the Cash
Liquidation or REO Disposition of such Mortgage Loan or REO Property,
minus any such Advances that were made with respect to delinquencies that
ultimately constituted Excess Special Hazard Losses, Excess Fraud Losses,
excess Bankruptcy Losses or Extraordinary Losses;
(vi) to the Class B-1 Certificateholders, Accrued Certificate
Interest on the Class B-1 Certificates for such Distribution Date, plus
any Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date;
(vii) to the Class B-1 Certificateholders, the sum of the
following amount applied to reduce the Certificate Principal Balance
thereof:
(A) the Class B-1 Percentage for such Distribution Date times
the Scheduled Principal and Net Recoveries for such Distribution
Date;
(B) an amount equal to the (1) the Class B-1 Percentage for
such Distribution Date divided by the Class B Percentage for such
Distribution Date times (2) the Class B Prepayment Percentage times
the aggregate of all Principal Prepayments received during the
related Prepayment Period;
(C) such Class's pro rata share, based on the Certificate
Principal Balance of the Class B-1 Certificates, the Class B-2
Certificates and the Class R Certificates, of all amounts received
in connection with a Cash Liquidation or an REO Disposition (x) that
occurred during the preceding calendar month and (y) that did not
result in any Excess Special Hazard Losses, Excess Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses, to the extent
applied as recoveries of principal and to the extent not otherwise
payable to the Senior Certificates; and
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(D) any amounts described in this Section 4.01(b)(vii), as
determined for any previous Distribution Date, which remain unpaid
after application of amounts previously distributed pursuant to this
clause (D) to the extent that such amounts are not attributable to
Realized Losses which have been allocated to the Class B-2
Certificates, the Class SB Certificates and the Class R
Certificates.
(viii) to the Class B-2 Certificateholders, Accrued Certificate
Interest on the Class B-2 Certificates for such Distribution Date, plus
any Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date;
(ix) to the Class B-2 Certificateholders, the sum of the following
amount applied to reduce the Certificate Principal Balance thereof:
(A) the Class B-2 Percentage for such Distribution Date times
the Scheduled Principal and Net Recoveries for such Distribution
Date;
(B) an amount equal to (1) the Class B-2 Percentage for such
Distribution Date divided by the Class B Percentage for such
Distribution Date times (2) the Class B Prepayment Percentage times
the aggregate of all Principal Prepayments received during the
related Prepayment Period;
(C) such Class's pro rata share, based on the Certificate
Principal Balance of the Class B-1 Certificates, the Class B-2
Certificates and Class R Certificates, of all amounts received in
connection with a Cash Liquidation or an REO Disposition (x) that
occurred during the preceding calendar month and (y) that did not
result in any Excess Special Hazard Losses, Excess Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses, to the extent
applied as recoveries of principal and to the extent not otherwise
payable to the Senior Certificates; and
(D) any amounts described in this Section 4.01(b)(ix), as
determined for any previous Distribution Date, which remain unpaid
after application of amounts previously distributed pursuant to this
clause (D) to the extent that such amounts are not attributable to
Realized Losses which have been allocated to the Class SB
Certificates and the Class R Certificates.
(x) to the Class A-1 Certificateholders, an amount, applied to
reduce the Certificate Principal Balance thereof, equal to the Class A-1
Percentage for such Distribution Date divided by the Senior Percentage for
such Distribution Date times the Senior Accrual Diversion Amount for such
Distribution Date;
(xi) to the Class A-2 Certificateholders, an amount, applied to
reduce the Certificate Principal Balance thereof, equal to the Class A-2
Percentage for such
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Distribution Date divided by the Senior Percentage for such Distribution
Date times the Senior Accrual Diversion Amount for such Distribution Date;
(xii) to the holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class B-1 Certificates and the Class B-2 Certificates,
in that order, the portion, if any, of the Available Distribution Amount
remaining, but in no event more than the principal portion of Realized
Losses previously allocated thereto and not previously reimbursed;
(xiii) to the Class B-1 Certificateholders, an amount equal to the
Class B-1 Percentage for such Distribution Date divided by the sum of the
Class B Percentage for such Distribution Date multiplied by the amount
remaining following the distribution pursuant to Clause (xii) above, up to
and in reduction of the Certificate Principal Balance thereof;
(xiv) to the Class B-2 Certificateholders, an amount equal to the
Class B-2 Percentage for such Distribution Date divided by the sum of the
Class B Percentage for such Distribution Date multiplied by the amount
remaining following the Distribution pursuant to Clause (xii) above, up to
and in reduction of the Certificate Principal Balance thereof;
(xv) on and after the Class B Certificate Termination Date, to
the Class SB Certificateholders, Accrued Certificate Interest thereon for
such Distribution Date, to the extent such Accrued Certificate Interest is
not added to the Outstanding Class SB Unpaid Interest Amount, on such
Distribution Date and then, up to an amount equal to the Outstanding Class
SB Unpaid Interest Amount for such Distribution Date, in reduction
thereof;
(xvi) to the Class R Certificateholders, Accrued Certificate
Interest thereon for such Distribution Date to the extent not added to the
Certificate Principal Balance thereof on such Distribution Date in
accordance with Section 4.01(d);
(xvii) to the Class R Certificates the portion, if any, of the
Available Distribution Amount remaining after the foregoing distributions,
applied to reduce the Certificate Principal Balance of the Class R
Certificates, but in no event more than the outstanding Certificate
Principal Balance of the Class R Certificates; and
(xviii) to the Class R Certificateholders, the balance, if any, of
the Available Distribution Amount.
(c) The Trustee shall, upon written request from the Master
Servicer, invest or cause the institution maintaining the Certificate Account to
invest the funds in the Certificate Account in Permitted Instruments designated
in the name of the Trustee for the benefit of the Certificateholders, which
shall mature not later than the Business Day next preceding the
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Distribution Date next following the date of such investment (except that (i)
any investment in obligations of the institution with which the Certificate
Account is maintained may mature on such Distribution Date and (ii) any other
investment may mature on such Distribution Date if the Trustee shall agree to
advance funds on such Distribution Date to the Certificate Account in the amount
payable on such investment on such Distribution Date, pending receipt thereof to
the extent necessary to make distributions on the Certificates) and shall not be
sold or disposed of prior to maturity. All income and gain realized from any
such investment shall be for the benefit of the Master Servicer and shall be
subject to its withdrawal or order from time to time. The amount of any losses
incurred in respect of any such investments shall be deposited in the
Certificate Account by the Master Servicer out of its own funds immediately as
realized without right of reimbursement.
(d) On each Distribution Date, Accrued Certificate Interest on the
Class SB Certificates that would otherwise be distributed on such Certificates
on such Distribution Date shall instead be added to the Outstanding Class SB
Unpaid Interest Amount; which amount will have the effect of increasing the
Certificate Principal Balance of the Class R Certificates, to the extent
provided by operation of the definition of Certificate Principal Balance (except
to the extent of any concurrent reduction thereof resulting from the allocation
of any Realized Loss thereto). On and after the Class B Certificate Termination
Date, the Accrued Certificate Interest on the Class SB Certificates shall be
payable to the Class SB Certificateholders to the extent that (i) any portion of
such Accrued Certificate Interest is not required to render such date the Class
B Certificate Termination Date in accordance with the definition thereof (ii)
any portion of such amount is not otherwise payable to the Class A-1
Certificates or Class A-2 Certificates as a Senior Accrual Diversion Amount or
(iii) any portion of such amount is not otherwise payable to the Class A-1
Certificates, Class A-2 Certificates or Class B Certificates as reimbursement
for Realized Losses previously allocated thereto pursuant to Sections
4.01(b)(xiv), (xv), (xvi), (xvii) or (xvii).
On each Distribution Date, prior to the Class B Certificate
Termination Date, unpaid Accrued Certificate Interest on the Class R
Certificates for such Distribution Date that would otherwise be distributed on
such Certificates on such Distribution Date shall instead be added to the
Certificate Principal Balance thereof, to the extent provided by operation of
the definition of Certificate Principal Balance. On and after the Class B
Certificate Termination Date, and after the outstanding Class SB Unpaid Interest
Amount has been reduced to zero Accrued Certificate Interest on the Class R
Certificates for such Distribution Date shall be payable to the Class R
Certificateholders. On and after the Class B Certificate Termination Date,
unpaid Accrued Certificate Interest, if any, on the Class R Certificates will
not be added to the Certificate Principal Balance thereof except to the extent
of any portion of such Accrued Certificate Interest required to retire the Class
B-1 Certificates and the Class B Certificate Termination Date.
(e) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the
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next Distribution Date, the Trustee shall, no later than five days after the
Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the related previous calendar month.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust and credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(e) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within six months after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee shall
take reasonable steps as directed by the Depositor, or appoint an agent to take
reasonable steps, to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within nine months
after the second notice any such Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject hereto. No interest shall
accrue or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(e).
(f) On each Distribution Date, the Trustee shall distribute to each
Certificateholder of record on the next preceding Record Date (other than as
provided in Section 9.01 respecting the final distribution), in the manner set
forth in Section 4.01(b), such Certificateholder's share (based on the aggregate
of the Percentage Interests represented by the Certificates of the applicable
Class held by such Certificateholder) of the amount transferred from the Excess
Proceeds Account to the Certificate Account on the related Certificate Account
Deposit Date in accordance with Section 3.25(b), in the following order of
priority: first, to the Holders of the Class SA Certificates and the Class A-1
Certificates on a pro rata basis, to the extent of and in proportion to the
interest portion of the aggregate amount of all Realized Losses allocated to the
Certificates of such Classes on such Distribution Date or any previous
Distribution Date in accordance with Section 4.04 and not subsequently recovered
through any distribution in accordance with this Section 4.01(f), and then
second, to the Holders of the Class A-1 Certificates, third, to the Holders of
the Class A-2 Certificates, fourth, to the Holders of the Class B-1
Certificates, and fifth, to the Holders of the Class B-2 Certificates, in each
case to the extent of the aggregate amount of all Realized Losses allocated to
the Certificates of such
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Class on such Distribution Date or any previous Distribution Date in accordance
with Section 4.04 and not subsequently recovered through any distribution in
accordance with Section 4.01(b)(xii), (xiii), (xiv), (xv) or (xvii) or in
accordance with this Section 4.01(f), and sixth, to the Holders of the Class SB
Certificates, and then seventh, to the Holders of the Class R Certificates. The
distribution of any amount in accordance with this Section 4.01(f) shall not
have the effect of reducing the Certificate Principal Balance of any Certificate
to which such distribution is allocated.
(g) On each Distribution Date, the Trustee shall distribute to each
Class R Certificateholder of record on the next preceding Record Date (other
than as provided in Section 9.01 respecting the final distribution), in the
manner set forth in Section 4.01(b), such Class R Certificateholder's share
(based on the aggregate of the Percentage Interests represented by the Class R
Certificates held by such Class R Certificateholder) of the amount transferred
from the Excess Proceeds Account to the Certificate Account on the related
Certificate Account Deposit Date in accordance with Section 3.25(c). The
distribution of any amount in accordance with this Section 4.01(g) shall not
have the effect of reducing the Certificate Principal Balance of any Class R
Certificate to which such distribution is allocated.
(h) On each Distribution Date, the aggregate amount of Deferred
Interest added to the Stated Principal Balance of the Mortgage Loans on the Due
Date occurring in the month in which such Distribution Date occurs will be
allocated to the Class R Certificates. Deferred Interest allocated to any Class
of Regular Certificates on any Distribution Date will be added to the
Certificate Principal Balance thereof on such Distribution Date and will
thereafter bear interest at the then applicable Pass-Through Rate.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Certificate and to the Depositor and the
Master Servicer a statement as to such distribution setting forth:
(i) (a) the amount of such distribution to the
Certificateholders of each Class applied to reduce the Certificate
Principal Balance thereof, (b) the aggregate amount included therein
representing Principal Prepayments, and (c) the Senior Prepayment
Percentage and the Class B Prepayment Percentage applicable to such
distribution;
(ii) the amount of such distribution to the Certificateholders of
each Class allocable to interest, and the Class SB Accrual Amount and
Class R Accrual Amount for such Distribution Date;
(iii) the amount of related servicing compensation received by or
on behalf of the Master Servicer and any Sub-Servicers with respect to
such Distribution Date and such other customary information as the Master
Servicer deems necessary or
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desirable and supplies to the Trustee, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
(iv) the aggregate amount of Advances included in such
distribution on such Distribution Date;
(v) the number and aggregate Stated Principal Balance of the
Mortgage Loans at the close of business on such Distribution Date;
(vi) the Certificate Principal Balance of a Single Certificate of
such Class, the aggregate Certificate Principal Balance of the Class A-1
Certificates, the Class A-2 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates and the Class R Certificates, respectively, and the
Senior Percentage, Class A-1 Percentage, Class A-2 Percentage, Class B-1
Percentage, Class B-2 Percentage and Class R Percentage, after giving
effect to the amounts distributed on such Distribution Date separately
identifying any reduction thereof due to Realized Losses other than
pursuant to an actual distribution of principal;
(vii) the aggregate amount of Deferred Interest on such
Distribution Date;
(viii) the number and aggregate Stated Principal Balance of
Mortgage Loans (a) delinquent 31 to 60 days, (b) delinquent 61 to 90 days,
(c) delinquent 91 days or more;
(ix) the number and aggregate Stated Principal Balance of
Mortgage Loans as to which foreclosure proceedings have been commenced in
each case as of the related Determination Date and which are (a)
delinquent 31 to 60 days, (b) delinquent 61 to 90 days, (c) delinquent 91
days or more;
(x) the number and aggregate Stated Principal Balance of Mortgage
Loans as to which bankruptcy proceedings have been commenced in each case
as of the related Determination Date and which are (a) delinquent 31 to 60
days, (b) delinquent 61 to 90 days, (c) delinquent 91 days or more;
(xi) with respect to any Mortgage Loan that became a REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Distribution Date in such month and the date of acquisition thereof;
(xii) the book value of any REO Property as of the close of
business on the last Business Day of the calendar month preceding the
Distribution Date;
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(xiii) the Pass-Through Rate in effect for the preceding calendar
month with respect to the Class SA Certificates, the Class A-1
Certificates, the Class A-2 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates and the Class R Certificates;
(xiv) the aggregate Accrued Certificate Interest remaining
unpaid, if any, for each Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xv) the Special Hazard Amount, Fraud Loss Amount and Bankruptcy
Amount remaining available immediately after such Distribution Date;
(xvi) the aggregate Realized Losses incurred since the Cut-off
Date;
(xvii) the aggregate Realized Losses allocated on such
Distribution Date; and
(xviii) the amount of any Excess Proceeds distributed to each
class of Certificates.
In the case of information furnished pursuant to subclauses
(i)-(iii) above, the amounts shall also be expressed as a dollar amount per
Single Certificate.
On each Distribution Date the Trustee shall prepare and forward, to
each Holder of a Class R Certificate a statement setting forth the amounts
actually distributed with respect to the Class R Certificates on such
Distribution Date.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall prepare and forward, to each Person who at any time
during the calendar year was a Holder of a Senior Certificate, a Class B
Certificate, a Class SB Certificate or a Residual Certificate a statement
containing the information set forth in subclauses (i) - (iii) above, aggregated
for such calendar year or applicable portion thereof during which such person
was a Certificateholder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code and regulations
thereunder as from time to time are in force.
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SECTION 4.03. Remittance Reports; Advances by the Master Servicer.
(a) On the second Business Day following each Determination Date,
the Master Servicer shall deliver to the Trustee a report, prepared as of the
close of business on the Determination Date (the "Determination Date Report"),
in the form of an electromagnetic tape or disk. The Determination Date Report
and any written information supplemental thereto shall include such information
with respect to the Mortgage Loans that is reasonably available to the Master
Servicer and that is required by the Trustee for purposes of making the
calculations referred to in the following paragraph, as set forth in written
specifications or guidelines issued by the Trustee from time to time. Not later
than 10:00 A.M. Los Angeles time on the Business Day preceding each Certificate
Account Deposit Date, the Trustee shall furnish by telecopy to the Master
Servicer a statement (the information in such statement to be made available to
Certificateholders or the Depositor by the Master Servicer on request) setting
forth (i) the Available Distribution Amount and (ii) the amounts required to be
withdrawn from the Custodial Account and deposited into the Certificate Account
on the immediately succeeding Certificate Account Deposit Date pursuant to
clause (iii) of Section 4.01(a). The Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Master
Servicer. The determination by the Trustee of such amounts shall, in the absence
of obvious error, be presumptively deemed to be correct for all purposes
hereunder.
(b) Prior to the close of business on the Business Day preceding
each Certificate Account Deposit Date, the Trustee shall notify the Master
Servicer of the aggregate amount of Advances required to be made for the related
Distribution Date, which shall be in an aggregate amount equal to the aggregate
amount of Monthly Payments (net of the related Servicing Fees), less the amount
of any related Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended on the Outstanding Mortgage Loans as of the
related Due Date, which Monthly Payments were delinquent as of the close of
business as of the related Determination Date; provided that, no Advance shall
be made if it would be a Nonrecoverable Advance. On or before 2:00 P.M. Los
Angeles time on each Certificate Account Deposit Date, the Master Servicer shall
either (i) deposit in the Certificate Account from its own funds, or funds
received therefor from the Sub-Servicers, an amount equal to the Advances to be
made by the Master Servicer in respect of the related Distribution Date, (ii)
withdraw from amounts on deposit in the Custodial Account and deposit in the
Certificate Account all or a portion of the amounts held for future distribution
in discharge of any such Advance, or (iii) make advances in the form of any
combination of (i) and (ii) aggregating the amount of such Advances. Any portion
of the amounts held for future distribution so used shall be replaced by the
Master Servicer by deposit in the Certificate Account on or before 11:00 A.M.
Los Angeles time on any future Certificate Account Deposit Date to the extent
that funds attributable to the Mortgage Loans that are available in the
Custodial Account for deposit in the Certificate Account on such Certificate
Account Deposit Date shall be less than payments to Certificateholders required
to be made on the following Distribution Date. The amount of any reimbursement
pursuant to any clause under Section 4.01(b), in respect of outstanding Advances
on any Distribution Date shall be allocated to specific Monthly Payments due but
delinquent for previous Due Periods, which
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allocation shall be made, to the extent practicable, to Monthly Payments which
have been delinquent for the longest period of time. Such allocations shall be
conclusive for purposes of reimbursement to the Master Servicer from recoveries
on related Mortgage Loans pursuant to Section 3.11. The determination by the
Master Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced
by a certificate of a Servicing Officer delivered to the Seller and the Trustee.
The Trustee shall deposit all funds it receives pursuant to this Section 4.03
into the Certificate Account.
(c) In the event that the Master Servicer determines as of the
Business Day preceding any Certificate Account Deposit Date that it will be
unable to deposit in the Certificate Account an amount equal to the aggregate of
the Advances required to be made for the immediately succeeding Distribution
Date in the amount determined by the Trustee pursuant to paragraph (b) above, it
shall give notice to the Trustee of its inability to advance (such notice may be
given by telecopy), not later than 3:00 P.M., Los Angeles time, on such Business
Day, specifying the portion of such amount that it will be unable to deposit.
Not later than 5:30 P.M., Los Angeles time, on the Certificate Account Deposit
Date, unless by such time the Master Servicer shall have directly or indirectly
deposited in the Certificate Account the entire amount of the Advances required
to be made for the related Distribution Date, pursuant to Section 7.01, the
Trustee shall (a) terminate all of the rights and obligations of the Master
Servicer under this Agreement in accordance with Section 7.01 and (b) assume the
rights and obligations of the Master Servicer hereunder, including the
obligation to deposit in the Certificate Account an amount equal to the Advances
for the immediately succeeding Distribution Date; provided, however, that the
Trustee's obligation to advance such amounts shall be as of the related
Distribution Date.
SECTION 4.04. Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine
the total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Debt Service Reduction, Deficient Valuation or REO Disposition that
occurred during the related Prepayment Period. The amount of each Realized Loss
shall be evidenced by an Officers' Certificate by the Master Servicer. Realized
Losses shall be allocated among the various Classes of Certificates as
determined by the Trustee in accordance with the following provisions. All
Realized Losses other than Excess Special Hazard Losses, Extraordinary Losses,
Excess Bankruptcy Losses or Excess Fraud Losses, shall be allocated first to the
Class R Certificates, then to the Class SB Certificates (to the extent of the
interest portions of such Realized Losses), then to the Class B-2 Certificates,
then to the Class B-1 Certificates, then to the Class A-2 Certificates, in each
case (other than for the Class SB Certificates) until the Certificate Principal
Balance thereof has been reduced to zero, and, thereafter, the principal portion
of any Realized Losses on the Mortgage Loans will be allocated to the Class A-1
Certificates and the interest portion thereof to the Class SA Certificates and
Class A-1 Certificates on a pro rata basis. Any Excess Special Hazard Losses,
Excess Bankruptcy Losses, Excess Fraud Losses and Extraordinary Losses on the
Mortgage Loans will be allocated to the Class SA Certificates, the Class A-1
Certificates, the
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Class A-2 Certificates, the Class B Certificates, the Class SB Certificates and
the Class R Certificates on a pro rata basis, as and to the extent described
below. Notwithstanding the foregoing, any such Realized Losses on the Mortgage
loan will not be allocated to any of the Certificates on any Distribution Date
to the extent that such Realized losses together with any other Realized Losses
are less than the sum of (i) the portion of the Available Distribution Amount on
such Distribution Date remaining after the distribution made pursuant to section
4.01 (b)(ix) and (ii) the Certificate Principal Balance of the Class R
Certificates immediately prior to such Distribution Date.
As used herein, an allocation of a Realized Loss on a "pro rata
basis" among two or more specified Classes of Certificates means an allocation
on a pro rata basis, without priority among the various Classes so specified, to
each such Class of Certificates on the basis of the then outstanding Certificate
Principal Balances thereof in the case of the principal portion of a Realized
Loss or based on the Accrued Certificate Interest thereon in the case of an
interest portion of a Realized Loss. Any allocation of the principal portion of
Realized Losses (other than Debt Service Reductions) to a Certificate (except as
follows) shall be made by reducing the Certificate Principal Balance thereof by
the amount so allocated, which allocation shall be deemed to have occurred at
the close of business on such Distribution Date. Any allocation of the principal
portion of Realized Losses (other than Debt Service Reductions) to the most
subordinate Class of Certificates outstanding, shall be made by operation of the
definition of "Certificate Principal Balance," and by operation of the
provisions of Section 4.01(b). Allocations of the interest portions of Realized
Losses shall be made by operation of the definition of "Accrued Certificate
Interest" and by operation of the provisions of Section 4.01(b). Allocations of
the principal portion of Debt Service Reductions shall be made by operation of
the provisions of Section 4.01(b). All Realized Losses and all other losses
allocated to a Class of Certificates hereunder will be allocated among the
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. For purposes of the foregoing, the Trustee shall maintain records
relating to the Bankruptcy Amount, Fraud Loss Amount and Special Hazard Amount
as in effect from time to time.
SECTION 4.05. Information Reports to be Filed by the Master
Servicer.
The Master Servicer or Sub-Servicers shall file information returns
with respect to the receipt of mortgage interest received in a trade or
business, reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively, and
promptly deliver upon such filing to the Trustee an Officer's Certificate
stating that such reports have been filed. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by such Sections
6050H, 6050J and 6050P of the Code.
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SECTION 4.06. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount on the Mortgage Loans,
and payments of interest or discount on amounts invested by the Trustee as agent
for Certificateholders pursuant to an election made under Section 4.01 hereof,
that the Trustee reasonably believes are applicable under the Code. The consent
of Certificateholders shall not be required for such withholding. In the event
the Trustee withholds any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report to
such Certificateholders pursuant to Section 4.02 hereof, indicate such amount
withheld.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A, B-1, B-2 and B-3. The Certificates will be
issuable in registered form only; provided, however, that in accordance with
Section 5.01 beneficial ownership interests in the Book-Entry Certificates shall
initially be held and transferred through book-entry facilities of the
Depository. Except as provided in Section 5.01(b), the Class SA Certificates,
the Class A-1 Certificates, the Class A-2 Certificates and the Class B-1
Certificates shall be issuable in denominations evidencing initial Certificate
Principal Balances or Notional Amounts, as applicable, of not less than $1.00
and integral multiples of $1.00 in excess thereof. The Class B-2 Certificates
shall be issuable in denominations evidencing initial Certificate Principal
Balances of not less than $250,000 and integral multiples of $1,000 in excess
thereof. The Class SB Certificates will be issuable in denominations evidencing
initial Notional Amounts of not less than $250,000 and integral multiples of
$1,000 in excess thereof, except that one Certificate of such Class may be
issued in an amount evidencing the sum of the authorized minimum denomination
thereof and the remainder of the aggregate initial Notional Amount of such
Class. The Residual Certificates will be issuable in denominations of any
Percentage Interest representing not less than 5.00% and multiples of 0.01% in
excess thereof; provided, however, that one Class R Certificate may be issued to
the "tax matters person" pursuant to Article X, in a denomination representing a
Percentage Interest of not less than 0.01%.
Upon original issue, the Certificates shall, upon the written
request of the Depositor executed by an officer of the Depositor, be executed
and delivered by the Trustee, authenticated by the Trustee and delivered to or
upon the order of the Depositor upon receipt by the Trustee of the documents
specified in Section 2.01. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee in its capacity as trustee
hereunder by a Responsible Officer. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Trustee shall bind the Trustee, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates issued on the Closing Date shall be dated the Closing Date and any
Certificates delivered thereafter shall be dated the date of their
authentication.
(b) The Class SA Certificates, the Class A-1 Certificates, the Class
A-2 Certificates and the Class B-1 Certificates shall initially be issued as one
or more Certificates
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registered in the name of the Depository or its nominee and, except as provided
below, registration of such Certificates may not be transferred by the Trustee
except to another Depository that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. The Certificate
Owners shall hold their respective Ownership Interests in and to each of the
Class SA Certificates, the Class A-1 Certificates, the Class A-2 Certificates
and the Class B-1 Certificates through the book-entry facilities of the
Depository and, except as provided below, shall not be entitled to Definitive
Certificates in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall transfer the Ownership Interests only in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the respective Classes of
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the respective Classes
of Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the respective Classes of Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of any Class of Book-Entry Certificates with respect to any particular
matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee shall utilize the next available
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall, at the Depositor's expense, issue the Definitive
Certificates. The Definitive Certificates shall be issuable in denominations
evidencing initial Certificate Principal Balances or Notional Amounts, as
applicable, of $1,000 and integral multiples of $1.00 in excess thereof, except
that any such Definitive Certificate that was represented by a Book-Entry
Certificate evidencing an initial Certificate Principal Balance or Notional
Amount of less than $1,000 immediately prior to the issuance of such Definitive
Certificate shall be issued in a denomination, the initial Certificate Principal
Balance or Notional Amount, as the case may be evidenced by such Book-Entry
Certificate. Neither the Depositor, the Master Servicer nor the
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Trustee shall be liable for any actions taken by the Depository or its nominee,
including, without limitation, any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Depository in
connection with the issuance of the Definitive Certificates pursuant to this
Section 5.01 shall be deemed to be imposed upon and performed by the Trustee,
and the Trustee and the Master Servicer shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall maintain a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided.
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge
or other disposition of a Class B-2 Certificate, Class SB Certificate or a Class
R Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Act"), and any applicable state securities laws or is
made in accordance with said Act and laws. In the event that a transfer of a
Class B-2 Certificate, Class SB Certificate or a Class R Certificate is to be
made under this Section 5.02(b), (i) the Depositor may direct the Trustee to
require an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Depositor that such transfer shall be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trustee, the Depositor
or the Master Servicer, provided that such Opinion of Counsel will not be
required in connection with the initial transfer of any such Certificate by the
Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii)
the Trustee shall require the transferee to execute a representation letter,
substantially in the form of Exhibit G-1 hereto, and the Trustee shall require
the transferor to execute a representation letter, substantially in the form of
Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which representation letters shall not be an
expense of the Trustee, the Depositor or the Master Servicer; provided however
that such representation letters will not be required in connection with any
transfer of any such Certificate by the Depositor to an affiliate of the
Depositor and the Trustee shall be entitled to conclusively rely upon a
representation (which, upon the request of the Trustee, shall be a written
representation) from the Depositor of the status of such transferee as an
affiliate of the Depositor. Any such Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor
and the Master Servicer against any liability that may result if the transfer is
not so exempt or is not made in accordance with such applicable federal and
state laws.
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(c) Transfers of the Class B-2 Certificates, Class SB and Class R
Certificates may be made in accordance with this Section 5.02(c) if the
prospective transferee of such a Certificate provides the Trustee and the
Depositor with an investment letter substantially in the form of Exhibit H
attached hereto, which investment letter shall not be an expense of the Trustee,
the Depositor or the Master Servicer, and which investment letter states that,
among other things, such transferee is a "qualified institutional buyer" as
defined under Rule 144A. Such transfers shall be deemed to have complied with
the requirements of Section 5.02(b) hereof; provided, however, that no Transfer
of any of the Class B-2 Certificate, Class SB and Class R Certificates may be
made pursuant to this Section 5.02(c) by the Depositor. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Depositor and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such applicable federal and state laws.
(d) The Trustee shall require an Opinion of Counsel from a
prospective transferee prior to the transfer of any Class A-2 Certificate, Class
B-1 Certificate, Class B-2 Certificate, Class SB Certificate or Class R
Certificate to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and Keogh plans, that is subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a
trustee or other Person acting on behalf of any Plan, or to any other person who
is using "plan assets" of any Plan to effect such acquisition (including any
insurance company using funds in its general or separate accounts that may
constitute "plan assets"). Such Opinion of Counsel must establish to the
satisfaction of the Depositor and the Trustee that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the
Trustee will be required to obtain such Opinion of Counsel on behalf of any
prospective transferee. In the case of any transfer of the foregoing
Certificates to an insurance company, in lieu of such Opinion of Counsel, the
Trustee shall require a certification in the form of Exhibit G-5 (or in such
other form as shall be mutually agreed upon by the Depositor and the Trustee)
substantially to the effect that all funds used by such transferee to purchase
such Certificates will be funds held by it in its general account which it
reasonably believes do not constitute "plan assets" of any Plan (as defined
above); provided however that such certification will not be required in
connection with any transfer of any such Certificate by the Depositor to an
affiliate of the Depositor and the Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor. The permission of any transfer in violation of
the restriction on transfer set forth in this paragraph shall not constitute a
default or an Event of Default. So long as the Class A-2 Certificates and the
Class B-1 Certificates are Book-Entry Certificates, any purchaser of a Class A-2
Certificate or a Class B-1 Certificate will be deemed to have represented by
such purchase that either (a) such purchaser is not an employee benefit plan or
other plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code and is not purchasing such Certificates on behalf of or with
"plan assets" of any Plan or (b) the purchase of any such Certificate by or on
behalf of or with "plan assets" of any Plan is permissible under applicable law,
will not result in any non-exempt prohibited transaction under ERISA or Section
4975 of
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the Code, and will not subject the Master Servicer, the Company or the Trustee
to any obligation in addition to those undertaken in this Agreement.
(e) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee or its designee under clause
(iii)(A) below to deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery to
it, and shall not register the Transfer of any Residual Certificate until
its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and
Agreement" in the form attached hereto as Exhibit G-3) from the proposed
Transferee, in form and substance satisfactory to the Master Servicer and
the Trustee representing and warranting, among other things, that it is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of this Section 5.02 and agrees to
be bound by them, and (II) a certificate, in the form attached hereto as
Exhibit G-4, from the Holder wishing to transfer the Residual Certificate,
in form and substance satisfactory to the Master Servicer and the Trustee
representing and warranting, among other things, that no purpose of the
proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Trustee assigned to this transaction has actual
knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer
its Ownership Interest in a Residual Certificate and (y) not to transfer
its Ownership Interest unless it provides a certificate to the Trustee in
the form attached hereto as Exhibit G-4.
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(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is "a pass-through
interest holder", or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit and Agreement
in the form attached hereto as Exhibit G-3, a certificate of the Holder
requesting such transfer in the form attached hereto as Exhibit G-4 and all of
such other documents as shall have been reasonably required by the Trustee as a
condition to such registration. Transfers of the Residual Certificates to
Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (A) If any Disqualified Organization shall become a Holder of
a Residual Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. If a Non-United States Person shall become a Holder of a
Residual Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. If a transfer of a Residual Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section
1.860G-3, then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by this Section 5.02 or for making any payments due on such Certificate to the
holder thereof or for taking any other action with respect to such holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section 5.02 and
to the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the holder or any prior holder of such Residual Certificate,
to sell such Residual Certificate to a purchaser selected by the Trustee on such
terms as the Trustee may choose. Such purported Transferee shall promptly
endorse and deliver each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee itself. The
proceeds of such sale, net of the commissions (which may include commissions
payable to the Trustee), expenses and taxes due, if any, will be remitted by the
Trustee to such purported Transferee. The terms and conditions of any sale under
this clause (iii)(B) shall be determined in the sole discretion of the Trustee,
and the Trustee shall not be liable to any Person having an Ownership Interest
in a Residual Certificate as a result of its exercise of such discretion.
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(iv) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all information
necessary to compute any tax imposed (A) as a result of the transfer of an
ownership interest in a Residual Certificate to any Person who is a Disqualified
Organization, including the information regarding "excess inclusions" of such
Class R Certificates required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E- 2(a)(5), and (B) as a result of any regulated investment company, real
estate investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record holders at any
time any Person who is a Disqualified Organization. The Trustee may charge and
shall be entitled to reasonable compensation for providing such information as
may be required from those Persons which may have had a tax imposed upon them as
specified in clauses (A) and (B) of this paragraph for providing such
information.
(f) Subject to the preceding paragraphs, upon surrender for
registration of transfer of any Certificate at the office of the Trustee
maintained for such purpose, the Trustee shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest. Every Certificate surrendered for transfer shall be
accompanied by notification of the account of the designated transferee or
transferees for the purpose of receiving distributions pursuant to Section 4.01
by wire transfer, if any such transferee desires and is eligible for
distribution by wire transfer.
(g) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at the office of the Trustee. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee) be duly endorsed by, or be accompanied by
a written instrument of transfer in the form satisfactory to the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made to the Certificateholders for
any transfer or exchange of Certificates, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
canceled and retained by the Trustee in accordance with the Trustee's standard
procedures.
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SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (ii) there is delivered to the Trustee such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and initial Certificate
Principal Balance. Upon the issuance of any new Certificate under this Section,
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee and any agent of any
of them may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and neither the Depositor,
the Master Servicer, the Trustee nor any agent of any of them shall be affected
by notice to the contrary.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Depositor and the Master Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor
or the Master Servicer.
The Depositor and the Master Servicer each will keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and each will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
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Any Person into which the Depositor may be merged, consolidated or
converted, or any corporation resulting from any merger or consolidation to
which the Depositor shall be a party, or any Person succeeding to the business
of the Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Any Person into which the Master Servicer may be merged,
consolidated or converted, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided, however, that
the successor or surviving Person to the Master Servicer must meet the criteria
set forth in Section 7.03 for a successor Master Servicer and shall be qualified
to sell mortgage loans to and service mortgage loans for FNMA or FHLMC.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others.
Neither the Depositor, the Master Servicer nor any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or the Master Servicer (but this
provision shall protect the above described persons) against any breach of
warranties or representations made herein, or against any specific liability
imposed on the Master Servicer pursuant to Section 3.01 or any other Section
hereof; and provided further that this provision shall not protect the
Depositor, the Master Servicer or any such person, against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Master Servicer and any
director, officer, employee or agent of the Depositor or the Master Servicer may
rely in good faith on any document of any kind PRIMA FACIE properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Master Servicer and any director, officer, employee or agent of the
Depositor or the Master Servicer shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense related to Master Servicer's servicing obligations
with respect to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or related to the Master Servicer's obligations under Section 3.01,
or any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. Neither the Depositor
nor the Master Servicer shall be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its respective duties under
this Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor or the Master
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Servicer may in its sole discretion undertake any such action which it may deem
necessary or desirable with respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom (except any action or liability related to the Master
Servicer's obligations under Section 3.01) shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor and the Master Servicer shall
be entitled to be reimbursed therefor from the Certificate Account as provided
in Section 3.11, any such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Certificate Account.
SECTION 6.04. Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon the (i) appointment by the Depositor of the
Trustee or a successor servicer that is reasonably acceptable to the Trustee and
that meets the criteria set forth in Section 7.03 for a successor Master
Servicer and (ii) receipt by the Trustee of a letter from each Rating Agency
that such a resignation and appointment will not, in and of itself, result in a
downgrading of the Certificates or (b) upon a determination that its duties
hereunder are no longer permissible under applicable law and the satisfaction of
the conditions specified in clause (a)(i) above. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a successor servicer shall have
assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Trustee for
distribution to the Certificateholders any payment (other than an Advance)
required to be made under the terms of the Certificates or this Agreement
which continues unremedied for a period of five days after the date upon
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Depositor (with a copy
to the Trustee) or the Trustee, or to the Master Servicer, the Depositor
and the Trustee by the Holders of Certificates entitled to at least 25% of
the Voting Rights; or
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements
on the part of the Master Servicer contained in the Certificates or in
this Agreement (including any breach of the Master Servicer's
representations and warranties pursuant to Section 2.03(a) which
materially and adversely affects the interests of the Certificateholders)
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor (with a copy to
the Trustee) or the Trustee, or to the Master Servicer, the Depositor and
the Trustee by the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or of or relating to all or substantially
all of its property; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of or otherwise voluntarily commence a case or proceeding under any
applicable bankruptcy, insolvency,
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reorganization or other similar statute, make an assignment for the
benefit of its credi- tors, or voluntarily suspend payment of its
obligations; or
(vi) the Master Servicer shall fail to deposit in the Certificate
Account on any Certificate Account Deposit Date an amount equal to any
required Advance.
If an Event of Default described in clauses (i) - (v) of this Section shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Depositor or the Trustee may, and at the
direction of the Holders of Certificates entitled to at least 51% of the Voting
Rights, the Trustee shall, by notice to the Master Servicer (and to the
Depositor if given by the Trustee or to the Trustee if given by the Depositor)
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (vi)
hereof shall occur, the Trustee shall, by notice to the Master Servicer and the
Depositor, terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder; provided, however, that if the Trustee determines
that the failure by the Master Servicer to make any required Advance was due to
circumstances beyond its control, and the required Advance was otherwise made,
the Trustee shall not terminate the Master Servicer. On or after the receipt by
the Master Servicer of such notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates (other
than as a holder thereof) or the Mortgage Loans or otherwise, shall pass to and
be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its appointed agent for administration by it of
all cash amounts which shall at the time be deposited by the Master Servicer or
should have been deposited to the Custodial Account, the Excess Proceeds Account
or the Certificate Account or thereafter be received with respect to the
Mortgage Loans. The Trustee shall not be deemed to have breached any obligation
hereunder as a result of a failure to make or delay in making any distribution
as and when required hereunder caused by the failure of the Master Servicer to
remit any amounts received on it or to deliver any documents held by it with
respect to the Mortgage Loans. For purposes of this Section 7.01, the Trustee
shall not be deemed to have knowledge of an Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Division has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement. The
Master Servicer shall promptly notify the Depositor and the Trustee of any event
that, with notice the passage of time or both would constitute an Event of
Default and of any event that is in fact an Event of Default.
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Notwithstanding any termination of the activities of Temple-Inland Mortgage
Corporation ("TIMC") in its capacity as Master Servicer hereunder, TIMC shall be
entitled to receive, out of any Late Collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating TIMC's rights and
obligations as Master Servicer hereunder and received after such notice, that
portion to which TIMC would have been entitled pursuant to Sections 3.11(ii),
(iii), (iv), (v) and (viii) and Sections 4.01(b)(v) as well as its Servicing Fee
in respect thereof, and any other amounts payable to TIMC hereunder the
entitlement to which arose prior to the termination of its activities hereunder.
SECTION 7.02. Termination Event.
The Trustee shall determine, beginning with the Determination Date
in July 1997 and as determined by the Trustee annually thereafter based on
information provided by the Master Servicer, whether the following tests are
satisfied: (a) if such Determination Date is in or before July 2001, whether the
related Total Expected Losses are greater than 50% of the Initial Loss Coverage
or (b) if such Determination Date is after July 2001 and in or before July 2006,
whether the related Total Expected Losses are greater than 75% of the Initial
Loss Coverage. If either of the tests in the previous sentence are satisfied, a
termination event (a "Termination Event") shall occur, and the Trustee shall
give notice to the Certificateholders, the Depositor and the Master Servicer
within 5 days of the occurrence of such Termination Event, and upon the
direction of Holders of Certificates entitled to at least 51% of the Voting
Rights, received within 90 days of such notice, the Trustee shall, by notice to
the Master Servicer and the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the Trust
Fund, other than its rights as a Certificateholder hereunder. On or after the
receipt by the Master Servicer of such notice, all authority and power of the
Master Servicer under this Agreement, whether with respect to the Certificates
(other than as a holder thereof) or the Mortgage Loans or otherwise, shall pass
to and be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its appointed agent for administration by it of
all cash amounts which shall at the time be deposited by the Master Servicer or
should have been deposited to the Custodial or the Certificate Account or
thereafter be received with respect to the Mortgage Loans. The Trustee shall not
be deemed to have breached any obligation hereunder as a result of a failure to
make or delay in making any distribution as and when required hereunder caused
by the failure of the Master Servicer to remit any amounts received on it or to
deliver any documents held by it with respect to the Mortgage Loans.
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SECTION 7.03. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or Section 7.02, the Trustee or its
appointed agent shall be the successor in all respects to the Master Servicer in
its capacity as Master Servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject thereafter to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer including the obligation to make Advances which have been or will be
required to be made (except for the responsibilities, duties and liabilities
contained in Section 2.03 and its obligations to deposit amounts in respect of
losses pursuant to Sections 3.12 and 4.01(c)) by the terms and provisions
hereof; and provided further, that any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide information
required by Section 4.03 shall not be considered a default by the Trustee
hereunder. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Mortgage Loans which the Master Servicer would have been
entitled to charge to the Custodial Account and the Certificate Account if the
Master Servicer had continued to act hereunder. Notwithstanding the above, the
Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so
act (exclusive of the obligations set forth in Section 4.03) or if the Holders
of Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, appoint, or petition a court of competent jurisdiction
to appoint, any mortgage loan servicing institution (acceptable to the Rating
Agencies) having a net worth of not less than $10,000,000 (or other amount
acceptable to the Rating Agencies) as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Master Servicer hereunder. The Seller, the Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
Any successor, including the Trustee, to the Master Servicer shall
maintain in force during its term as master servicer hereunder policies and
fidelity bonds to the same extent as the Master Servicer is so required pursuant
to Section 3.18.
SECTION 7.04. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt notice thereof to
Certificateholders.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
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SECTION 7.05. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder, may waive such
default or Event of Default; PROVIDED, HOWEVER, that (a) a default or Event of
Default under clause (i) of Section 7.01 may be waived only by all of the
Holders of Certificates affected by such default or Event of Default and (b) no
waiver pursuant to this Section 7.05 shall affect the Holders of Certificates in
the manner set forth in the third paragraph of Section 11.01. Upon any such
waiver of a default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates affected by such default
or Event of Default, such default or Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default occurs and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take action as it deems appropriate to have the instrument
corrected.
The Trustee shall sign on behalf of the Trust Fund any tax return
that the Trustee is required to sign pursuant to applicable federal, state or
local tax laws.
The Trustee covenants and agrees that it shall perform its
obligations hereunder in a manner so as to maintain the status of the Trust Fund
as a REMIC under the REMIC Provisions and to prevent the imposition of any
federal, state or local income, prohibited transaction, contribution or other
tax on the Trust Fund to the extent that maintaining such status and avoiding
such taxes are reasonably within the control of the Trustee and are reasonably
within the scope of its duties under this Agreement.
The Trustee shall cooperate to the extent practicable, with the
Depositor in the preparation of any information, for the Holder of any
Certificate, which the Depositor in its sole discretion deems necessary and
appropriate for purposes of satisfying applicable information reporting
requirements under Rule 144A or otherwise.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such
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duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct
or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been
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cured), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in
writing to do so by Holders of Certificates entitled to at least 25%
of the Voting Rights; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination
shall be paid by the Master Servicer or, if paid by the Trustee,
shall be repaid by the Master Servicer upon demand; and
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the signature of the Trustee on the Certificates and the certificate of
authentication, shall be taken as the statements of the Depositor or the Master
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document, other than the signature of the Trustee on
the Certificates and the Certificate of Authentication. The Trustee shall not be
accountable for the use or application by the Depositor or the Master Servicer
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Seller in respect of the Mortgage
Loans or deposited in or withdrawn from the Custodial Account, the Excess
Proceeds Account or the Certificate Account or any other account by or on behalf
of the Depositor or the Master Servicer, other than any funds held by or on
behalf of the Trustee in accordance with Section 3.10.
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SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
SECTION 8.05. Master Servicer to Pay Trustee's Fees.
The Master Servicer covenants and agrees to pay to the Trustee or
any co-trustee appointed pursuant to Section 8.10 from time to time, and the
Trustee and such co-trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee or any co-trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder or of the Trustee or any
co-trustee. Except as otherwise provided in this Agreement, the Trustee or any
co-trustee and any director, officer, employee or agent of the Trustee or any
co-trustee shall be indemnified by the Trust Fund and held harmless against any
claim, loss, liability or expense incurred in connection with any Event of
Default, any breach of this Agreement, any claim or legal action, including any
pending or threatened claim or legal action relating to the acceptance or
administration of its trusts hereunder or the Certificates, other than any
claim, loss, liability or expense incurred in connection with a breach
constituting willful misfeasance, bad faith or negligence of the Trustee or any
co-trustee in the performance of its duties hereunder or by reason of reckless
disregard of its obligations and duties hereunder. The provisions of this
Section 8.05 shall survive the termination of this Agreement.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a
national banking association organized and doing business under the laws of any
state or the United States of America or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. In addition, the Trustee shall at all times be
acceptable to the Rating Agency rating the Certificates. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07. The corporation or national banking association serving as Trustee
may have normal banking and trust relationships with the Seller and its
affiliates or the Master Servicer and its affiliates; provided, however, that
such corporation cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
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SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving notice thereof to the Depositor, the Master Servicer
and to all Certificateholders; provided, that such resignation shall not be
effective until a successor trustee is appointed and accepts appointment in
accordance with the following provisions. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a successor trustee who
meets the eligibility requirements of Section 8.06 by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Master Servicer by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 60
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee; provided, however, that the resigning Trustee shall not resign and be
discharged from the trusts hereby created until such time as the Rating Agency
rating the Certificates approves the successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Master Servicer, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the rating of the long-term debt obligations of the Trustee is not acceptable to
the Rating Agency in respect of mortgage pass-through certificates having a
rating equal to the then current rating on the Certificates, then the Master
Servicer may remove the Trustee and appoint a successor trustee who meets the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Master Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Master Servicer
by the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
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SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Master Servicer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder, and
the Master Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Master Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and
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trusts as the Depositor and the Trustee may consider necessary or desirable. If
the Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the respective obligations and
responsibilities of the Depositor, the Master Servicer and the Trustee created
hereby (other than the obligations of the Master Servicer to the Trustee
pursuant to Section 8.05 and of the Master Servicer to provide for and the
Trustee to make payments to Certificateholders as hereafter set forth) shall
terminate upon payment to the Certificateholders of all amounts held by or on
behalf of the Trustee and required to be paid to them hereunder following the
earlier to occur of (i) the repurchase by the Master Servicer of all Mortgage
Loans and each REO Property in respect thereof remaining in the Trust Fund at a
price equal to (a) 100% of the unpaid principal balance of each Mortgage Loan
(other than one as to which a REO Property was acquired) on the day of
repurchase together with accrued interest on such unpaid principal balance at
the Net Mortgage Rate to the first day of the month in which the proceeds of
such repurchase are to be distributed, plus (b) the appraised value of any REO
Property (but not more than the unpaid principal balance of the related Mortgage
Loan, together with accrued interest on that balance at the Net Mortgage Rate to
the first day of the month of repurchase), less the good faith estimate of the
Master Servicer of liquidation expenses to be incurred in connection with its
disposal thereof, such appraisal to be conducted by an appraiser mutually agreed
upon by the Master Servicer and the Trustee; and (ii) the final payment or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund (or the disposition of all REO Property in respect
thereof); provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the Court of St. James, living on the date hereof. In the case of any
repurchase by the Master Servicer pursuant to clause (i), the Master Servicer
shall include in such repurchase price the amount of any Advances that will be
reimbursed to the Master Servicer pursuant to Section 3.11(iii) and the Master
Servicer shall exercise reasonable efforts to cooperate fully with the Trustee
in effecting such repurchase and the transfer of the Mortgage Loans and related
Mortgage Files and related records to the Master Servicer.
The right of the Master Servicer to repurchase all Mortgage Loans
pursuant to (i) above shall be conditioned upon the aggregate Stated Principal
Balance of such Mortgage Loans at the time of any such repurchase aggregating an
amount equal to or less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date. If such right is exercised, the Master
Servicer upon such repurchase shall provide to the Trustee, the certification
required by Section 3.16.
Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final
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distribution and cancellation, shall be given promptly by the Master Servicer by
letter to the Trustee and the Certificateholders mailed (a) in the event such
notice is given in connection with the Master Servicer's election to repurchase,
not earlier than the 15th day and not later than the 25th day of the month next
preceding the month of such final distribution or (b) otherwise during the month
of such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Certificate Registrar therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Certificate Registrar
therein specified. In the event such notice is given in connection with the
Master Servicer's election to repurchase, the Master Servicer shall deliver to
the Trustee for deposit in the Certificate Account on the Business Day
immediately preceding the Distribution Date specified in such notice an amount
equal to the above-described repurchase price payable out of its own funds. Upon
presentation and surrender of the Certificates by the Certificateholders, the
Trustee shall distribute to the Certificateholders (i) the amount otherwise
distributable on such Distribution Date, if not in connection with the Master
Servicer's election to repurchase, or (ii) if the Master Servicer elected to so
repurchase, an amount determined as follows: with respect to each Class A-1
Certificate, Class A-2 Certificate, Class B-1 Certificate and Class B-2
Certificate, the outstanding Certificate Principal Balance thereof, plus one
month's interest thereon at the applicable Pass-Through Rate and any previously
unpaid Accrued Certificate Interest; with respect to each Class SA Certificate,
one month's interest at the applicable Pass-Through Rate based upon the Notional
Amount and any previously unpaid Accrued Certificate Interest; with respect to
each Class SB Certificate, the Outstanding Class SB Unpaid Interest Amount for
such Distribution Date plus one month's interest at the applicable Pass-Through
Rate based upon the Notional Amount and any previously unpaid Accrued
Certificate Interest; and with respect to each Class R Certificate, the
Percentage Interest evidenced thereby multiplied by the difference, if any,
between the above described repurchase price and the aggregate amount to be
distributed to the Class SA Certificateholders, the Class A-1
Certificateholders, the Class A-2 Certificateholders, the Class B-1
Certificateholders, the Class B-2 Certificateholders and the Class SB
Certificateholders. Upon certification to the Trustee by a Servicing Officer,
following such final deposit, the Trustee shall promptly release the Mortgage
Files as directed by the Master Servicer for the remaining Mortgage Loans, and
the Trustee shall execute all assignments, endorsements and other instruments
required by the Master Servicer as being necessary to effectuate such transfer.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the time specified
in the above-mentioned notice, the Trustee shall give a second notice to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within six months
after the second notice all of the Certificates shall not have been surrendered
for cancellation, the Trustee shall take reasonable steps as directed by the
Depositor, or appoint an agent to take reasonable steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other assets which
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remain subject hereto. If, within nine months after the second notice, all of
the Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) In the event the Master Servicer repurchases the Mortgage Loans
as provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Master Servicer, at its
own expense, obtains for the Trustee an Opinion of Counsel to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
9.02 will not (i) result in the imposition of taxes on the net income derived
from "prohibited transactions" of the Trust Fund as defined in Section 860F of
the Code or (ii) cause the Trust Fund to fail to qualify as a REMIC under the
REMIC Provisions at any time that any Certificates are outstanding:
(i) The Trustee shall establish a 90-day liquidation period for the
Trust Fund and specify the first day of such period in a statement
attached to the Trust Fund's final Tax Return pursuant to Treasury
Regulation Section 1.860F-1. The Trustee shall satisfy all the
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder, as evidenced by an Opinion of Counsel obtained
at the expense of the Master Servicer;
(ii) During such 90-day liquidation period, and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of the Trust Fund for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R Certificates all
cash on hand in the Trust Fund (other than cash retained to meet claims),
and the Trust Fund shall terminate at that time.
(b) By their acceptance of the Class R Certificates, the Holders
thereof hereby agree to authorize the Trustee to specify the 90-day liquidation
period for the Trust Fund, which authorization shall be binding upon all
successor Class R Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall make an election to treat the Trust Fund as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued. For
purposes of the REMIC election in respect of the Trust Fund, the Class SA, Class
A-1, Class A-2, Class B-1, Class B-2 and Class SB Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole Class of "residual interest" in the REMIC. The Trustee
shall not permit the creation of any "interests" in the Trust Fund (within the
meaning of Section 860G of the Code) other than the interests represented by the
Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" the
REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay out of its own funds, without any right of
reimbursement, any and all expenses relating to any tax audit of the Trust Fund
(including, but not limited to, any professional fees or any administrative or
judicial proceedings with respect thereto that involved the Internal Revenue
Service or state tax authorities), other than the expense of obtaining any tax
related Opinion of Counsel not obtained in connection with such an audit and
other than taxes, in either case except as specified herein; provided, however,
that if such audit resulted from the negligence of the Master Servicer or the
Depositor, then the Master Servicer or the Depositor, as the case may be, shall
pay such expenses. The Trustee shall hold a Class R Certificate representing a
0.01% Percentage Interest of all Class R Certificates and shall be designated as
the tax matters person of the Trust Fund in the manner provided under Treasury
Regulations Section 1.860F-4(d) and Temporary Treasury Regulations Section
301.6231(a)(7)-1T. The Trustee, as tax matters person, shall (i) act on behalf
of the Trust Fund in relation to any tax matter or controversy involving the
Trust Fund and (ii) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. To the extent authorized under the Code and the
regulations promulgated thereunder, each Holder of a Class R Certificate, hereby
irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for
purposes of signing any Tax Returns required to be filed on behalf of the Trust
Fund.
(d) The Trustee shall prepare or cause to be prepared, sign and file
all of the Tax Returns in respect of the Trust Fund created hereunder, other
than Tax Returns required to be filed by the Master Servicer pursuant to Section
4.05. The expenses of preparing and filing such returns shall be borne by the
Trustee without any right of reimbursement therefor.
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(e) The Trustee shall perform on behalf of the Trust Fund all
reporting and other tax compliance duties that are the responsibility of the
Trust Fund under the Code, REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC Provisions or other such
compliance guidance, the Trustee shall provide (i) to any Transferor of a Class
R Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Disqualified Organization, (ii) to Certificateholders such information or
reports as are required by the Code or the REMIC Provisions including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the person who will serve as the
representative of the Trust Fund. In addition, the Depositor shall provide or
cause to be provided to the Trustee, within ten (10) days after the Closing
Date, all information or data that the Trustee reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Trustee shall take such action and shall cause the Trust
Fund created hereunder to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the
Master Servicer shall assist it, to the extent reasonably requested by it). The
Trustee shall not take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the Trust Fund as a REMIC or (ii) result in the imposition of a tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee received an Opinion of
Counsel (at the expense of the party seeking to take such action but in no event
shall such Opinion of Counsel be an expense of the Trustee) to the effect that
the contemplated action will not, with respect to the Trust Fund created
hereunder, endanger such status or result in the imposition of such a tax. The
Master Servicer shall not take or fail to take any action (whether or not
authorized hereunder) as to which the Trustee has advised it in writing that it
has received an Opinion of Counsel (which such Opinion of Counsel shall not be
an expense of the Trustee) to the effect that an Adverse REMIC Event could occur
with respect to such action. In addition, prior to taking any action which is
not expressly permitted under the terms of this Agreement, the Master Servicer
will consult with the Trustee or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
the Trust Fund, and the Master Servicer shall not take any such action or cause
the Trust Fund to take any such action as to which the Trustee has advised it in
writing that an Adverse REMIC Event could occur. The Trustee may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement (but in no
event shall such cost be an expense of the Trustee). At all times as may be
required by the Code, the Trustee will ensure that substantially all of the
assets of the Trust Fund will consist of "qualified
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mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of the Trust Fund created hereunder as defined in Section
860F(a)(2) of the Code, on "net income from foreclosure property" of the Trust
Fund as defined in Section 860G(c) of the Code, on any contributions to the
Trust Fund after the Startup Day therefor pursuant to Section 860G(d) of the
Code, or any other tax is imposed by the Code or any applicable provisions of
state or local tax laws, such tax shall be charged (i) to the Trustee pursuant
to Section 10.03 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (ii) to the Master
Servicer pursuant to Section 10.03 hereof, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under Article III
or this Article X, or otherwise (iii) against amounts on deposit in the
Certificate Account and shall be paid by withdrawal therefrom.
(h) On or before April 15 of each calendar year, commencing April
15, 1997, the Trustee shall deliver to the Master Servicer and each Rating
Agency a Certificate from a Responsible Officer of the Trustee stating the
Trustee's compliance with this Article X.
(i) The Master Servicer and the Trustee shall, for federal income
tax purposes, maintain books and records with respect to the Trust Fund on a
calendar year and on an accrual basis.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Trust Fund unless it shall have received an
Opinion of Counsel (which such Opinion of Counsel shall not be an expense of the
Trustee) to the effect that the inclusion of such assets in the Trust Fund will
not cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the Trust Fund to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(k) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which the Trust Fund will receive a fee or other compensation for
services nor permit the REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(l) Solely for purposes of satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest possible maturity date" by which the
Certificate Principal Balances of each Class of Certificates representing a
regular interest in the Trust Fund would be reduced to zero is July 25, 2026,
which is the Distribution Date immediately following the latest scheduled
maturity of any Mortgage Loan.
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(m) Within 30 days after the Closing Date, The Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMICs) and Issuers of Collateralized
Debt Obligations" for the Trust Fund.
SECTION 10.02. Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall
sell, dispose of or substitute for any of the Mortgage Loans, except in
connection with (i) the foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement, nor
acquire any assets for the Trust Fund, nor sell or dispose of any investments in
the Custodial Account or the Certificate Account for gain, nor accept any
contributions to the Trust Fund after the Closing Date unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, substitution or acquisition but in no event shall such Opinion of
Counsel be an expense of the Trustee) that such sale, disposition, substitution
or acquisition will not (a) affect adversely the status of the Trust Fund as a
REMIC or (b) cause the Trust Fund to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions.
SECTION 10.03. Master Servicer and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor
and the Master Servicer for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Master Servicer, as a result of a breach of the Trustee's
covenants set forth in this Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of a breach of the Master
Servicer's covenants set forth in this Article X or in Article III with respect
to compliance with the REMIC Provisions, including without limitation, any
penalties arising from the Trustee's execution of Tax Returns prepared by the
Master Servicer that contain errors or omissions.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement may be amended from time to time by the Depositor,
the Master Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be defective or inconsistent with any other
provisions herein, (iii) to amend this Agreement in any respect subject to the
provisions below, or (iv) if such amendment, as evidenced by an Opinion of
Counsel (provided by the Person requesting such amendment) delivered to the
Trustee, is reasonably necessary to comply with any requirements imposed by the
Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to the
Trust Fund at least from the effective date of such amendment; provided that
such action (except any amendment described in (iv) above) shall not, as
evidenced by an Opinion of Counsel (provided by the Person requesting such
amendment) delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder (other than Certificateholders who shall
consent to such amendment).
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates entitled to at least 66-2/3% of the Voting Rights for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates in a
manner other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing at least 66-2/3% of the Voting Rights of
such Class, or (iii) reduce the aforesaid percentage of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Seller or the Master Servicer or any affiliate thereof shall be entitled to
Voting Rights with respect to matters described in (i), (ii) and (iii) of this
paragraph.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel (provided by the Person requesting
such amendment) to the effect that such amendment will not result in the
imposition of any tax on the Trust Fund pursuant to the REMIC Provisions
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or cause the Trust Fund to fail to qualify as a REMIC at any time that any of
the Certificates are outstanding.
Promptly after the execution of any such amendment the Trustee shall
furnish a statement describing the amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Prior to executing any amendment pursuant to this Section, the
Trustee shall be entitled to receive an Opinion of Counsel (provided by the
Person requesting such amendment) to the effect that such amendment is
authorized or permitted by this Agreement. The cost of an Opinion of Counsel
delivered pursuant to this Section 11.01 shall be an expense of the party
requesting such amendment, but in any case shall not be an expense of the
Trustee.
The Trustee may, but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at the expense of the Depositor on direction by the Trustee,
but only upon direction accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
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No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a notice of an Event of Default, or
of a default by the Seller or the Trustee in the performance of any obligation
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates entitled to at least 25% of the Voting Rights
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
All demands, notices and direction hereunder shall be in writing and
shall be deemed effective upon receipt when delivered to (a) in the case of the
Depositor, 277 Park Avenue, 9th Floor, New York, New York 10172, Attention: N.
Dante LaRocca, or such other address as may hereafter be furnished to the
Trustee and the Master Servicer in writing by the Depositor, (b) in the case of
the Trustee, Four Albany Street, New York, New York 10006, Attention:
DLJ/Quality Series 1996-Q6, or such other address as may hereafter be furnished
to the Master Servicer and the Depositor in writing by the Trustee, (c) in the
case of the Master
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Servicer, Temple-Inland Mortgage Corporation, 301 Congress Avenue #304, Austin,
Texas 78701 Attention: Richard Magel, or such other address as may hereafter be
furnished to the Depositor and the Trustee in writing and (d) in the case of the
Seller, Quality Mortgage USA, Inc., 16800 Aston Street, Irvine, California
92714, Attention: President, or such other address as may hereafter be furnished
to the Trustee, the Master Servicer and the Depositor in writing. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Successors and Assigns; Third Party Beneficiary.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Trustee and the
Certificateholders. The parties hereto agree that the Seller is the intended
third party beneficiary of Sections 3.07, 3.10 and 3.22 hereof, and that the
Seller may enforce such provisions to the same extent as if the Seller were a
party to this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notice to Rating Agencies and Certificateholder.
The Trustee shall use its best efforts to promptly provide notice to
the Rating Agency referred to below with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee;
4. The repurchase of Mortgage Loans pursuant to Section 2.03;
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5. The final payment to Certificateholders; and
6. Any change in the location of the Custodial Account, the Excess
Proceeds Account or the Certificate Account.
In addition, the Trustee shall promptly furnish to the Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.02; and
2. Each annual independent public accountants' servicing report
described in Section 3.20.
Any such notice pursuant to this Section 11.09 shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to (i) in the
case of Moody's Investors Service, Inc., 99 Church Street, New York, New York
10007, Attention: Residential Pass-Through Monitoring or (ii) in the case of
Duff & Phelps Credit Rating Co., 55 East Monroe Street, 35th Floor, Chicago,
Illinois 60603, Attention: MBS Monitoring, or such other address as either
Rating Agency may designate in writing to the parties thereto.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized all as of the day and year first above written.
DLJ MORTGAGE ACCEPTANCE CORP.,
Depositor
By: /s/ Paul Najarian
--------------------------------
Name: Paul Najarian
Title: Vice President
TEMPLE-INLAND MORTGAGE CORPORATION,
Master Servicer
By: /s/ Joe Farr
--------------------------------
Name: Joe Farr
Title: EVP/CFO
BANKERS TRUST COMPANY,
Trustee
By: /s/ Gary Vaughn
--------------------------------
Name: Gary Vaughn
Title: AVP
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of June, 1996 before me, a notary public in and for
said State, personally appeared Paul Najarian, known to me to be a Senior
Vice President of DLJ Mortgage Acceptance Corp., a corporation that executed the
within instrument, and also known to me to be the person who executed the within
instrument on behalf of said corporation as a duly authorized officer of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Jim Meredino
----------------------------
Jim Meredino
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF TRAVIS )
On the 25th day of June, 1996 before me, a notary public in and for
said State, personally appeared Joe Farr, known to me to be a EVP/CFO of
Temple-Inland Mortgage Corporation, a corporation that executed the within
instrument, and also known to me to be the person who executed the within
instrument on behalf of said corporation as a duly authorized officer of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Kelly Glass
----------------------------
Kelly Glass
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of June, 1996 before me, a notary public in and for
said State, personally appeared Todd A. Andrew, known to me to be a Assistant
Vice President of Bankers Trust Company, a corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation as a duly authorized officer of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Jim Meredino
----------------------------
Jim Meredino
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A
FORM OF SENIOR CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
[THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO THE CLASS SA
CERTIFICATES AND THE CLASS A-1 CERTIFICATES OF THE SAME SERIES TO
THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT.]
[NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$____ OF OID PER [$100,000] [$1,000] OF INITIAL [NOTIONAL AMOUNT] [CERTIFICATE
PRINCIPAL BALANCE], THE YIELD TO MATURITY IS ___ AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $___ PER [$100,000]
[$1,000] OF INITIAL [NOTIONAL AMOUNT] [CERTIFICATE PRINCIPAL BALANCE], COMPUTED
USING THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT RATES BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.]
<PAGE>
-2-
Series 1996-Q6 Aggregate Initial [Notional Amount]
[Certificate Principal Balance] of the Class
[SA][A-1][A-2] Certificates: $---------
Class [SA][A-1][A-2] Initial [Notional Amount] [Certificate
Principal Balance] of this Certificate:
$_________________
[Variable][Adjustable] Initial Pass-Through Rate: _________%
Pass-Through Rate
Date of Pooling and Servicing
Agreement and Cut-off Date:
June 1, 1996 Issue Date:
June 27, 1996
First Distribution Date:
July 25, 1996
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: _________________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-Q6, CLASS [SA][A-1][A-2]
evidencing a beneficial ownership interest in a trust fund
consisting primarily of a pool of conventional fixed- and
adjustable-rate fully amortizing one- to four-family first
lien residential mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that is the registered owner of the Percentage
Interest specified above in that certain beneficial ownership interest evidenced
by all of the Class [SA][A-1][A-2] Certificates in the Trust Fund (as defined
herein) established under a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among DLJ Mortgage Acceptance Corp. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
Temple-Inland Mortgage Corporation (the "Master Servicer") and Bankers Trust
Company (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. The Percentage Interest evidenced hereby is equal
to the initial [Notional Amount] [Certificate Principal Balance] of this
Certificate divided by the aggregate initial [Notional Amount] [Certificate
Principal Balance] of all of the Class [SA][A- 1][A-2] Certificates as specified
above. The Certificates of the Series specified above
<PAGE>
-3-
(collectively, the "Certificates") evidence in the aggregate the entire
beneficial ownership interest in a segregated pool of assets created pursuant to
the Agreement comprised of conventional, fixed- and adjustable-rate, fully
amortizing, one- to four-family, residential first lien mortgage loans (the
"Mortgage Loans"), or interests therein, and certain other assets as described
herein. To the extent not defined herein, the capitalized terms used herein have
the meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business (i) with respect to any Distribution Date
other than the First Distribution Date, on the last Business Day of the month
immediately preceding the month of such distribution and (ii) with respect to
the First Distribution Date the Issue Date (with respect to (i) and (ii), the
"Record Date"), from the Available Distribution Amount an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class [SA][A-1][A-2] Certificates
on such Distribution Date pursuant to the Agreement. [The Notional Amount of the
Class SA Certificates as of any date of determination will be determined
pursuant to the Agreement. The Class SA Certificates have no Certificate
Principal Balance.] Reference is hereby made to the further provisions of this
Certificate and the Agreement set forth herein, which further provisions shall
for all purposes have the same effect as though fully set forth at this place.
All distributions will be made or caused to be made by the
Trustee either by check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register or (ii) at the
request of the Person entitled thereto if such Person shall have so notified the
Trustee in writing by 5 Business Days prior to the applicable Record Date and
such Certificateholder is the registered holder of Certificates the aggregate
Initial Certificate Principal Balance of which is not less than $2,500,000 (or,
with respect to the Class SA Certificates and the Class SB Certificates, is the
registered holder of an aggregate initial Notional Amount of not less than
$10,000,000 of the Class SA Certificates and the Class SB Certificates), in
immediately available funds by wire transfer to the account of such Person.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Master Servicer of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office of the Trustee. [The Certificate Principal Balance hereof will be reduced
to the extent of distributions allocable to principal and the principal portions
of any Realized Losses allocable hereto.]
This Certificate is one of a duly authorized issue of
Certificates of the series and class specified on the face hereof. The
Certificates in the aggregate represent the entire beneficial ownership interest
in: (i) the Mortgage Loans (exclusive of payments of principal and interest due
on or before the Cut-off Date) as from time to time are subject to the Agreement
and all payments under and proceeds of the Mortgage Loans, together with all
documents
<PAGE>
-4-
included in the related Mortgage File; (ii) such funds or assets as from time to
time are deposited in the Custodial Account, the Excess Proceeds Account or the
Certificate Account; (iii) any REO Property; (iv) the Primary Hazard Insurance
Policies, if any, and all other insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to the Agreement; and (v) the
Depositor's interest in respect of the representations and warranties made by
the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Trustee or any Sub-Servicer
and are not insured or guaranteed by any governmental agency or instrumentality
or by any other person or entity. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office, duly endorsed by, or accompanied by
an assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial [Notional Amount] [Certificate Principal Balance] will be issued to the
designated transferee or transferees.
[No transfer of any Class A-2 Certificate shall be made to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and Keogh plans, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"),
to any Person acting on behalf of a Plan, or to any other person who is using
"plan assets" to effect such acquisition (including any insurance company using
funds in its general or separate accounts that may constitute "plan assets"),
unless the prospective transferee of a Certificateholder desiring to transfer
its Certificates provides to the Trustee or
<PAGE>
-5-
the Certificate Registrar an Opinion of Counsel (or, in the limited
circumstances described in the Agreement, a certification of facts) which
establishes to the satisfaction of the Depositor and the Trustee or the
Certificate Registrar that such disposition will not violate the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Internal
Revenue Code of 1986, as amended. In the case of any transfer of the foregoing
Certificates to an insurance company, in lieu of such Opinion of Counsel, the
Trustee shall require a certification in the form of Exhibit G-5 to the
Agreement.]
The Certificates are issuable in fully registered form only,
without coupons, and in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate initial [Notional Amount]
[Certificate Principal Balance], as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any
agent of the Depositor, the Master Servicer or the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the purchase by the
Master Servicer of all Mortgage Loans and each REO Property in respect thereof,
or (ii) the final payment on, or other liquidation (or any advance with respect
thereto) of, the last Mortgage Loan remaining in the Trust Fund (or the
disposition of all REO Property in respect thereof). The Agreement permits, but
does not require, the Master Servicer to purchase from the Trust Fund all
Mortgage Loans and all property acquired in respect of any Mortgage Loan at a
price determined as provided in the Agreement. The exercise of the Master
Servicer's right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 5% of the
aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off Date.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be.
<PAGE>
IN WITNESS WHEREOF, the Trustee in its capacity as trustee
under the Agreement has caused this Certificate to be duly executed.
Dated: June ___, 1996 BANKERS TRUST COMPANY,
as Trustee
By:________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [SA][A-1][A-2] Certificates referred
to in the within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class [SA][A-1][A-2] Certificate
and hereby authorizes the registration of transfer of such interest to the
above-named assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class [SA][A-1][A-2]
Certificate of a like initial [Notional Amount] [Certificate Principal Balance]
to the above-named assignee and deliver such Certificate to the following
address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of ____________________________, account number _______________,
or, if mailed by check, to ____________________. Applicable statements should be
mailed to _______________. This information is provided by ____________________,
the assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT B-1
FORM OF CLASS [B-1][B-2] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
THIS CLASS [B-1][B-2] CERTIFICATE IS SUBORDINATE TO THE CLASS SA CERTIFICATES,
THE CLASS A-1 CERTIFICATES[,] [AND] THE CLASS A-2 CERTIFICATES [AND THE CLASS
B-1 CERTIFICATES] OF THE SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE
AGREEMENT.
[THIS CLASS B-2 CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.]
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$___ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO
MATURITY IS ___ % AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL
<PAGE>
-2-
CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT RATES BASED ON THE
PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.]
<PAGE>
-1-
Series 1996-Q6 Aggregate Initial Certificate Principal
Balance of the Class [B-1][B-2] Certificates:
$______
Class [B-1][B-2] Initial Certificate Principal Balance of this
Certificate: $_______
Adjustable Pass-Through Initial Pass-Through Rate: __%
Rate
Date of Pooling and Servicing
Agreement and Cut-off Date:
June 1, 1996 Issue Date:
June 27, 1996
First Distribution Date:
July 25, 1996
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: __________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-Q6, Class [B-1][B-2]
evidencing a beneficial ownership interest in a trust fund
consisting primarily of a pool of conventional fixed- and
adjustable-rate fully amortizing one- to four-family first
lien residential mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that is the registered owner of the Percentage
Interest specified above in that certain beneficial ownership interest evidenced
by all of the Class [B-1][B-2] Certificates in the Trust Fund (as defined
herein) established under a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among DLJ Mortgage Acceptance Corp. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
Temple-Inland Mortgage Corporation (the "Master Servicer") and Bankers Trust
Company (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. The Percentage Interest evidenced hereby is equal
to the initial Certificate Principal Balance of this Certificate divided by the
aggregate initial Certificate Principal Balance of all of the Class [B-1][B-2]
Certificates as specified above. The Certificates of the Series specified above
(collectively, the "Certificates") evidence in the aggregate the entire
beneficial ownership interest in a segregated pool of assets created pursuant to
the Agreement comprised of conventional, fixed- and adjustable-rate, fully
amortizing, one- to four-family, residential first lien mortgage loans (the
"Mortgage Loans"), or interests therein, and certain other assets as described
herein. To the extent not defined herein, the capitalized terms used
<PAGE>
-2-
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business (i) with respect to any Distribution Date
other than the First Distribution Date, on the last Business Day of the month
immediately preceding the month of such distribution and (ii) with respect to
the First Distribution Date the Issue Date (with respect to (i) and (ii), the
"Record Date"), from the Available Distribution Amount an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class [B-1][B-2] Certificates on
such Distribution Date pursuant to the Agreement. Reference is hereby made to
the further provisions of this Certificate and the Agreement set forth herein,
which further provisions shall for all purposes have the same effect as though
fully set forth at this place.
All distributions will be made or caused to be made by the
Trustee either (i) by check mailed to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register or
(ii) at the request of the Person entitled thereto if such Person shall have so
notified the Trustee in writing by 5 Business Days prior to the applicable
Record Date and such Certificateholder is the registered holder of Certificates
the aggregate Initial Certificate Principal Balance of which is not less than
$2,500,000 (or, with respect to the Class SA Certificates and the Class SB
Certificates, is the registered holder of an aggregate initial Notional Amount
of not less than $10,000,000 of the Class SA Certificates and the Class SB
Certificates), in immediately available funds by wire transfer to the account of
such Person. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Master Servicer of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee. The Certificate Principal Balance
hereof will be reduced to the extent of distributions allocable to principal and
the principal portions of any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of
Certificates of the series and class specified on the face hereof. The
Certificates in the aggregate represent the entire beneficial ownership interest
in: (i) the Mortgage Loans (exclusive of payments of principal and interest due
on or before the Cut-off Date) as from time to time are subject to the Agreement
and all payments under and proceeds of the Mortgage Loans, together with all
documents included in the related Mortgage File; (ii) such funds or assets as
from time to time are deposited in the Custodial Account, the Excess Proceeds
Account or the Certificate Account; (iii) any REO Property; (iv) the Primary
Hazard Insurance Policies, if any, and all other insurance policies with respect
to the Mortgage Loans required to be maintained pursuant to the Agreement; and
(v) the Depositor's interest in respect of the representations and warranties
made
<PAGE>
-3-
by the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Trustee or any Sub-Servicer
and are not insured or guaranteed by any governmental agency or instrumentality
or by any other person or entity. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial Certificate Principal Balance will be issued to the designated
transferee or transferees.
[No transfer of any Class B-2 Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In the
event that a transfer is to be made without such registration or qualification,
(a) the Trustee and the Depositor shall require the transferee to execute an
investment letter in substantially the form attached as either Exhibit G-1 or
Exhibit H, as applicable, to the Agreement, which investment letter shall not be
an expense of the Depositor, the Master Servicer or the Trustee and (b) in the
event that such a transfer is not being made pursuant to Rule 144A under the
1933 Act, the Depositor may direct the Trustee to require an Opinion of Counsel
satisfactory to the Depositor and the Trustee that such transfer may be made
without such registration or qualification, which Opinion of Counsel shall not
be an expense of the Depositor, the Trustee or the Master Servicer.
<PAGE>
-4-
Neither the Depositor nor the Trustee is obligated to register or qualify any of
the Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.]
No transfer of any Class [B-1][B-2] Certificate shall be made
to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and Keogh plans, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"; any of foregoing, a
"Plan"), to any Person acting on behalf of a Plan, or to any other person who is
using "plan assets" to effect such acquisition (including any insurance company
using funds in its general or separate accounts that may constitute "plan
assets"), unless the prospective transferee of a Certificateholder desiring to
transfer its Certificates provides to the Trustee or the Certificate Registrar
an Opinion of Counsel (or, in the limited circumstances described in the
Agreement, a certification of facts) which establishes to the satisfaction of
the Depositor and the Trustee or the Certificate Registrar that such disposition
will not violate the prohibited transaction provisions of Section 406 of ERISA
and Section 4975 of the Internal Revenue Code of 1986, as amended. In the case
of any transfer of the foregoing Certificates to an insurance company, in lieu
of such Opinion of Counsel, the Trustee shall require a certification in the
form of Exhibit G-5 to the Agreement.
The Certificates are issuable in fully registered form only,
without coupons, and in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate initial Certificate
Principal Balance, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any
agent of the Depositor, the Master Servicer or the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the purchase by the
Master Servicer of all Mortgage Loans and each REO Property in respect thereof,
or (ii) the final payment on, or other liquidation (or any advance with respect
thereto) of, the last Mortgage Loan remaining in the Trust Fund (or the
disposition of all REO Property in respect thereof). The Agreement permits, but
does not require, the Master Servicer to purchase from the Trust Fund all
Mortgage Loans and all property acquired in respect of any
<PAGE>
-5-
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of the Master Servicer's right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than or equal
to 5% of the aggregate Stated Principal Balance of the Mortgage Loans at the
Cut-off Date.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be.
<PAGE>
IN WITNESS WHEREOF, the Trustee in its capacity as trustee
under the Agreement has caused this Certificate to be duly executed.
Dated: June ___, 1996
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-1][B-2] Certificates referred to in
the within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class [B-1][B-2] Certificate and
hereby authorizes the registration of transfer of such interest to the
above-named assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class [B-1][B-2]
Certificate of a like initial Certificate Principal Balance to the above-named
assignee and deliver such Certificate to the following address:_________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of ____________________________, account number _______________,
or, if mailed by check, to ____________________. Applicable statements should be
mailed to _______________. This information is provided by ____________________,
the assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT B-2
FORM OF CLASS SB CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN (THE "AGREEMENT").
THIS CLASS SB CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
THIS CLASS SB CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE
CLASS B CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$____ OF OID PER $100,000 OF INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE
THAN $___ PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED USING THE EXACT
METHOD. NO REPRESENTATION IS
<PAGE>
-2-
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT RATES BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.]
<PAGE>
-3-
Series 1996-Q6 Aggregate Initial Notional Amount of the
Class SB Certificates: _______
Class SB Initial Notional Amount of this Certificate:
$_______________
Adjustable Pass-Through Rate Initial Pass-Through Rate: ______
Date of Pooling and Servicing
Agreement and Cut-off Date:
June 1, 1996 Issue Date:
June 27, 1996
First Distribution Date:
July 25, 1996
Master Servicer: Trustee:
Temple-Inland Mortgage Bankers Trust Company
Corporation
No. ___ CUSIP: ____
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-Q6, CLASS SB
evidencing a beneficial ownership interest in a trust fund
consisting primarily of a pool of conventional fixed- and
adjustable-rate fully amortizing one- to four-family first
lien residential mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that is the registered owner of the Percentage
Interest specified above in that certain beneficial ownership interest evidenced
by all of the Class SB Certificates in the Trust Fund (as defined herein)
established under a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among DLJ Mortgage Acceptance Corp. (hereinafter called the
"Depositor", which term includes any successor entity under the Agreement),
Temple-Inland Mortgage Corporation (the "Master Servicer") and Bankers Trust
Company (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. The Percentage Interest evidenced hereby is equal
to the initial Notional Amount of this Certificate divided by the aggregate
initial Notional Amount of all of the Class SB Certificates as specified above.
The Certificates of the Series specified above (collectively, the
"Certificates") evidence in the aggregate the entire beneficial ownership
interest in a segregated pool of assets created pursuant to the Agreement
comprised of conventional,
<PAGE>
-4-
fixed- and adjustable-rate, fully amortizing one- to four-family, residential
first lien mortgage loans (the "Mortgage Loans") or interests therein, and
certain other assets as described herein. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The Trustee shall distribute or cause to be distributed on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business (i) with respect to any Distribution Date
other than the First Distribution Date, on the last Business Day of the month
immediately preceding the month of such distribution and (ii) with respect to
the First Distribution Date the Issue Date (with respect to (i) and (ii), the
"Record Date"), from the Available Distribution Amount an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class SB Certificates on such
Distribution Date pursuant to the Agreement. The Notional Amount of the Class SB
Certificates as of any date of determination will be determined pursuant to the
Agreement. The Class SB Certificates have no Certificate Principal Balance.
Reference is hereby made to the further provisions of this Certificate and the
Agreement set forth herein, which further provisions shall for all purposes have
the same effect as though fully set forth at this place.
All distributions will be made or caused to be made by the
Trustee either (i) by check mailed to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register or
(ii) at the request of the Person entitled thereto if such Person shall have so
notified the Trustee in writing by 5 Business Days prior to the applicable
Record Date and such Certificateholder is the registered holder of Certificates
the aggregate Initial Certificate Principal Balance of which is not less than
$2,500,000 (or, with respect to the Class SA Certificates and the Class SB
Certificates, is the registered holder of an aggregate initial Notional Amount
of not less than $10,000,000 of the Class SA Certificates and the Class SB
Certificates), in immediately available funds by wire transfer to the account of
such Person. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Master Servicer of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee.
This Certificate is one of a duly authorized issue of
Certificates of the series and class specified on the face hereof. The
Certificates in the aggregate represent the entire beneficial ownership interest
in: (i) the Mortgage Loans (exclusive of payments of principal and interest due
on or before the Cut-off Date) as from time to time are subject to the Agreement
and all payments under and proceeds of the Mortgage Loans, together with all
documents included in the related Mortgage File; (ii) such funds or assets as
from time to time are deposited in the Custodial Account, the Excess Proceeds
Account or the Certificate Account; (iii) any REO Property; (iv) the Primary
Hazard Insurance Policies, if any, and all other insurance policies with respect
to the Mortgage Loans required to be maintained pursuant to the
<PAGE>
-5-
Agreement; and (v) the Depositor's interest in respect of the representations
and warranties made by the Seller in each Mortgage Loan Purchase Agreement and
the Seller's Warranty Certificate (all of the foregoing being hereinafter
collectively called the "Trust Fund").
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Trustee or any Sub-Servicer
and are not insured or guaranteed by any governmental agency or instrumentality
or by any other person or entity. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
initial Notional Amount will be issued to the designated transferee or
transferees.
No transfer of any Class SB Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In the
event that a transfer is to be made without such registration or qualification,
(a) the Trustee and the Depositor shall require the transferee to execute an
investment letter in substantially the form attached as either Exhibit G-1 or
Exhibit H, as applicable, to the Agreement, which investment letter shall not be
an expense of the Depositor, the Master Servicer or the Trustee and (b) in the
event that such a transfer is not being made pursuant to Rule 144A under the
1933 Act, the Depositor may direct the Trustee to require an Opinion of Counsel
satisfactory to the Depositor and the Trustee that such transfer may be made
without such registration or qualification, which
<PAGE>
-6-
Opinion of Counsel shall not be an expense of the Depositor, the Trustee or the
Master Servicer. Neither the Depositor nor the Trustee is obligated to register
or qualify any of the Certificates under the 1933 Act or any other securities
law or to take any action not otherwise required under the Agreement to permit
the transfer of such Certificates without registration or qualification. Any
such Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Depositor, the Trustee and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of any Class SB Certificate shall be made to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and Keogh plans, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"),
to any Person acting on behalf of a Plan, or to any other person who is using
"plan assets" to effect such acquisition (including any insurance company using
funds in its general or separate accounts that may constitute "plan assets"),
unless the prospective transferee of a Certificateholder desiring to transfer
its Certificates provides to the Trustee or the Certificate Registrar an Opinion
of Counsel (or, in the limited circumstances described in the Agreement, a
certification of facts) which establishes to the satisfaction of the Depositor
and the Trustee or the Certificate Registrar that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended. In the case of
any transfer of the foregoing Certificates to an insurance company, in lieu of
such Opinion of Counsel, the Trustee shall require a certification in the form
of Exhibit G-5 to the Agreement.
The Certificates are issuable in fully registered form only,
without coupons, and in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate initial Notional Amount,
as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any
agent of the Depositor, the Master Servicer or the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the purchase by the
Master Servicer of all Mortgage Loans and each REO Property in respect thereof,
or (ii) the final payment on, or other liquidation (or any advance with respect
thereto) of, the last Mortgage Loan remaining in the Trust Fund (or the
disposition of all REO Property in respect thereof). The Agreement permits, but
does not require, the Master Servicer to
<PAGE>
-7-
purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of the Master Servicer's right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
or equal to 5% of the aggregate Stated Principal Balance of the Mortgage Loans
at the Cut-off Date.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be.
<PAGE>
IN WITNESS WHEREOF, the Trustee in its capacity as trustee
under the Agreement has caused this Certificate to be duly executed.
Dated: June ___, 1996
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class SB Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class SB Certificate and hereby
authorizes the registration of transfer of such interest to the above-named
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class SB Certificate
of a like initial Notional Amount to the above-named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of ____________________________, account number _______________,
or, if mailed by check, to ____________________. Applicable statements should be
mailed to _______________. This information is provided by ____________________,
the assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT B-3
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE HAS BEEN DESIGNATED BY THE DEPOSITOR REFERRED TO BELOW AS A
"RESIDUAL INTEREST" IN THE "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" CREATED BY
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN (THE "AGREEMENT")
PURSUANT TO THE RELATED PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS B
CERTIFICATES AND THE CLASS SB CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED HEREIN AND IN THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR
PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY
INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT
TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES
AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR
THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
THE CLASS R CERTIFICATES WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS IN
RESPECT OF INTEREST OR PRINCIPAL THEREOF UNTIL THE CLASS B CERTIFICATE
TERMINATION DATE, AS DESCRIBED HEREIN AND IN THE AGREEMENT.
THIS CERTIFICATE AND THE AGREEMENT MAY BE AMENDED WITHOUT THE CONSENT OF THE
HOLDER HEREOF, AND IN A MANNER THAT MAY ADVERSELY AFFECT THE INTERESTS OF THE
HOLDER HEREOF, IF NECESSARY TO PREVENT THE DISQUALIFICATION OF THE TRUST FUND AS
A REMIC.
<PAGE>
-2-
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES AN AFFIDAVIT TO THE MASTER SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR THE FEDERAL HOME LOAN MORTGAGE CORPORATION, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) A
RURAL ELECTRIC AND TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381(A)(2)(C) OF
THE CODE OR (E) ANY OTHER PERSON SO DESIGNATED BY THE TRUSTEE BASED ON AN
OPINION OF COUNSEL (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
OR (2) AN AGENT OF A DISQUALIFIED ORGANIZATION. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IF ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE IS MADE TO ANY
OF CERTAIN "PASS-THROUGH ENTITIES" DESCRIBED IN SECTION 860E(E)(6) OF THE CODE,
AND A DISQUALIFIED ORGANIZATION IS THE RECORD HOLDER OF AN INTEREST IN SUCH
ENTITY, THEN A TAX MAY BE IMPOSED ON SUCH ENTITY.
NO TRANSFER OF THE CERTIFICATE MAY BE MADE TO A PERSON THAT IS NOT A UNITED
STATES PERSON (AS DEFINED IN THE AGREEMENT).
<PAGE>
-3-
Series 1996-Q6 Aggregate Initial Certificate Principal
Balance of the Class R Certificates: Class R
$0.00
Adjustable Pass-Through Rate: Initial Certificate Principal Balance of this
Certificate: 0.00%
Date of Pooling and Servicing Issue Date: June 27, 1996
Agreement and Cut-off Date:
June 1, 1996
Master Servicer: First Distribution Date:
Temple-Inland Mortgage July 25, 1996
Corporation
Trustee:
Bankers Trust Company
No. _____ CUSIP:__________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-Q6, CLASS R
evidencing a residual interest with respect to a trust fund
consisting primarily of a pool of conventional fixed- and
adjustable-rate fully amortizing one- to four-family first
lien residential mortgage loans sold by
DLJ MORTGAGE ACCEPTANCE CORP.
This certifies that is the registered owner of the Percentage
Interest evidenced by this Certificate in that certain beneficial ownership
interest evidenced by all of the Class R Certificates in the Trust Fund (as
defined herein) established under a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among DLJ Mortgage Acceptance Corp.
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), Temple-Inland Mortgage Corporation (the "Master Servicer")
and Bankers Trust Company (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. The Certificates of the Series
specified above (collectively, the "Certificates") evidence in the aggregate the
entire beneficial ownership interest in a segregated pool of assets created
pursuant to the Agreement comprised of conventional, fixed- and adjustable-rate,
fully amortizing, one- to four-family, residential first lien mortgage loans
(the "Mortgage Loans"), or interests therein, and certain other assets as
described herein. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
<PAGE>
-4-
The Trustee shall distribute or cause to be distributed on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business (i) with respect to any Distribution Date
other than the First Distribution Date, on the last Business Day of the month
immediately preceding the month of such distribution and (ii) with respect to
the First Distribution Date the Issue Date (with respect to (i) and (ii), the
"Record Date"), from the Available Distribution Amount an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class R Certificates on such
Distribution Date pursuant to the Agreement. Reference is hereby made to the
further provisions of this Certificate and the Agreement set forth herein, which
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
On each Distribution Date preceding the Class B Certificate
Termination Date and, as and to the extent provided in the Agreement, on such
Class B Certificate Termination Date, Accrued Certificate Interest on the Class
R Certificates for such Distribution Date and the Outstanding Class SB Unpaid
Interest Amount will be added to the Certificate Principal Balance of the Class
R Certificates (except to the extent of any concurrent reduction thereof
resulting from the allocation of any Realized Loss thereto).
All distributions will be made or caused to be made by the
Trustee either (i) by check mailed to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register or
(ii) at the request of the Person entitled thereto if such Person shall have so
notified the Trustee in writing by 5 Business Days prior to the applicable
Record Date and such Certificateholder is the registered holder of Certificates
the aggregate Initial Certificate Principal Balance of which is not less than
$2,500,000 (or, with respect to the Class SA Certificates and the Class SB
Certificates, is the registered holder of an aggregate initial Notional Amount
of not less than $10,000,000 of the Class SA Certificates and the Class SB
Certificates), in immediately available funds by wire transfer to the account of
such Person. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Master Servicer of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee. The Certificate Principal Balance
hereof will be reduced to the extent of distributions allocable to principal,
the principal portions of any Realized Losses allocable hereto and distributions
allocable to the Outstanding Class SB Unpaid Interest Amount.
This Certificate is one of a duly authorized issue of
Certificates of the series and class specified on the face hereof. The
Certificates in the aggregate represent the entire beneficial ownership interest
in: (i) the Mortgage Loans (exclusive of payments of principal and interest due
on or before the Cut-off Date) as from time to time are subject to the Agreement
and all payments under and proceeds of the Mortgage Loans, together with all
documents included in the related Mortgage File; (ii) such funds or assets as
from time to time are deposited in the Custodial Account, the Excess Proceeds
Account or the Certificate Account; (iii) any REO Property; (iv) the Primary
Hazard Insurance Policies, if any, and all other insurance policies with respect
to the Mortgage Loans required to be maintained pursuant to the Agreement; and
(v) the Depositor's interest in respect of the representations and warranties
made
<PAGE>
-5-
by the Seller in each Mortgage Loan Purchase Agreement and the Seller's Warranty
Certificate (all of the foregoing being hereinafter collectively called the
"Trust Fund").
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Trustee or any Sub-Servicer
and are not insured or guaranteed by any governmental agency or instrumentality
or by any other person or entity. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account or the Certificate Account may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement to
the Master Servicer of advances made, or certain expenses incurred, by it, by
the Depositor, by the Trustee or by any Sub-Servicer.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of any Class R Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In the
event that a transfer is to be made without such registration or qualification,
(a) the Trustee and the Depositor shall require the transferee to execute an
investment letter in substantially the form attached as either Exhibit G-1 or
Exhibit H to the Agreement, as applicable, which investment letter shall not be
an expense of the Depositor, the Master Servicer or the Trustee and (b) in the
event that such a transfer is not being made pursuant to Rule 144A under the
1933 Act, the Depositor may direct the Trustee to require an Opinion of Counsel
satisfactory to the Depositor and the Trustee that such transfer may be made
without such registration or qualification, which Opinion of Counsel shall not
be an expense of the Depositor, the Trustee or the Master Servicer.
<PAGE>
-6-
Neither the Depositor nor the Trustee is obligated to register or qualify any of
the Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Depositor, the Trustee and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of any Class R this Certificate shall be made to
any employee benefit plan or other retirement arrangement, including individual
retirement accounts and Keogh plans, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"; any of foregoing, a "Plan"),
to any Person acting on behalf of a Plan, or to any other person who is using
"plan assets" to effect such acquisition (including any insurance company using
funds in its general or separate accounts that may constitute "plan assets"),
unless the prospective transferee of a Certificateholder desiring to transfer
its Certificates provides to the Trustee or the Certificate Registrar an Opinion
of Counsel (or, in the limited circumstances described in the Agreement, a
certification of facts) which establishes to the satisfaction of the Depositor
and the Trustee or the Certificate Registrar that such disposition will not
violate the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended. In the case of
any transfer of the foregoing Certificates to an insurance company, in lieu of
such Opinion of Counsel, the Trustee shall require a certification in the form
of Exhibit G-5 to the Agreement.
The Certificates are issuable in fully registered form only,
without coupons, and in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer and the Trustee and any
agent of the Depositor, the Master Servicer or the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the purchase by the
Master Servicer of all Mortgage Loans and each REO Property in respect thereof,
or (ii) the final payment on, or other liquidation (or any advance with respect
thereto) of, the last Mortgage Loan remaining in the Trust Fund (or the
disposition of all REO Property in respect thereof). The Agreement permits, but
does not require, the Master Servicer to purchase from the Trust Fund all
Mortgage Loans and all property acquired in respect of any
<PAGE>
-7-
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of the Master Servicer's right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than or equal
to 5% of the aggregate Stated Principal Balance of the Mortgage Loans at the
Cut-off Date.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be.
<PAGE>
IN WITNESS WHEREOF, the Trustee in its capacity as trustee
under the Agreement has caused this Certificate to be duly executed.
Dated: June ___, 1996
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Social Security or other identifying number of assignee:
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Class R Certificate and hereby
authorizes the registration of transfer of such interest to the above-named
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Class R Certificate of
a like Percentage Interest to the above-named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever, and must be guaranteed by a
commercial bank or trust company on the continental United States or by a firm
or corporation having membership in any national securities exchange or in the
National Association of Securities Dealers, Inc.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of ____________________________, account number _______________,
or, if mailed by check, to ____________________. Applicable statements should be
mailed to _______________. This information is provided by ____________________,
the assignee named above, or ______________________, as its agent.
<PAGE>
EXHIBIT C
FORM OF TRUSTEE INITIAL CERTIFICATION
[Closing Date]
[Master Servicer]
[Depositor]
_______________________
_______________________
Re: Pooling and Servicing Agreement, dated as of June 1,
1996, among DLJ Mortgage Acceptance Corp.,
Temple-Inland Mortgage Corporation and Bankers Trust
Company, DLJ Mortgage Acceptance Corp. Mortgage
Pass-Through Certificates, Series 1996-Q6
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has reviewed
the Mortgage File and the Mortgage Loan Schedule and has determined that: (i)
all documents required to be included in the Mortgage File are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan; and (iii) based on examination by
it, and only as to such documents, the information set forth in items (i) -
(vii), (xi) - (xiii), (xvi) and (xxi) of the definition or description of
"Mortgage Loan Schedule" is correct.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The Trustee
makes no representation that any documents specified in clause (vi) of Section
2.01 should be included in any Mortgage File. The Trustee makes no
representations as to and shall not be responsible to verify: (i) the validity,
legality, sufficiency, enforceability, due authorization, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan, or (iii) the existence of any assumption, modification, written assurance
or substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Trustee.
<PAGE>
-2-
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT D
FORM OF TRUSTEE FINAL CERTIFICATION
[date]
[Master Servicer]
[Depositor]
__________________________
__________________________
Re: Pooling and Servicing Agreement, dated as of June 1,
1996 among DLJ Mortgage Acceptance Corp.,
Temple-Inland Mortgage Corporation and Bankers Trust
Company, DLJ Mortgage Acceptance Corp. Mortgage
Pass-Through Certificates, Series 1996-Q6
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has received
the documents set forth in Section 2.01.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The Trustee
makes no representation that any documents specified in clause (vi) of Section
2.01 should be included in any Mortgage File. The Trustee makes no
representations as to and shall not be responsible to verify: (i) the validity,
legality, sufficiency, enforceability, due authorization, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) the existence of any assumption, modification, written assurance
or substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Trustee.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT E
[RESERVED]
<PAGE>
EXHIBIT F-1
REQUEST FOR RELEASE
(for Trustee)
LOAN INFORMATION
Name of Mortgagor: _____________________________
Master Servicer
Loan No.: _____________________________
TRUSTEE
Name: _____________________________
Address: _____________________________
_____________________________
Trustee
Mortgage File No.: _____________________________
REQUEST FOR REQUESTING DOCUMENTS (check one):
- - ---------------------------------------------
1. Mortgage Loan Liquidated.
(The Master Servicer hereby certifies that all proceeds
of foreclosure, insurance or other liquidation have been
finally received and deposited into the Custodial Account
to the extent required pursuant to the Pooling and
Servicing Agreement.)
2. Mortgage Loan in Foreclosure.
3. Mortgage Loan Repurchased Pursuant to Section 9.01 of the Pooling
and Servicing Agreement.
4. Mortgage Loan Repurchased Pursuant to Article II of the Pooling
and Servicing Agreement.
(The Master Servicer hereby certifies that the repurchase
price has been deposited into the Custodial Account
pursuant to the Pooling and Servicing Agreement.)
5. Other (explain).
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
-2-
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from _____________________________________, as Trustee for the Holders
of Mortgage Pass- Through Certificates, Series 1996-Q6, the documents referred
to below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement, dated as of June 1, 1996 (the "Pooling and Servicing
Agreement"), among DLJ Mortgage Acceptance Corp., Temple-Inland Mortgage
Corporation and the Trustee.
( ) Promissory Note dated _______________, 19__, in the original
principal sum of $__________, made by _____________________,
payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on _____________________ as instrument no.
____________________ in the County Recorder's Office of the County
of _________________, State of __________________ in
book/reel/docket _________________ of official records at
page/image _____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image
______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded
on ___________________ as instrument no. _________ in the County
Recorder's Office of the County of __________, State of
_______________ in book/reel/docket ____________ of official
records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ---------------------------------------------
( ) ---------------------------------------------
( ) ---------------------------------------------
( ) ---------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
<PAGE>
-3-
(1) The Master Servicer shall hold and retain possession
of the Documents in trust for the benefit of the Trustee, solely
for the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly
permit the Documents to become subject to, or encumbered by, any
claim, liens, security interest, charges, writs of attachment or
other impositions nor shall the Master Servicer assert or seek to
assert any claims or rights of setoff to or against the Documents
or any proceeds thereof.
(3) The Master Servicer shall return each and every
Document previously requested from the Mortgage File to the
Trustee when the need therefor no longer exists, unless the
Mortgage Loan relating to the Documents has been liquidated and
the proceeds thereof have been remitted to the Custodial Account
and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Master Servicer shall at all times be earmarked for the account of
the Trustee, and the Master Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the
Master Servicer's possession, custody or control.
Temple-Inland Mortgage Corporation
By:_______________________________
Its:______________________________
Date: _____________________, 19__
<PAGE>
EXHIBIT F-2
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1996-Q6
______________________________________ HEREBY CERTIFIES THAT HE/SHE IS AN
OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH BENEATH HIS/HER
SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN MADE.
LOAN NUMBER: _______________ BORROWER'S NAME:_____________
COUNTY:_____________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE CUSTODIAL ACCOUNT PURSUANT TO SECTION
3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
_________________________________ DATED:______________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT G-1
FORM OF INVESTOR REPRESENTATION LETTER
_________, 19__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1996-Q6
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1996-Q6, Class __
Dear Sirs:
` ____________________ (the "Purchaser") intends to purchase from
____________ (the "Seller") $____________ Initial Certificate Principal Balance
of Mortgage Pass-Through Certificates, Series 1996-Q6, Class __ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 1996 among DLJ Mortgage
Acceptance Corp., as seller (the "Company"), Temple-Inland Mortgage Corporation,
as master servicer, and Bankers Trust Company, as trustee (the "Trustee"). All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Purchaser hereby certifies, represents
and warrants to, and covenants with, the Company and the Trustee that:
1. The Purchaser understands that (a) the
Certificates have not been and will not be registered or
qualified under the Securities Act of 1933, as amended (the
"Act") or any state securities law, (b) the Company is not
required to so register or qualify the Certificates, (c) the
Certificates may be resold only if registered and qualified
pursuant to the provisions of the Act or any state securities
law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing
Agreement contains restrictions regarding the transfer of the
Certificates and (e) the Certificates will bear a legend to
the foregoing effect.
2. The Purchaser is acquiring the Certificates for
its own account for investment only and not with a view to or
for sale in connection with any distribution thereof in any
manner that would violate the Act or any applicable state
securities laws.
<PAGE>
-2-
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such
matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor"
within the meaning of Rule 501(a) promulgated pursuant to the
Act.
4. The Purchaser has been furnished with, and has had
an opportunity to review (a) a copy of the Private Placement
Memorandum dated June 27, 1996 relating to the Certificates,
(b) a copy of the Pooling and Servicing Agreement and (c) such
other information concerning the Certificates, the Mortgage
Loans and the Company as has been requested by the Purchaser
from the Company or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review
answered by the Company or the Seller to the satisfaction of
the Purchaser. If the Purchaser did not purchase the
Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy
of the Private Placement Memorandum (the "Memorandum")
relating to the original sale (the "Original Sale") of the
Certificates by the Company, the Purchaser acknowledges that
such Memorandum was provided to it by the Seller, that the
Memorandum was prepared by the Company solely for use in
connection with the Original Sale and the Company did not
participate in or facilitate in any way the purchase of the
Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and
not to the Company with respect to any damage, liability,
claim or expense arising out of, resulting from or in
connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information,
development or event arising after the date of the Memorandum.
5. The Purchaser has not and will not, nor has it
authorized or will it authorize, any person to (a) offer,
pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate
or any other similar security from any person in any manner,
(c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) make any
general solicitation by means of general advertising or in any
other manner or (e) take any other action, that (as to any of
(a) through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition
of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or
otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing
Agreement.
<PAGE>
-3-
[6. *The Purchaser is not any employee benefit plan
subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the Internal Revenue Code of
1986, (the "Code"), nor a Person acting, directly or
indirectly, on behalf of any such plan, and understands that
registration of transfer of any Certificate to any such
employee benefit plan, or to any person acting on behalf of
such plan, will not be made unless such employee benefit plan
delivers an opinion of its counsel, addressed and satisfactory
to the Trustee, the Company and the Master Servicer, to the
effect that the purchase and holding of a Certificate by or on
behalf of such employee benefit plan would not result in the
assets of the Trust Estate being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of
ERISA or the prohibited transaction provisions of the Code (or
comparable provisions of any subsequent enactments), would not
constitute or result in a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code, and would not
subject the Company, the Master Servicer or the Trustee to any
obligation or liability (including liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in
the Pooling and Servicing Agreement or any other liability.
The Purchaser understands that under current law such an
opinion cannot be rendered.]
Very truly yours,
By:________________________________
Name:______________________________
Title:_____________________________
* In the case of a transfer of the Class SB and Class R Certificates to
an insurance company, the above paragraph 6 shall be deleted and a
certification in the form of Exhibit G-5 shall be executed.
<PAGE>
EXHIBIT G-2
Form of Transferor Representation Letter
__________, 19__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1996-Q6
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1996-Q6, Class __
Dear Sirs:
In connection with the sale by ____________ (the "Seller") to
____________ (the "Purchaser") of $____________ Initial Certificate Principal
Balance of Mortgage Pass-Through Certificates, Series 1996-Q6, Class __ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 1996 among DLJ Mortgage
Acceptance Corp., as seller (the "Company"), Temple-Inland Mortgage Corporation,
as master servicer, and Bankers Trust Company, as trustee (the "Trustee"). The
Seller hereby certifies, represents and warrants to, and covenants with, the
Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act in any manner set forth in the foregoing sentence with
<PAGE>
-2-
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
Very truly yours,
___________________________________
(Seller)
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT G-3
TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
___________________, being first duly sworn, deposes,
represents and warrants:
1. That he is [Title of Officer] of [Name of Owner], a
[savings institution] [corporation] duly organized and existing under the laws
of [the State of ___________] [the United States], (the "Owner"), (record or
beneficial owner of the Class R Certificates on behalf of which he makes this
affidavit and agreement). This Class R Certificate was issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of June 1, 1996 among DLJ Mortgage Acceptance Corp., as depositor, Temple-Inland
Mortgage Corporation, as master servicer (the "Master Servicer"), and Bankers
Trust Company, as trustee (the "Trustee").
2. That the Owner (i) is and will be a "Permitted Transferee"
as of ________, 199__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
Non-United States Person. For this purpose, a "disqualified organization" means
any of the following: (i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for the FHLMC, a majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Internal Revenue
Code of 1986) (the "Code") which is exempt from the tax imposed by Chapter 1 of
the Code (unless such organization is subject to the tax imposed by Section 511
of the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v)
any other Person so designated based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Class R Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
3. That the Owner is aware (i) of the tax that would be
imposed on transfers of the Class R Certificates to disqualified organizations
under the Code that applies to all
<PAGE>
-2-
transfers of the Class R Certificates after March 31, 1988; (ii) that such tax
would be on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified organization
Transferee, on the agent; (iii) that the person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
person an affidavit that the transferee is not a disqualified organization and,
at the time of transfer, such person does not have actual knowledge that the
affidavit is false and; (iv) that the Class R Certificates may be "noneconomic
residual interests" within the meaning of Treasury Regulation Section
1.860E-1(c)(2) and that the transferor of a "noneconomic residual interest" will
remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer is to enable the
transferor to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a
"pass-through entity" holding the Class R Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.
5. That the Owner is aware that the Trustee will not register
the transfer of any Class R Certificates unless the transferee, or the
transferee's agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by Owners that are Permitted Transferees.
7. That the Owner's taxpayer identification number is
__________.
8. That the Owner has reviewed the restrictions set forth on
the face of the Class R Certificates and the provisions of Section 5.02 of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(and, in particular, the Owner is aware that such Section authorizes the Trustee
to deliver payments to a person other than the Owner and negotiate a mandatory
sale by the Trustee in the event that the Owner holds such Certificate in
violation of Section 5.02); and that the Owner expressly agrees to be bound by
and to comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the
Class R Certificates in order to impede the assessment or collection of any tax.
10. That the Owner anticipates that it will, so long as it
holds the Class R Certificates, have sufficient assets to pay any taxes owed by
the holder of such Class R Certificates.
<PAGE>
-3-
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. That the Owner has no present knowledge or expectation
that it will be unable to pay any United States taxes owed by it so long as any
of the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the Person from whom it acquired the Class
R Certificates that the Owner intends to pay taxes associated with holding the
Class R Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class R
Certificates.
13. That the Owner is not acquiring the Class R Certificates
with the intent to transfer the Class R Certificates to any person or entity
that will not have sufficient assets to pay any taxes owed by the holder of such
Class R Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificates were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. That Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding, for so long as the Class
R Certificates remain outstanding and; (iii) is not a "Permitted Transferee".
16. That the Owner is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
<PAGE>
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ____ day of ____________,
____.
[NAME OF OWNER]
By:________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
___________________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to me
that such person executed the same as such person's free act and deed and the
free act and deed of the Owner.
Subscribed and sworn before me this ___ day of _____________,
19__.
___________________________________
NOTARY PUBLIC
COUNTY OF__________________________
STATE OF___________________________
My Commission expires the ____ day
of _______, 19__.
<PAGE>
EXHIBIT G-4
Form of Transferor Certificates
___________________, 19__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1996-Q6
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1996-Q6, Class R
Dear Sirs:
This letter is delivered to you in connection with the sale by
___________________________ (the "Seller") to _____________________________ (the
"Purchaser") of a ___% Percentage Interest in the Mortgage Pass-Through
Certificates, Series 1996-Q6, Class R (the "Certificates"), issued pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 1996, among DLJ Mortgage Acceptance Corp., as
seller (the "Company"), Temple-Inland Mortgage Corporation, as master servicer,
and Bankers Trust Company, as trustee (the "Trustee"). All terms used herein and
not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement. The Seller hereby certifies, represents and warrants to,
and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the sale of the
Certificates by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to
the Trustee and the Master Servicer a transfer affidavit and agreement in the
form attached to the Pooling and Servicing Agreement as Exhibit G-3. The Seller
does not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Seller has determined that the Purchaser has
historically paid its debts as they have become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of the
Certificates may not be respected for
<PAGE>
-2-
United States income tax purposes (and the Seller may continue to be liable for
United States income taxes associated therewith) unless the Seller has conducted
such an investigation.
4. The Seller has no actual knowledge that the proposed
Transferee is a Disqualified Organization, an agent of a Disqualified
Organization or a Non-United States Person.
Very truly yours,
___________________________________
(Seller)
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT G-5
FORM OF INVESTOR REPRESENTATION LETTER FOR INSURANCE COMPANIES
________, 199__
[Depositor]
Bankers Trust Company
Four Albany Street
New York, New York 10020
Attention: DLJ/Quality Series 1996-Q6
Re: DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1996-Q6, Class __
Dear Sirs:
_______________ (the "Purchaser") intends to purchase from
__________ (the "Seller") $____________ Initial Certificate Principal Balance of
Mortgage Pass-Through Certificates, Series 1996-Q6, Class __ (the
"Certificate"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 1996, among DLJ Mortgage
Acceptance Corp., as seller (the "Company"), Temple-Inland Mortgage Corporation,
as master servicer, and Bankers Trust Company, as trustee (the "Trustee"). All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Purchaser hereby certifies, represents
and warrants to, and covenants with, the Company and the Trustee that:
1. The Certificates purchased pursuant hereto will
not be transferred to any employee benefit plan or other
retirement arrangement including individual retirement
accounts and Keogh plans that is subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Internal Revenue Code of 1986
(the "Code") (any of the foregoing, a "Plan").
<PAGE>
-1-
2. The Purchaser is an insurance company and the
source of funds used to purchase the Certificates is an
"insurance company general account" (as such term is defined
in Prohibited Transaction Class Exemption 95-60 issued by the
U.S. Department of Labor ("PTCE 95-60") and there is no plan
with respect to which the amount of such general account's
reserves and liabilities for the contract(s) held by or on
behalf of such Plan and all other plans maintained by the same
employer (or affiliate thereof as defined in PTCE 95-60) or by
the same employee organization, exceed 10% of the total of all
reserves and liabilities of such general account (as such
amounts are determined under PTCE 95-60) as of the date of
acquisition of such Certificates.
Very truly yours,
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT H
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
DLJ Mortgage Acceptance Corp.
Mortgage Pass-Through Certificates
Series 1996-Q6, Class ___, No. ___
The undersigned seller, as registered holder (the
"Transferor"), intends to transfer the Rule 144A Securities described above to
the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Transferor hereby certifies the following facts: Neither the Transferor nor
anyone acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A Securities
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security with, any person in
any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, which would constitute a
distribution of the Rule 144A Securities under the Securities Act of 1933, as
amended (the "1933 Act"), or which would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, and that the Transferor has not offered the Rule 144A
Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with,
the Transferor, the Trustee and the Master Servicer pursuant to Section 5.02 of
the Pooling and Servicing Agreement as follows:
a. The Buyer understands that the Rule 144A
Securities have not been registered under the 1933 Act or the
securities laws of any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Transferor, the Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest
<PAGE>
-2-
in the Rule 144A Securities or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached
or negotiated with respect to the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security with, any person
in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the
1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to
the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the account of other qualified
institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with,
the Transferor, the Servicer and the Depositor that either (1) the Buyer is not
an employee benefit plan within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("Plan"), or a plan
within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
(the "Code") (also a "Plan"), and the Buyer is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan, or (2) the Buyer's
purchase of the Rule 144A Securities will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
4. This document may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
____________________________________ ___________________________________
Print Name of Transferor Print Name of Buyer
By:_________________________________ By:________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No._________________________ No.________________________________
Date:_______________________ Date:______________________________
<PAGE>
ANNEX 1 TO EXHIBIT H
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $______________________1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statement, a copy of which is attached hereto.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
______________
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
<PAGE>
-2-
___ INSURANCE COMPANY. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the District of
Columbia.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
___ INVESTMENT ADVISER. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions,
or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, but is not a trust fund
that includes as participants individual retirement accounts or
H.R.
10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another
<PAGE>
-3-
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule 144A.
In addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
___________________________________
Print Name of Buyer
By:________________________________
Name:
Title:
Date:______________________________
<PAGE>
ANNEX 2 TO EXHIBIT H
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each
of the parties to which this certification is made are relying and will continue
to rely on the statements made
<PAGE>
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herein because one or more sales to the Buyer will be in reliance on Rule 144A.
In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
___________________________________
Print Name of Buyer
By:________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Buyer
Date:______________________________
<PAGE>
EXHIBIT I
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT J
SELLER REPRESENTATIONS AND WARRANTIES
Seller's Representations Assigned by Depositor to Trustee
Representations and Warranties. Pursuant to the Mortgage Loan
Purchase Agreement, the Seller has made certain representations and warranties
to the Depositor. The Seller shall confirm such representations and warranties
and shall deliver a Seller's Warranty Certificate and an Officers' Certificate
on the Closing Date (i) reaffirming such representations and warranties and (ii)
specifically restating and reaffirming the following representations and
warranties as of such date. The following representations are, pursuant to the
Pooling and Servicing Agreement, assigned by the Depositor to the Trustee for
the benefit of the Certificateholders, together with the related repurchase
rights specified in the Mortgage Loan Purchase Agreement. Pursuant to the
Mortgage Loan Purchase Agreement, the Seller's Warranty Certificate and related
Officer's Certificate, the Seller affirms each such representation and warranty
and agrees, consents to and acknowledges the assignment thereof to the Trustee.
All capitalized terms herein shall have the meanings assigned in the Pooling and
Servicing Agreement and the Seller's Warranty Certificate, as applicable.
The Seller hereby represents and warrants to the Depositor and
Trustee, as to each Mortgage Loan, that as of the Closing Date or as of such
other date specifically provided herein:
(i) The information set forth in the related Mortgage Loan
Schedule with respect to each Mortgage Loan is true and correct in all material
respects as of the Closing Date;
(ii) All information provided in the section entitled
"Description of the Mortgage Pool" of the Prospectus Supplement for the DLJ
Mortgage Acceptance Corp. Mortgage Pass-Through Certificates, Series 1996-Q6,
dated June 24, 1996 is true and correct in all material respects.
(iii) No Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 90.35% and no Mortgage Loan had a combined
Loan-to-Value Ratio at origination, including any second deed of trust
subordinated to the lien of the Mortgage, in excess of 90.35%;
(iv) As of the Closing Date, no Mortgage Loan is ninety (90)
or more days delinquent in payment of principal or interest;
(v) Each Mortgage Note is directly secured by the Mortgage,
and each Mortgaged Property consists of a single parcel of real estate. Each
Mortgage secures the outstanding principal balance of the Mortgage Note and is a
valid and enforceable first lien on the Mortgaged Property subject only to (1)
the lien of nondelinquent current real property taxes and assessments, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal made in connection with the
origination of the related Mortgage Loan, and (3) other matters to which like
properties are commonly subject that do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
<PAGE>
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(vi) Immediately prior to the delivery of the Mortgage Loan to
DLJMCI, the Seller had good title to, and was the sole owner of, such Mortgage
Loan free and clear of any mortgage, pledge, lien, security interest, charge or
other encumbrance (other than any junior lien on the Mortgaged Property
encumbered by the related Mortgage) and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell and
assign the Mortgage Loan pursuant to the related Purchase Agreement;
(vii) There was no delinquent tax or assessment lien against
any Mortgaged Property at the time of the origination of the related Mortgage
Loan;
(viii) There is no valid offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor to pay
the unpaid principal of or interest on such Mortgage Note, and any applicable
right of rescission has expired as of the Closing Date, except that holdback
mortgage loan proceeds have been withheld from the mortgagor with respect to
certain of the Mortgage Loans (as indicated on Exhibit 3 hereto) pending
completion of improvements;
(ix) There are no mechanics' liens or claims for work, labor
or material affecting any Mortgaged Property that are or may be a lien prior to,
or equal with, the lien of such Mortgage, except those that are insured against
by the title insurance policy referred to in clause (xii) below;
(x) Each Mortgaged Property is free of material damage and is
in at least adequate repair or an escrow of funds has been established in an
amount sufficient to repair such damage and upon release of such funds, such
Mortgage Property will be free of material damage and will be in at least
adequate repair;
(xi) Each Mortgage Loan at origination complied in all
material respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and consummation of the transactions
contemplated hereby will not involve the violation of any such laws;
(xii) At the Closing Date, neither the Seller nor any prior
holder of any Mortgage has, except as the Mortgage File may reflect, (1)
modified the Mortgage in any material respect, (2) satisfied, canceled or
subordinated such Mortgage in whole or in part, (3) released the related
Mortgaged Property in whole or in part from the lien of such Mortgage or (4)
executed any instrument of release, cancellation, modification or satisfaction
with respect thereto;
(xiii) A lender's policy of title insurance or a commitment
(binder) to issue the same was effective on the date of the origination of each
Mortgage Loan, each such policy is valid and remains in full force and effect
and each such policy was issued by a title insurer acceptable to FNMA or FHLMC
and in a form acceptable to FNMA or FHLMC;
<PAGE>
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(xiv) Each Mortgage Loan was originated or acquired (1) by the
Seller either directly or indirectly through loan brokers or a correspondent
lender specifically approved by the Seller, such that (a) the Mortgage Loan was
originated in conformity with the Seller's underwriting guidelines, (b) DLJMCI
approved the Mortgage Loan either prior to the funding thereof or, in the case
of a Mortgage Loan originated pursuant to the Seller's delegated underwriting
guidelines, approved the Mortgage Loan after the funding thereof and (c) the
Seller funded the Mortgage Loan on the date of origination thereof with its own
funds or with funds obtained by it or, in the case of a Mortgage Loan originated
by a correspondent lender approved by the Seller and DLJMCI, the Mortgage Loan
was approved by the Seller prior to origination and was purchased by the Seller
from such correspondent lender pursuant to a mandatory purchase commitment in
effect at origination, (2) by a savings and loan association, savings bank,
commercial bank, credit union, insurance company or similar institution that is
supervised and examined by a federal or state authority or (3) by a mortgagee
approved by the Secretary of HUD pursuant to Sections 203 and 211 of the
National Housing Act, as amended;
(xv) The Mortgage Rate on each Adjustable Rate Mortgage Loan
will be subject to adjustment commencing approximately six months after its date
of origination or at the end of the initial fixed interest rate period following
its respective date of origination, as applicable, and semi-annually thereafter,
and each such Adjustable Rate Mortgage Loan has an original term to maturity
from the date on which the first monthly payment is due of not less than
approximately 15 years and not more than approximately 30 years. On each
adjustment date, the Mortgage Rate will be adjusted to equal the Index plus the
Gross Margin, rounded to the nearest 0.125%, subject to the Periodic Rate Cap,
the Maximum Rate and the Minimum Rate. The related Mortgage Note is payable on
the first day of each month in self-amortizing monthly installments of principal
and interest, with interest payable in arrears, and requires a Monthly Payment
which is sufficient (a) to fully amortize the outstanding principal balance of
the Adjustable Rate Mortgage Loan over its remaining term and to pay interest at
the applicable Mortgage Rate, and (b) during the period following each
adjustment date, to fully amortize the original principal balance as of the
first day of such period over the then remaining term of such Mortgage Loan and
to pay interest at the applicable Mortgage Rate. Interest on each Adjustable
Rate Mortgage Loan is calculated on the basis of a 360-day year consisting of
twelve 30-day months;
(xvi) The amount of the Monthly Payment on each Graduated
Payment Adjustable Mortgage Loan will adjust on each Payment Adjustment Date to
an amount which will amortize fully the outstanding principal balance of the
Graduated Payment Adjustable Mortgage Loan over its remaining term, and pay
interest at the Mortgage Rate as adjusted on the immediately preceding Rate
Adjustment Date; subject to a Payment Cap that limits any increase in the amount
of the Monthly Payment on any Payment Adjustment Date to an amount not greater
than 7.5% of the amount of the Monthly Payment due on the immediately preceding
Due Date. With respect to each Graduated Payment Adjustable Mortgage Loan, the
Payment Cap shall not be in effect on the fifth Payment Adjustment Date and each
five year anniversary thereof. If the outstanding principal balance of the
Graduated Payment Adjustable Mortgage Loan equals 110% of the original principal
balance thereof, the amount of the Monthly Payment will be adjusted on the
immediately succeeding Due Date and on the Due Date succeeding each
<PAGE>
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Rate Adjustment Date thereafter, without regard to the Payment Cap, to an amount
which will fully amortize the outstanding principal balance of such Mortgage
Loan over its remaining term at the then applicable Mortgage Rate;
(xvii) The Mortgage Rate on each Two-Step Mortgage Loan is
fixed for an initial period of approximately one year after the date of
origination, and resets twice, approximately one year and approximately two
years after its date of origination, to equal, commencing approximately one year
after its date of origination, the initial Mortgage Rate thereon plus 1.25% and,
commencing approximately two years after its date of origination, the initial
Mortgage Rate thereon plus 3.00%, and each such Two-Step Mortgage Loan has an
original term to maturity from the date on which the first monthly payment is
due of not more than approximately 30 years. The related Mortgage Note is
payable on the first day of each month in self-amortizing monthly installments
of principal and interest, with interest payable in arrears, and requires a
monthly payment which is sufficient (a) during the period prior to the first
resetting of the Mortgage Rate, to fully amortize the outstanding principal
balance of the Two-Step Mortgage Loan over its remaining term and to pay
interest at the applicable Mortgage Rate, and (b) during the period following
each resetting of the Mortgage Rate, to fully amortize the original principal
balance as of the first day of such period over the then remaining term of such
Two-Step Mortgage Loan and to pay interest at the applicable Mortgage Rate.
Interest on each Two-Step Mortgage Loan is calculated on the basis of a 360-day
year consisting of twelve 30-day months;
(xviii) The Mortgage Rate on each Fixed Rate Mortgage Loan is
fixed, and each Fixed Rate Mortgage Loan has an original term to maturity from
the date on which the first monthly payment is due of not less than
approximately 15 years and not more than approximately 30 years. The related
Mortgage Note is payable on the first day of each month in self-amortizing
monthly installments of principal and interest, with interest payable in
arrears, and requires a monthly payment which is sufficient to fully amortize
the outstanding principal balance of the Fixed Rate Mortgage Loan over its
remaining term and to pay interest at the applicable Mortgage Rate. Interest on
each Fixed Rate Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months;
(xix) All of the improvements that were included for the
purpose of determining the appraised value of the Mortgaged Property are insured
to lie wholly within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon the
Mortgaged Property, unless, in either case, an agreement permitting such
encroachment is recorded in the applicable real property records and such
agreement was taken into account in conducting the appraisal of the Mortgaged
Property;
(xx) No improvement considered in determining the related
appraised value located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation. All inspections, licenses
and certificates required to be made or issued with respect to the use and
occupancy of the Mortgaged Property, including but not limited to certificates
of occupancy and fire underwriting certificates, have been made or obtained from
<PAGE>
-5-
the appropriate authorities and the Mortgaged Property is lawfully occupied
under applicable law;
(xxi) All parties that have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are, or, during the period
in which they held and disposed of such interest, were (1) in compliance with
any and all applicable licensing requirements of the laws of the state wherein
the Mortgaged Property is located, and (2)(a) organized under the laws of such
state, (b) qualified to do business in such state, (c) federal savings
associations or national banks having principal offices in such state or (d) not
doing business in such state;
(xxii) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms. All parties to the Mortgage Note and
the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage
and each Mortgage Note and Mortgage has been duly and properly executed and
delivered by such parties;
(xxiii) The proceeds of the Mortgage Loan have been fully
disbursed by the Seller (other than the Mortgage Loans identified by loan number
on Exhibit 3 hereto, which proceeds of such Mortgage Loans will be fully
disbursed by the Seller within 90 days from the date hereof), there is no
requirement for future advances thereunder and any and all requirements as to
completion of any on-site or off-site improvements and as to disbursements of
any escrow funds therefor (including any escrow funds held to make monthly
payments pending completion of such improvements) have been complied with. All
costs, fees and expenses incurred in making, closing or recording the Mortgage
Loans were paid;
(xxiv) The related Mortgage contains customary and enforceable
provisions that render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including (1) in the case of a Mortgage designated as a deed of trust,
by trustee's sale, and (2) otherwise by judicial foreclosure. There is no
homestead or other exemption available to the Mortgagor that would interfere
with the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage;
(xxv) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage, and
no fees or expenses are or will become payable by the holder of the Mortgage
Loan to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor;
(xxvi) Each Mortgaged Property is suitable for year-round
occupancy;
(xxvii) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary arrangements
for repayment thereof have not been made, and no escrow deposits or payments of
other charges or payments due with
<PAGE>
-6-
respect to the Mortgage Loan (other than origination points and fees) have been
capitalized under the Mortgage or the related Mortgage Note;
(xxviii) The origination practices used by the Seller with
respect to each Mortgage Loan have been in all respects legal, proper, prudent
and customary in the mortgage origination business;
(xxix) There is no pledged account or other security other
than real estate securing the Mortgagor's obligations;
(xxx) No Mortgage Loan has a shared appreciation feature or
other contingent interest feature;
(xxxi) No Mortgage Loan is subject to any temporary buydown
provisions;
(xxxii) Pursuant to the terms of the related Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located pursuant to insurance policies conforming to the requirements of
Section 3.13 of the Pooling and Servicing Agreement. If the Mortgaged Property
is in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance has
been made available), a flood insurance policy is in effect which policy
conforms to the requirements of the Pooling and Servicing Agreements;
(xxxiii) An appraisal of each Mortgaged Property is on a form
approved by FNMA or FHLMC with such riders as have been approved by FNMA or
FHLMC, as the case may be, and each appraiser meets the minimum qualifications
of FNMA or FHLMC for appraisers;
(xxxiv) The Seller has not provided financing on any Mortgaged
Property that is subordinate to the lien of the related Mortgage Loan;
(xxxv) Each Mortgage Loan contains a customary "due-on-sale"
clause;
(xxxvi) With respect to each Mortgage Loan in which the
Mortgagor has a leasehold interest in the related Mortgaged Property:
(a) The leasehold was created by direct
lease of the freehold estate, and the ground lease or
memorandum thereof has been recorded and by its terms
permits the leasehold estate to be mortgaged. The
ground lease grants any leasehold mortgagee standard
protection necessary to protect the security of a
leasehold mortgagee, including the right of a
leasehold mortgagee to receive notice of the lessee's
default under the ground lease; the right of the
leasehold mortgagee, with adequate time, to
<PAGE>
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cure such default; and, in the case of incurable
defaults of the lessee, the right of the leasehold
mortgagee to enter into a new ground lease with the
lessor on terms financially identical and otherwise
substantially identical to the existing ground lease;
(b) The ground lease was at the origination
of the Mortgage Loan, and is, in full force and
effect without any outstanding defaults, and was and
is not subject to liens and encumbrances;
(c) The ground lease shall be automatically
renewable for at least thirty (30) years or at least
ten (10) years beyond the scheduled date for the
final payment on the Mortgage Loan; and
(d) The fee estate of the lessor under the
ground lease is encumbered by the ground lease, and
any lien of any present or future fee mortgagee is
and will be subject to and subordinate to the ground
lease. The foreclosure of the fee mortgage will not
terminate the leasehold estate or the rights of the
sub-tenants, and the fee mortgage is subject to the
ground lease;
(xxxvii) Except for the criteria for eligible Mortgagors set
forth in the Seller's underwriting guidelines, the Seller knows of nothing
involving any Mortgage File, Mortgaged Property or Mortgagor's credit standing
that could reasonably be expected (1) to cause private institutional investors
to regard the Mortgage Loan as an unacceptable investment, (2) to cause the
Mortgage Loan to become delinquent or (3) to affect adversely the value or
marketability of the Mortgage Loan;
(xxxviii) There are no condemnation proceedings pending with
respect to any Mortgaged Property, and no Mortgaged Property had been condemned
either in whole or in part;
(xxxix) The Mortgage Loans were not selected for inclusion
under the Purchase Agreements from the Seller's portfolio of mortgage loans
originated under its "regular lending program" and "equity lending program" on
any basis which would have a material adverse effect on the holders of the
Certificates;
(xl) All of the Mortgage Loans were originated or acquired
under either the Seller's "regular lending program" and "equity lending
program"; and
(xli) The collection practices used by the Seller with respect
to each Mortgage Note and Mortgage serviced by the Seller have been in all
material respects legal, proper, prudent and customary in the mortgage
origination and servicing industry; and the Mortgage Loans have been serviced by
the Seller in accordance with the terms of the Mortgage Loan documents, any
applicable mortgage insurance contract requirements and applicable law in all
material respects.
<PAGE>
EXHIBIT K
Form of Notice Under Section 3.24
________, 1996
[Trustee]
Re: MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-Q6
--------------------------------------------------
Pursuant to Section 3.24 of the Pooling and Servicing Agreement, dated
as of June 1, 1996, relating to the Certificates referenced above, the
undersigned does hereby notify you that:
(a) The prepayment assumption used in pricing the Certificates was a
Constant Prepayment Rate ("CPR") of __% per annum.
(b) With respect to each Class of the captioned Certificates, set forth
below is (i), the first price, as a percentage of the Certificate Principal
Balance of each Class of Certificates, at which 10% of the aggregate Certificate
Principal Balance of each such Class of Certificates was first sold at a single
price, if applicable, or (ii) if more than 10% of a Class of Certificates have
been sold but no single price is paid for at least 10% of the aggregate
Certificate Principal Balance of such Class of Certificates, then the weighted
average price at which the Certificates of such Class were sold expressed as a
percentage of the Certificate Principal Balance of such Class of Certificates,
(iii) if less than 10% of the aggregate Certificate Principal Balance of a Class
of Certificates has been sold, the purchase price for each such Class of
Certificates paid by Donaldson, Lufkin & Jenrette Securities Corporation (the
"Underwriter") expressed as a percentage of the Certificate Principal Balance of
such Class of Certificates calculated by: (1) estimating the fair market value
of each such Class of Certificates as of June ___, 1996; (2) adding such
estimated fair market value to the aggregate purchase prices of each Class of
Certificates described in clause (i) or (ii) above; (3) dividing each of the
fair market values determined in clause (1) by the sum obtained in clause (2);
(4) multiplying the quotient obtained for each Class of Certificates in clause
(3) by the purchase price paid by the Underwriter for all the Certificates
purchased by it; and (5) for each Class of Certificates, dividing the product
obtained from such Class of Certificates in clause (4) by the initial Principal
Balance of such
<PAGE>
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Class of Certificates or (iv) the fair market value (but not less than zero) as
of the Closing Date of each Certificate of each Class of Certificates retained
by the Depositor or an affiliate corporation, or delivered to the seller:
Class SA: ________________
Class A-1: ________________
Class A-2: ________________
Class B-1: ________________
Class B-2: ________________
Class SB: ________________
Class R: ________________
The prices and values set forth above do not include accrued interest
with respect to periods before the closing.
DLJ MORTGAGE ACCEPTANCE CORP.
By:________________________________
Name:
Title:
