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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)
November 21, 1996
Access Financial Lending Corp.
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(Exact name of registrant as specified in its charter)
Delaware 333-07837 41-1768416
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
400 Highway 169 South
Suite 400
St. Louis Park, Minnesota 55426
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (612) 542-6500
No Change
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
Description of the Certificates and the Mortgage Loans
Access Financial Lending Corp. (the "Registrant") registered
issuances of up to $1,500,000,000 principal amount of Mortgage Loan Pass-Through
Certificates on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Act"), by a Registration Statement on
Form S-3 (Registration File No. 333-07837) (as amended, the "Registration
Statement"). Pursuant to the Registration Statement, Access Financial Mortgage
Loan Trust 1996-4 (the "Trust") issued $239,765,000 in aggregate principal
amount of its Mortgage Loan Pass-Through Certificates, Series 1996-4 (the
"Certificates"), on November 21, 1996. This Current Report on Form 8-K is being
filed to satisfy an undertaking to file copies of certain agreements executed in
connection with the issuance of the Certificates, the forms of which were filed
as Exhibits to the Registration Statement.
The Certificates were issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") attached hereto as Exhibit
4.2, dated as of November 1, 1996, among Access Financial Lending Corp., as
seller (the "Seller") and master servicer (the "Master Servicer"), Access
Financial Receivables Corp. (the "Depositor") and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Certificates consist of four classes of fixed rate
certificates, the Class A-2 Group I Certificates, the Class A- 3 Group I
Certificates, the Class A-4 Group I Certificates, the Class A-5 Group I
Certificates and three classes of variable rate certificates, the Class A-1
Group I Certificates, the Class A-6 Group II Certificates, and the Class A-7
Group III Certificates (collectively, the "Class A Certificates"). In addition
to the Class A Certificates, the Trust will also issue a subordinate Class of
Certificates (the "Class B Certificates") and one or more Classes of Residual
Certificates. Only the Class A Certificates were issued pursuant to the
Registration Statement. The Certificates initially evidence, in the aggregate,
100% of the undivided beneficial ownership interests in the Trust.
The assets of the Trust consist primarily of a pool of fixed-rate,
amortizing mortgage loans and adjustable rate amortizing mortgage loans which
are secured by first or second liens on residential properties (the "Mortgage
Loans").
Interest distributions on the Class A Certificates are based on the
Certificate Principal Balance thereof and the then applicable Pass-Through Rate
thereof. The Pass-Through Rate for the Class A-1 Group I Certificates will be
equal to the lesser of (i) the London interbank offered rate for one-month
United States dollar deposits ("LIBOR") plus 0.110% per annum or (ii) the
weighted average net coupon rate for the fixed rate mortgage loans as of the
payment date. The Pass-Through Rate for the Class A-2 Group I Certificates, the
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Class A-3 Group I Certificates and the Class A-4 Group I Certificates will be
6.250%, 6.450% and 6.775% per annum, respectively. The Pass-Through Rate for the
Class A-5 Group I Certificates will be the lesser of (i) 7.150%, provided
however that if the Trustee has not solicited bids for the purchase of the
Mortgage Loans by the 90th day following the first payment date on which the
aggregate principal balance of the Mortgage Loans has declined to 10% or less of
the original aggregate principal balance of the Mortgage Loans, 7.650% or (ii)
the weighted average net coupon rate for the fixed rate mortgage loans as of the
payment date. The Pass-Through Rate for the Class A-6 Group II Certificates will
be equal to the lesser of (i) LIBOR plus 0.285% per annum and (ii) the weighted
average net coupon rate of the adjustable rate mortgage loans. The Pass-Through
Rate for the Class A-7 Group III Certificates will be equal to the lesser of (i)
LIBOR plus 0.275% per annum and (ii) the weighted average net coupon rate of the
adjustable rate mortgage loans.
The Class A-1 Group I Certificates have an aggregate principal
amount of $32,500,000, the Class A-2 Group I Certificates have an aggregate
principal amount of $10,696,000, the Class A-3 Group I Certificates have an
aggregate principal amount of $17,700,000, the Class A-4 Group I Certificates
have an aggregate principal amount of $18,500,000, the Class A-5 Group I
Certificates have an aggregate principal amount of $15,017,000, the Class A-6
Group II Certificates have an aggregate principal amount of $98,304,000 and the
Class A-7 Group III Certificates have an aggregate principal amount of
$49,048,000.
The Class B Certificates represent a beneficial ownership interest
in a portion of the interest payments on the Mortgage Loans. Distributions on
the Class B Certificates are calculated as described in the Pooling and
Servicing Agreement.
As of the Closing Date, the Mortgage Loans possessed the
characteristics described in the Prospectus dated November 7, 1996 and the
Prospectus Supplement dated November 18, 1996, filed pursuant to Rule 424(b)(2)
of the Act on November 21, 1996.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits:
1.1 Underwriting Agreement, dated November 14, 1996, among Access
Financial Lending Corp., Prudential Securities Incorporated and J.P. Morgan
Securities Inc.
4.1 Purchase and Sale Agreement, dated as of November 1, 1996
between Access Financial Lending Corp. and Access Financial Receivables Corp.
4.2 Pooling and Servicing Agreement, dated as of November 1, 1996,
among Access Financial Lending Corp., as seller and master servicer, Access
Financial Receivables Corp., as transferor, and The Chase Manhattan Bank, as
trustee.
10.1 Indemnification Agreement, dated as of November 1, 1996, among
Access Financial Lending Corp., Access Financial Receivables Corp., Financial
Security Assurance Inc., Prudential Securities Incorporated and J.P. Morgan
Securities Inc.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly authorized.
ACCESS FINANCIAL LENDING CORP.
as Registrant and on behalf of ACCESS
FINANCIAL MORTGAGE LOAN TRUST 1996-4
By:/s/ Leslie Zejdlik Foster
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Name: Leslie Zejdlik Foster
Title: President
Dated: December 6, 1996
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EXHIBIT INDEX
Exhibit No. Description
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1.1 Underwriting Agreement, dated November 14, 1996, among Access
Financial Lending Corp., Prudential Securities Incorporated and J.P.
Morgan Securities Inc.
4.1 Purchase and Sale Agreement, dated as of November 1, 1996 between
Access Financial Lending Corp. and Access Financial Receivables
Corp.
4.2 Pooling and Servicing Agreement, dated as of November 1, 1996, among
Access Financial Lending Corp., as seller and master servicer,
Access Financial Receivables Corp., as transferor, and The Chase
Manhattan Bank, as trustee.
10.1 Indemnification Agreement, dated as of November 1, 1996, among
Access Financial Lending Corp., Access Financial Receivables Corp.,
Financial Security Assurance Inc., Prudential Securities
Incorporated and J.P. Morgan Securities Inc.
EXHIBIT 1.1
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EXECUTION COPY
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
$32,500,000 Class A-1 Group I Certificates, Variable Pass-Through Rate
$10,696,000 Class A-2 Group I Certificates, 6.250% Pass-Through Rate
$17,700,000 Class A-3 Group I Certificates, 6.450% Pass-Through Rate
$18,500,000 Class A-4 Group I Certificates, 6.775% Pass-Through Rate
$15,017,000 Class A-5 Group I Certificates, 7.150% Pass-Through Rate
$96,304,000 Class A-6 Group II Certificates, Variable Pass-Through Rate
$49,048,000 Class A-7 Group III Certificates, Variable Pass-Through Rate
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
J.P. MORGAN SECURITIES INC.
November 14, 1996
Dear Sirs:
Access Financial Lending Corp., a corporation organized and existing
under the laws of Delaware (the "Company"), agrees with you (the "Underwriters")
as follows:
Section 1. Issuance and Sale of Certificates. The Company has
authorized the issuance and sale of Mortgage Loan Pass-Through Certificates,
Series 1996-4, Class A-1 Group I Certificates in an aggregate principal amount
of $32,500,000, Class A-2 Group I Certificates in an aggregate principal amount
of $10,696,000, Class A-3 Group I Certificates in an aggregate principal amount
of $17,700,000, Class A-4 Group I Certificates in an aggregate principal amount
of $18,500,000, Class A-5 Group I Certificates in an aggregate principal amount
of $15,017,000, Class A-6 Group II Certificates in an aggregate principal amount
of $96,304,000 and Class A-7 Group III Certificates in an aggregate principal
amount of $49,048,000 (collectively, the "Offered Certificates"). The Offered
Certificates, Class B Certificates and the Residual Certificates (the Class B
Certificates and the Residual Certificates, collectively, the "Non-Offered
Certificates") (the Non-Offered Certificates and the Offered Certificates,
collectively, the "Certificates"), are to be issued by Access Financial Mortgage
Loan Trust 1996-4 (the "Trust") pursuant to a Pooling and Servicing Agreement,
to be dated as of November 1, 1996 (the "Pooling and Servicing Agreement"),
among the Company, Access Financial Lending Corp., as master servicer (the
"Master Servicer"), Access Financial Receivables Corp., as the transferor (the
"Transferor") and The Chase Manhattan Bank, a New York banking corporation, as
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trustee (the "Trustee"). The Non-Offered Certificates are not to be sold
hereunder. The Certificates evidence all of the beneficial ownership interests
in the assets of the Trust consisting primarily of a pool of amortizing mortgage
loans which are secured by first or second liens on residential properties (the
"Mortgage Loans").
The Company will transfer all the Mortgage Loans to the Transferor
pursuant to a Purchase and Sale Agreement dated as of November 1, 1996 (the
"Purchase Agreement") between the Company and the Transferor.
The Offered Certificates will have the benefit of a certificate
insurance policy (the "Certificate Insurance Policy") issued by Financial
Security Assurance, Inc., a monoline insurance company organized under the laws
of New York (the "Certificate Insurer").
In connection with the issuance of the Certificate Insurance Policy,
(i) the Company and the Certificate Insurer will execute and deliver an
Insurance and Indemnity Agreement dated as of November 1, 1996 (the "Insurance
Agreement") and (ii) the Company, the Transferor, the Underwriters and the
Certificate Insurer will execute and deliver an Indemnification Agreement dated
as of November 14, 1996 (the "Indemnification Agreement").
As used herein, the term "Company Agreements" means the Pooling and
Servicing Agreement, the Sale Agreement, the Insurance Agreement, the
Indemnification Agreement, any Sub-Servicing Agreements and this Agreement.
As used herein, the term "Transferor Agreements" means the Pooling
and Servicing Agreement, the Sale Agreement and the Indemnification Agreement.
An election will be made to treat certain of the assets and Accounts
of the Trust as "real estate mortgage investment conduits" ("REMICs") as such
term is defined in the Internal Revenue Code of 1986, as it may be amended from
time to time (the "Code"). The Offered Certificates and the Class B Certificates
will be designated as "regular interests" in a REMIC, and the Residual
Certificates will be designated as "residual interests" in a REMIC.
The offering of the Offered Certificates will be made by you, and
the Company understands that you propose to make a public offering of the
Offered Certificates for settlement on November 21, 1996, as you deem advisable.
Defined terms used herein shall have their respective meanings as
set forth in the Pooling and Servicing Agreement.
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Section 2. Representations and Warranties. A. The Company represents
and warrants to, and agrees with each of the Underwriters, that:
(i) A Registration Statement on Form S-3 (No. 333-07837) has (a)
been prepared by the Company on such Form in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder, (b) been filed with the
Commission and (c) been declared effective by the Commission, and no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceeding for that purpose has been initiated or threatened, by the
Commission. Copies of such Registration Statement have been delivered by the
Company to the Underwriters. There are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement other than such documents or materials, if any, as
the Underwriters deliver to the Company pursuant to Section 9D hereof for filing
on Form 8-K. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the date on and time
at which the Registration Statement became effective, or the date on and the
time at which the most recent post-effective amendment to such Registration
Statement, if any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement referred to in the
preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Certificates. The term "Base Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus Supplement " means
the prospectus supplement dated the date hereof and specifically relating to the
Offered Certificates (the "Prospectus Supplement"), as first filed with the
Commission pursuant to Rule 424 of the Rules and Regulations. The term "Company
Offering Materials" means, collectively, the Registration Statement, the Base
Prospectus and the Prospectus Supplement except for the Underwriter Information.
The term "Underwriter Information" means the information set forth under the
caption "Underwriting" in the Prospectus Supplement and any information in the
Prospectus Supplement relating to any potential market-making, over-allotment or
price stabilization activities of the Underwriters. The term "Prospectus" means,
together, the Base Prospectus and the Prospectus Supplement.
(ii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
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Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Company Offering Materials do not and
will not, as of the Effective Date or filing date thereof and of any amendment
thereto, as appropriate, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) The documents incorporated by reference in the Company
Offering Materials, when they were filed with the Commission conformed in all
material respects to the requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the
Rules and Regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; any further documents so filed and incorporated by reference in
the Company Offering Materials, when such documents are filed with the
Commission will conform in all material respects to the requirements of the
Exchange Act and the Rules and Regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation is made as to documents deemed
to be Derived Information except to the extent such documents reflect Company -
Provided Information.
(iv) Since the respective dates as of which information is given in
the Company Offering Materials, or the Company Offering Materials as amended and
supplemented, (x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Company and (y) the Company has not entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Company
that, in either case, would reasonably be expected to materially adversely
affect the interests of the holders of the Offered Certificates, otherwise than
as set forth or contemplated in the Company Offering Materials, as so amended or
supplemented.
(v) The Company is not aware of (x) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus or for
any additional information, (y) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (z) any notification with
respect to the suspension of the qualification of the Offered Certificates for
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the sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business or financial condition of the Company and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Company Agreement and to cause the Certificates to be issued.
(vii) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal to
which the Company is a party or of which any of its properties is the subject
(i) which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the business or financial condition
of the Company, (ii) asserting the invalidity of any Company Agreement, in whole
or in part or the Certificates, (iii) seeking to prevent the issuance of the
Certificates or the consummation by the Company of any of the transactions
contemplated by any Company Agreement, in whole or in part, or (iv) which if
determined adversely it is likely to materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, any Company Agreement, in whole or in part or the
Certificates.
(viii) Each Company Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Company and each Company Agreement constitutes, a valid and binding agreement of
the Company, enforceable against the Company in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of the Certificates, and the
execution, delivery and performance of each Company Agreement and the
consummation of the transactions contemplated hereby and thereby, do not and
will not conflict with or result in a breach of or violate any term or provision
of or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Company is a party,
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by which the Company may be bound or to which any of the property or assets of
the Company or any of its subsidiaries may be subject, nor will such actions
result in any violation of the provisions of the articles of incorporation or
by-laws of the Company or any law, statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its respective properties or assets.
(x) KPMG Peat Marwick is an independent public accountant with
respect to the Company as required by the Securities Act and the Rules and
Regulations.
(xi) The direction by the Company to the Trustee to execute,
authenticate, countersign, issue and deliver the Certificates will be duly
authorized by the Company, and, assuming the Trustee has been duly authorized to
do so, when executed, authenticated, countersigned, issued and delivered by the
Trustee in accordance with the Pooling and Servicing Agreement, the Certificates
will be validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(xii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance and sale of the Certificates, or the
consummation by the Company of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the Offered
Certificates and such consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be required under
securities or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by you.
(xiii) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Company Offering Materials (or is exempt therefrom)
and the Company has not received notice of any proceedings relating to the
revocation or modification of such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
(xiv) Neither the Company nor the Trust created by the Pooling and
Servicing Agreement will conduct its operations while any of the Certificates
are outstanding in a manner that would require the Company or the Trust to be
registered as an "investment company" under the Investment Company Act of 1940,
as amended (the "1940 Act"), as in effect on the date hereof.
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(xv) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of any Company Agreement, the
Certificate Insurance Policies and the Certificates that are required to be paid
by the Company at or prior to the Closing Date have been paid or will be paid at
or prior to the
Closing Date.
(xvi) At the Closing Date, each of the representations and
warranties of the Company set forth in any Company Agreement will be true and
correct in all material respects.
(xvii) (a) Following the conveyance of the Mortgage Loans to the
Trust pursuant to the Pooling and Servicing Agreement, the Trust will own the
Mortgage Loans free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens")
other than Liens created by the Pooling and Servicing Agreement, and (b) the
Company will have the power and authority to sell such Mortgage Loans to the
Trust.
(xviii) As of the Cut-off Date, each of the Mortgage Loans will meet
the eligibility criteria described in the Prospectus.
(xix) Each of the Certificates, the Pooling and Servicing Agreement,
any Sub-Servicing Agreement, the Indemnification Agreement and the Certificate
Insurance Policies conforms in all material respects to the descriptions thereof
contained in the Prospectus.
Any certificate signed by an officer of the Company and delivered to
you or your counsel in connection with an offering of the Offered Certificates
shall be deemed, and shall state that it is, a representation and warranty as to
the matters covered thereby to each person to whom the representations and
warranties in this Section 2A are made.
Section 3. Purchase and Sale. The Underwriters' commitment to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. The Company agrees to instruct the Trust to issue the Offered
Certificates to each Underwriter as set forth in Schedule 1 hereto, and each
Underwriter agrees, severally and not jointly, to purchase the Offered
Certificates set forth by its name on Schedule 1 hereto on the date of issuance
thereof. The purchase prices for the Offered Certificates shall be as set forth
on Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for,
and delivery of, any Offered Certificates to be purchased by you shall be made
at the office of Dewey Ballantine, 1301 Avenue of the Americas, New York, New
York, or at such other place as shall be agreed upon by you and the Company,
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at 10:00 a.m. New York City time on November 21, 1996 (the "Closing Date"), or
at such other time or date as shall be agreed upon in writing by you and the
Company. Payment shall be made by wire transfer of same day funds payable to the
account designated by the Company. Each of the Offered Certificates so to be
delivered shall be represented by one or more global certificates registered in
the name of Cede & Co., as nominee for The Depository Trust Company.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 12:00 p.m. New York City time on the business day prior to the
Closing Date.
Section 5. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
Section 6. Covenants of the Company. The Company covenants with each
of the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by the
Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the Underwriters of such timely
filing; to cause to be made no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the 91st day following the
Closing Date except as permitted herein; to advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the 91st day
following the Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the 91st day following the Closing Date and
to furnish the Underwriters with copies thereof; to file promptly all reports
and any global proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, until the 91st day
following the Closing Date; to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; (iv) any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional information. In
the event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, the
Company promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
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B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) the Prospectus
and any amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the offering or sale of
the Offered Certificates and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company shall notify the Underwriters
and, upon the Underwriters' request based upon the advice of counsel, shall file
such document and prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such compliance.
D. To cause to be filed promptly with the Commission any amendment
to the Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriters, be
required by the Securities Act or requested by the Commission.
E. To cause to be furnished to the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the consent of
the Underwriters, which consent will not unreasonably be withheld, for the
filing of the following documents relating to the Certificates: (i) any
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) Prospectus
pursuant to Rule 424 of the Rules and Regulations.
F. To cause to be made generally available to holders of the Offered
Certificates as soon as practicable, but in any event not later than 90 days
after the close of the period covered thereby, a statement of earnings of the
Trust (which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including Rule 158) and covering a period
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of at least twelve consecutive months beginning not later than the first day of
the first fiscal quarter following the Closing Date.
G. To use its best efforts, in cooperating with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Underwriters may designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Offered Certificates. The Company will cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in which the
Offered Certificates have been so qualified.
H. The Company will not, without the prior written consent of the
Underwriters, contract to sell any mortgage pass-through certificates, mortgage
pass-through notes or collateralized mortgage obligations or other similar
securities either directly or indirectly for a period of five (5) business days
prior to the later of termination of the syndicate or the Closing Date.
I. So long as the Offered Certificates shall be outstanding, the
Company shall cause the Trustee, pursuant to the Pooling and Servicing
Agreement, to deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual statement as to compliance of the
Master Servicer under the Pooling and Servicing Agreement delivered to the
Trustee pursuant to Section 10.16 thereof; (ii) the annual statement of a firm
of independent public accountants furnished to the Trustee pursuant to Section
10.17 of the Pooling and Servicing Agreement; and (iii) the monthly reports
furnished to the Owners pursuant to Section 7.6 of the Pooling and Servicing
Agreement.
J. So long as any of the Offered Certificates are outstanding, the
Company will furnish to the Underwriters (i) as soon as practicable after the
end of the fiscal year of the Trust all documents required to be distributed to
Certificateholders and other filings with the Commission pursuant to the
Exchange Act, or any order of the Commission thereunder with respect to any
securities issued by the Company that are (A) non-structured equity or debt
offering of the Company or (B) the Offered Certificates and (ii) from time to
time, any other information concerning the Company filed with any government or
regulatory authority which is otherwise publicly available, as the Underwriters
shall reasonably request in writing.
K. To apply the net proceeds from the sale of the Offered
Certificates in the manner set forth in the Prospectus.
L. If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the knowledge of
the Company, there shall have been any material change, or any development
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involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company, the Company will give prompt written notice thereof to the
Underwriters.
M. The Trustee will prepare, or cause to be prepared, and file, or
cause to be filed, a timely election to treat the Trust Fund as a REMIC for
Federal income tax purposes and will file, or cause to be filed, such tax
returns and take such actions, all on a timely basis, as are required to elect
and maintain such status.
N. To the extent, if any, that the ratings provided with respect to
the Offered Certificates by the rating agency or agencies that initially rate
the Offered Certificates are conditional upon the furnishing of documents or the
taking of any other actions by the Company, the Company shall use its best
efforts to furnish or cause to be furnished such documents and take any such
other actions.
Section 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates pursuant to
this Agreement are subject to (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of the Company herein contained,
(ii) the accuracy of the statements of officers of the Company made pursuant
hereto, (iii) the performance by the Company of all of its obligations
hereunder, and the performance by the Company of all of its obligations under
the Company Agreements and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with.
B. You shall have received the Transfer Agreement, the Pooling and
Servicing Agreement, any Sub-Servicing Agreements, the Insurance Agreement, the
Indemnification Agreement and the Offered Certificates in form and substance
satisfactory to you and duly executed by the signatories required pursuant to
the respective
terms thereof.
C. You shall have received from Dewey Ballantine, counsel for the
Company and the Transferor, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
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(i) The issuance and sale of the Offered Certificates have been duly
authorized and, when executed, authenticated, countersigned and delivered
by the Trustee in accordance with the Pooling and Servicing Agreement and
delivered and paid for pursuant to this Agreement, will be validly issued
and outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement.
(ii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority is necessary under the
federal law of the United States or the laws of the State of New York in
connection with the execution, delivery and performance by the Company of
the Company Agreements, except such as may be required under the Act or
the Rules and Regulations and Blue Sky or other state securities laws,
filings with respect to the transfer of the Mortgage Loans to the Trust
pursuant to the Pooling and Servicing Agreement and such other approvals
or consents as have been obtained.
(iii) Each Company Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with their respective terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally, (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity) and (C) the
enforceability as to rights to indemnification may be subject to
limitations of public policy under applicable laws.
(iv) Each Transferor Agreement constitutes the legal, valid and
binding obligation of the Transferor, enforceable against the Transferor
in accordance with their respective terms, except that as to
enforceability such enforcement may (A) be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally, (B) be limited by general
principles of equity (whether considered in a proceeding at law or in
equity) and (C) the enforceability as to rights to indemnification may be
subject to limitations of public policy under applicable laws.
(v) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(vi) Neither the Company nor the Trust is required to be registered
as an "investment company" under the Investment Company Act of 1940, as
amended.
(vii) The direction by the Company to the Trustee to execute, issue,
countersign and deliver the Offered Certificates has been duly authorized
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and, when the Offered Certificates are executed and authenticated by the
Trustee in accordance with the Pooling and Servicing Agreement and
delivered and paid for pursuant to this Agreement, they will be validly
issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Company to the Transferor pursuant to the Sale Agreement, the Company
was the sole owner of all right, title and interest in the Mortgage Loans
and other property to be transferred to the Transferor.
(ix) The Company has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Transferor and
has duly authorized such sale and assignment to the Transferor by all
necessary corporate action.
(x) The Company has directed the Trustee in its capacity as Trustee
of the Access Financial Loan Purchase Trust to transfer, assign, set over
and otherwise convey without recourse, to the Transferor, all right, title
and interest of the Company in and to each Mortgage Loan listed on the
Mortgage Loan Schedule delivered by the Company on the Startup Day, and
all of its right, title and interest in and to (A) scheduled payments of
interest due on each Mortgage Loan after the Cut-Off Date, (B) scheduled
payments of principal due, and unscheduled collections of principal
received, on each Mortgage Loan on and after the Cut-off Date and (C) the
Certificate Insurance Policy; such transfer of the Mortgage Loans set
forth on the Mortgage Loan Schedule to the Transferor will be absolute and
is intended by the Company and all parties hereto to be treated as a sale
to the Trust.
(xi) The Offered Certificates, the Pooling and Servicing Agreement,
any Sub-Servicing Agreement and this Agreement each conform in all
material respects with the respective descriptions thereof contained in
the Registration Statement and the Prospectus.
(xii) The statements in the Prospectus under the captions "Summary
of Prospectus - Certain Federal Income Tax Considerations", "Summary of
Prospectus - ERISA Considerations", "ERISA Considerations" and "Certain
Federal Income Tax Considerations", "Summary - ERISA Considerations",
"Summary - Federal Tax Aspects", "ERISA Considerations", "Certain Federal
Tax Aspects" and "REMICS", to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by such
counsel and represent a fair and accurate summary of the matters addressed
therein, under existing law and the assumptions stated therein.
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(xiii) The statements in the Prospectus under the caption "Certain
Legal Aspects of Mortgage Loans and Related Matters", "Legal Investment
Matters" and "Legal Investment Considerations" to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects.
(xiv) The Offered Certificates will, when issued, be properly
characterized for Federal income tax purposes as indebtedness of the
Company and the Trust created by the Pooling and Servicing Agreement and
will not constitute a "taxable mortgage pool" within the meaning of
Section 7701(i) of the Code.
(xv) Assuming compliance with all of the provisions of the Pooling
and Servicing Agreement, the arrangement pursuant to which the Mortgage
Loans will be administered by the Trustee and pursuant to which the
Offered Certificates will be sold will be treated as a REMIC as defined by
Section 860D of the Code and the Offered Certificates and the Class B
Certificates will be treated as "regular interests" in a REMIC (or a
combination of "regular interests" in a REMIC), and the Residual
Certificates will be treated as "residual interests" in a REMIC on the
date of issuance thereof and will continue to qualify as a REMIC for so
long as such arrangement continues to comply with any applicable changes
in the provisions of the Code and regulations issued thereunder.
(xvi) The Registration Statement is effective under the Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued, and to the best of such counsel's knowledge no proceeding for
that purpose has been instituted or threatened by the Commission under the
Act.
(xvii) The conditions to the use by the Company of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and Regulations thereunder
which have not been so filed.
(xviii) The Registration Statement at the time it became effective,
and any amendments thereto at the time such amendment becomes effective
(other than the information set forth in the financial statements and
other financial and statistical information contained therein, as to which
such counsel need express no opinion), complied as to form in all material
respects with the applicable requirements of the Act and the Rules and
Regulations thereunder.
(xix) The execution, delivery and performance of each Company
Agreement by the Company will not conflict with or violate any federal
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<PAGE>
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Company or its
properties or assets.
(xx) The execution, delivery and performance of each Transferor
Agreement by the Transferor will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Transferor or its
properties or assets.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of each of
the Company, the Transferor, any Sub-Servicer, the Certificate Insurer, the
Trustee and the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and on the basis of the
foregoing, no facts have come to such counsel's attention that have led such
counsel to believe the Registration Statement, at the time it became effective
and as of the date of such counsel's opinion contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of its date and as of the date of such
counsel's opinion, contained or contains an untrue statement of material fact or
omitted or omits to state a material fact necessary to make the statements
therein not misleading; it being understood that such counsel need express no
belief with respect to the financial statements, schedules and other financial
and statistical data included in the Registration Statement or the Prospectus.
D. The Company shall have delivered to the Underwriters a
certificate, dated the Closing Date, of an authorized officer of the Company to
the effect that the signer of such certificate has carefully examined this
Agreement and the Prospectus and that: (i) the representations and warranties of
the Company in each Company Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date, (ii) the Company has complied in all material respects with all
the agreements and satisfied in all material respects all the conditions on its
part to be performed or satisfied at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to such officer's
knowledge, threatened, (iv) there has been no material adverse change in the
condition (financial or other), earnings, business, properties or prospects of
the Company, whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus and (v) nothing
has come to such officer's attention that would lead such officer to believe
that the Company Offering Materials contain any untrue statement of a material
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<PAGE>
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company shall attach to such certificate a true and correct copy
of its certificate of incorporation, as appropriate, and bylaws which are in
full force and effect on the date of such certificate and a certified true copy
of the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
E. The Transferor shall have delivered to the Underwriters a
certificate, dated the Closing Date, of an authorized officer of the Transferor
to the effect that the signer of such certificate has carefully examined this
Agreement and the Prospectus and that: (i) the representations and warranties of
the Transferor in each Transferor Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date and (ii) the Transferor has complied in all material respects with
all the agreements and satisfied in all material respects all the conditions on
its part to be performed or satisfied at or prior to the Closing Date.
The Transferor shall attach to such certificate a true and correct
copy of its certificate of incorporation, as appropriate, and bylaws which are
in full force and effect on the date of such certificate and a certified true
copy of the resolutions of its Board of Directors with respect to the
transactions contemplated herein.
F. The Underwriters shall have received from in-house counsel of the
Company, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters to the effect
that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with full corporate power to own its property or assets and to conduct its
business as presently conducted by it and as described in the Prospectus,
and is in good standing in each jurisdiction in which the conduct of its
business or the ownership of its property or assets requires such
qualification or where the failure to be so qualified would have a
material adverse effect on its condition (financial or otherwise).
(ii) Each Company Agreement has been duly authorized, executed and
delivered by authorized officers or signers of the Company.
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<PAGE>
(iii) The direction by the Company to the Trustee to execute, issue,
countersign and deliver the Offered Certificates has been duly authorized
by the Company.
(v) The execution, delivery and performance of each Company
Agreement by the Company will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Company pursuant
to the terms of the certificate of incorporation or the by-laws of the
Company or any statute, rule, regulation or order of any governmental
agency or body of the State of Minnesota, or any Minnesota state court
having jurisdiction over the Company or its property or assets or any
material agreement or instrument known to such counsel, to which the
Company is a party or by which the Company or any of its property or
assets is bound.
(vii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of
Minnesota is necessary in connection with the execution, delivery and
performance by the Company of any Company Agreement, except such as may be
required under the Act or the Rules and Regulations and Blue Sky or other
state securities laws, filings with respect to the transfer of the
Mortgage Loans to the Transferor pursuant to the Sale Agreement and such
other approvals or consents as have been obtained.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company is a party or of
which any property or assets of the Company is the subject, and no such
proceedings are to the best of such counsel's knowledge threatened or
contemplated by governmental authorities against the Company or the Trust,
that, (A) are required to be disclosed in the Registration Statement or
(B) (i) assert the invalidity against the Company of all or any part of
any Company Agreement, (ii) seek to prevent the issuance of the Offered
Certificates, (iii) could materially adversely affect the Company's
obligations under any Company Agreement, or (iv) seek to affect adversely
the federal or state income tax attributes of the Offered Certificates.
G. The Underwriters shall have received from in-house counsel of the
Transferor, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters to the effect
that:
(i) The Transferor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power to own its property or assets and to
conduct its business as presently conducted by it, and is in good standing
in each jurisdiction in which the conduct of its business or the ownership
17
<PAGE>
of its property or assets requires such qualification or where the failure
to be so qualified would have a material adverse effect on its condition
(financial or otherwise).
(ii) Each Transferor Agreement has been duly authorized, executed
and delivered by authorized officers or signers of the Transferor.
(v) The execution, delivery and performance of each Transferor
Agreement by the Transferor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Transferor
pursuant to the terms of the certificate of incorporation or the by-laws
of the Transferor or any statute, rule, regulation or order of any
governmental agency or body of the State of Minnesota, or any Minnesota
state court having jurisdiction over the Transferor or its property or
assets or any material agreement or instrument known to such counsel, to
which the Transferor is a party or by which the Transferor or any of its
property or assets is bound.
(vii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of
Minnesota is necessary in connection with the execution, delivery and
performance by the Transferor of any Transferor Agreement, except such as
may be required under the Act or the Rules and Regulations and Blue Sky or
other state securities laws, filings with respect to the transfer of the
Mortgage Loans to the Trust pursuant to the Pooling and Servicing
Agreement and such other approvals or consents as have been obtained.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Transferor is a party or of
which any property or assets of the Transferor is the subject, and no such
proceedings are to the best of such counsel's knowledge threatened or
contemplated by governmental authorities against the Transferor or the
Trust, that, (A) are required to be disclosed in the Registration
Statement or (B) (i) assert the invalidity against the Transferor of all
or any part of any Transferor Agreement, (ii) seek to prevent the issuance
of the Offered Certificates, (iii) could materially adversely affect the
Transferor's obligations under any Transferor Agreement, or (iv) seek to
affect adversely the federal or state income tax attributes of the Offered
Certificates.
H. The Underwriters shall have received from special counsel to the
Certificate Insurer, reasonably acceptable to the Underwriters, a favorable
18
<PAGE>
opinion dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that:
(i) The Certificate Insurer is a monoline insurance company licensed
and authorized to transact insurance business and to issue, deliver and
perform its obligations under its surety bonds under the laws of the State
of New York. The Certificate Insurer (a) is a monoline insurance company
validly existing and in good standing under the laws of the State of New
York, (b) has the corporate power and authority to own its assets and to
carry on the business in which it is currently engaged, and (c) is duly
qualified and in good standing as a foreign corporation under the laws of
each jurisdiction where failure so to qualify or to be in good standing
would have a material and adverse effect on its business or operations.
(ii) No litigation or administrative proceedings of or before any
court, tribunal or governmental body are currently pending or, to the best
of such counsel's knowledge, threatened against the Certificate Insurer,
which, if adversely determined, would have a material and adverse effect
on the ability of the Certificate Insurer to perform its obligations under
the Certificate Insurance Policy.
(iii) The Certificate Insurance Policy and the Indemnification
Agreement constitute the irrevocable, valid, legal and binding obligations
of the Certificate Insurer in accordance with their respective terms to
the extent provided therein, enforceable against the Certificate Insurer
in accordance with their respective terms, except as the enforceability
thereof and the availability of particular remedies to enforce the
respective terms thereof against the Certificate Insurer may be limited by
applicable laws affecting the rights of creditors of the Certificate
Insurer and by the application of general principles of equity.
(iv) The Certificate Insurer, as an insurance company, is not
eligible for relief under the United States Bankruptcy Code. Any
proceedings for the liquidation, conservation or rehabilitation of the
Certificate Insurer would be governed by the provisions of the Insurance
Law of the State of New York.
(v) The statements set forth in the Prospectus under the caption
"The Certificate Insurance Policy and the Certificate Insurer" are true
and correct, except that no opinion is expressed as to financial
statements or other financial information included in the Prospectus
relating to the Certificate Insurer and, insofar as such statements
constitute a summary of the Certificate Insurance Policy, accurately and
fairly summarize the terms of the Certificate Insurance Policy.
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(vi) The Certificate Insurance Policy constitutes an insurance
policy within the meaning of Section 3(a)(8) of the Act.
(vii) Neither the execution or delivery by the Certificate Insurer
of the Certificate Insurance Policy, the Insurance Agreement, the
Indemnification Agreement, nor the performance by the Certificate Insurer
of its obligations thereunder, will conflict with any provision of the
certificate of incorporation or the amended by-laws of the Certificate
Insurer nor, to the best of such counsel's knowledge, result in a breach
of, or constitute a default under, any agreement or other instrument to
which the Certificate Insurer is a party or by which any of its property
is bound nor, to the best of such counsel's knowledge, violate any
judgment, order or decree applicable to the Certificate Insurer of any
governmental regulatory body, administrative agency, court or arbitrator
located in any jurisdiction in which the Certificate Insurer is licensed
or authorized to do business.
I. The Underwriters shall have received from counsel to LSI
Financial Group, Inc. ("LSI"), reasonably acceptable to the Underwriters, a
favorable opinion dated the Closing Date and satisfactory in form and substance
to the Underwriters and counsel for the Underwriters, to the effect that:
(i) LSI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its state of incorporation.
(ii) LSI has full corporate power and authority to enter into and
perform its obligations under the Sub-Servicing Agreement, including, but
not limited to, its obligation to serve in the capacity of sub-servicer
pursuant to the Sub-Servicing Agreement.
(iii) The Sub-Servicing Agreement has been duly authorized, executed
and delivered by LSI and constitutes a legal, valid and binding obligation
of LSI enforceable against LSI in accordance with its terms, except that
as to enforceability such enforcement may (A) be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and (B) be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(iv) The execution, delivery and performance of the Sub-Servicing
Agreement by LSI will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of LSI pursuant to the terms of the certificate of
incorporation or the by-laws of LSI or any statute, rule, regulation or
20
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order of any governmental agency or body, or any court having jurisdiction
over LSI or its property or assets or any agreement or instrument known to
such counsel, to which LSI is a party or by which LSI or any of its
property or assets is bound.
(v) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is
necessary in connection with the execution, delivery and performance by
LSI of the Sub-Servicing Agreement.
J. The Underwriters shall have received a certificate of LSI signed
by an authorized officer of LSI, dated the Closing Date to the effect that such
officer has examined the information contained under the heading "The
Sub-Servicer" with respect to LSI and the Sub-Servicing Agreement in the
Prospectus and that such information does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
K. The Underwriters shall have received from Dewey Ballantine,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Offered Certificates and such other related
matters as the Underwriters may require.
L. The Underwriters shall have received from counsel to the Trustee
a favorable opinion dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the effect
that:
(i) The Trustee has been duly incorporated and is validly existing
as a banking association in good standing under the laws of the state of
New York.
(ii) The Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Pooling and Servicing
Agreement, including, but not limited to, its obligation to serve in the
capacity of Trustee and to execute, issue, countersign and deliver the
Offered Certificates.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee, and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee, in
accordance with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and (B) be limited by general principles of equity
21
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(whether considered in a proceeding at law or in equity).
(iv) The Certificates have been duly authorized, executed and
authenticated by the Trustee on the date hereof on behalf of the Trust in
accordance with the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of the Pooling and
Servicing Agreement and the Certificates by the Trustee will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the
Trustee pursuant to the terms of the articles of association or the
by-laws of the Trustee or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction over the
Trustee or its property or assets or any agreement or instrument known to
such counsel, to which the Trustee is a party or by which the Trustee or
any of its respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing
with, any state or federal court or governmental agency or authority is
necessary in connection with the execution, delivery and performance by
the Trustee of the Pooling and Servicing Agreement and the Offered
Certificates, as applicable.
(vii) If the Trustee were acting as Master Servicer under the
Pooling and Servicing Agreements on the date hereof, the Trustee would
have the power and authority to perform the obligations of the Master
Servicer as provided in the Pooling and Servicing Agreement.
M. The Trustee shall have furnished to the Underwriters a
certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due authorization, execution and
delivery of the Pooling and Servicing Agreement by the Trustee and the
acceptance by the Trustee of the trusts created thereby and the due execution
and delivery of the Certificates by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
N. The Indemnification Agreement shall have been executed and
delivered, in which the Certificate Insurer shall represent, among other
representations, that (i) the information under the captions "Certificate
Insurer" and "Certificate Insurance Policy" in the section entitled "Summary"
and "The Certificate Insurance Policy and the Certificate Insurer" in the
Prospectus Supplement was approved by the Certificate Insurer and does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
22
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under which they were made, not misleading and (ii) there has been no change in
the financial condition of the Certificate Insurer since June 30, 1996, which
would have a material adverse effect on the Certificate Insurer's ability to
meet its obligations under the Certificate Insurance Policy.
O. The Certificate Insurance Policy shall have been issued by the
Certificate Insurer and shall have been duly countersigned by an authorized
agent of the Certificate Insurer, if so required under applicable state law or
regulation.
P. The Offered Certificates shall have been rated "AAA" by Standard
& Poor's Corporation ("S&P") and "Aaa" by Moody's Investors Service, Inc.
("Moody's").
Q. The Underwriters shall have received copies of letters dated as
of the Closing Date, from S&P and Moody's stating the current ratings of the
Offered Certificates as set forth in Section P. above.
R. The Underwriters shall have received from Dewey Ballantine,
counsel to the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Certificates.
S. All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such other information, opinions, certificates and documents as they
may reasonably request in writing.
T. The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the rules and regulations
under the Act and Section 2 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by you by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 8 and (ii) the provisions of
Section 8, the indemnity set forth in Section 9, the contribution provisions set
23
<PAGE>
forth in Section 10 and the provisions of Sections 12 and 15 shall remain in
effect.
Section 8. Payment of Expenses. The Company agrees to pay the
following expenses incident to the performance of the Company's obligations
under this Agreement, (i) the filing of the Registration Statement and all
amendments thereto, (ii) the duplication and delivery to you, in such quantities
as you may reasonably request, of copies of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates, (iv) the fees and
disbursements of Dewey Ballantine, counsel for the Underwriters and special
counsel to the Company and the Transferor, (v) the fees and disbursements of
KPMG Peat Marwick, accountants of the Company (excluding fee and disbursements
of KPMG Peat Marwick related to providing comfort in connection with the Derived
Information), (vi) the qualification of the Offered Certificates under
securities and Blue Sky laws and the determination of the eligibility of the
Offered Certificates for investment in accordance with the provisions hereof,
including filing fees and the fees and disbursements of Dewey Ballantine,
counsel to the Underwriters, in connection therewith and in connection with the
preparation of any Blue Sky survey, (vii) the printing and delivery to you, in
such quantities as you may reasonably request, of copies of the Registration
Statement and Prospectus and all amendments and supplements thereto, and of any
Blue Sky survey, (viii) the duplication and delivery to you, in such quantities
as you may reasonably request, of copies of the Pooling and Servicing Agreement
and the other transaction documents, (ix) the fees charged by nationally
recognized statistical rating agencies for rating the Offered Certificates, (x)
the fees and expenses of the Trustee and its counsel and (xi) the fees and
expenses of the Certificate Insurer and its counsel.
If this Agreement is terminated by you in accordance with the
provisions of Section 7, the Company shall reimburse you for all reasonable
third-party out-of-pocket expenses, including the reasonable fees and
disbursements of Dewey Ballantine, your counsel.
Section 9. Indemnification. A. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls each
Underwriter within the meaning of the Securities Act or the Exchange Act, from
and against any and all loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Offered
Certificates), to which each Underwriter or any such controlling person may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Company Offering Materials or (ii) the omission or alleged
omission to state therein a material fact required to be stated or necessary to
24
<PAGE>
make the statements therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse each Underwriter and each such
controlling person promptly upon demand for any documented legal or documented
other expenses reasonably incurred by each Underwriter or such controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the foregoing indemnity with respect to any
untrue statement contained in or omission from a prospectus shall not inure to
the benefit of each Underwriter if the Company shall sustain the burden of
proving that the person asserting against such Underwriter the loss, liability,
claim, damage or expense purchased any of the Offered Certificates which are the
subject thereof and was not sent or given a copy of the appropriate Prospectus
(or the appropriate Prospectus as amended or supplemented), if required by law,
at or prior to the written confirmation of the sale of such Offered Certificates
to such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the appropriate Prospectus (or the
appropriate Prospectus as amended or supplemented).
The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Underwriters or any controlling
person of any of the Underwriters.
B. Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, the directors and the officers of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act against any
and all loss, claim, damage or liability, or any action in respect thereof, to
which the Company or any such director, officer or controlling person may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Underwriter Information or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and shall reimburse the Company
promptly on demand, and any such director, officer or controlling person for any
documented legal or other documented expenses reasonably incurred by the
Company, or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability
which each Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
25
<PAGE>
C. Promptly after receipt by any indemnified party under this
Section 9 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 9, promptly notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party, unless such indemnified party reasonably objects to such assumption on
the ground that there may be legal defenses available to it which are different
from or in addition to those available to such indemnifying party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, except to the extent provided in the next
following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 9 for any fees and expenses of counsel
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
26
<PAGE>
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriters, if the indemnified
parties under this Section 9 consist of the Underwriters or any of its
controlling persons, or by the Company, if the indemnified parties under this
Section 9 consist of the Company or any of the Company's directors, officers or
controlling persons, but in either case reasonably satisfactory to the
indemnified party.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9A and B, shall use its best efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which such indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
Notwithstanding the foregoing, if (x) the indemnified party has made
a proper request to the indemnifying party for the payment of the indemnified
party's legal fees and expenses, as permitted hereby, and (y) such request for
payment has not been honored within thirty days, then, for so long as such
request thereafter remains unhonored, the indemnifying party shall be liable for
any settlement entered into by the indemnified party whether or not the
indemnifying party consents thereto.
D. The Underwriters agree to provide the Company no later than the
date on which the Prospectus Supplement is required to be filed pursuant to Rule
424 with a copy of any Derived Information (defined below) for filing with the
Commission on Form 8-K.
E. Each Underwriter, severally and not jointly, agrees, assuming all
Company-Provided Information (defined below) is accurate and complete in all
material respects, to indemnify and hold harmless the Company, its officers and
directors and each person who controls the Company within the meaning of the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they may become subject under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
27
<PAGE>
based upon any untrue statement of a material fact contained in the Derived
Information provided by such Underwriter, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. The obligations of each Underwriter under this Section
9(E) shall be in addition to any liability which each Underwriter may otherwise
have.
The procedures set forth in Section 9C shall be equally applicable
to this Section 9E.
F. For purposes of this Agreement, the term "Derived Information"
means such portion, if any, of the information delivered to the Company pursuant
to Section 9D for filing with the Commission on Form 8-K as: (i) is not
contained in the Prospectus without taking into account information incorporated
therein by reference; and (ii) does not constitute Company-Provided Information.
"Company-Provided Information" means any computer tape furnished to the
Underwriters by the Company concerning the assets comprising the Trust.
Section 10. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters (each, a "Contributing Party") shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by such Contributing Party (i) in such
proportion as is appropriate to reflect the relative benefits received by such
Contributing Party from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of such Contributing
Party in connection with the statements or omissions which resulted in the
losses, liabilities, claims, damages and expenses as well as any other relevant
equitable considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
28
<PAGE>
supplied by the Contributing Party and the Contributing Parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission and other equitable considerations.
Notwithstanding the provisions of Section 9 or of this Section 10,
neither Underwriter shall be required to be responsible for any amount in excess
of the amount by which the total re-offering price at which the Offered
Certificates underwritten by it and distributed and offered to the public
exceeds the amount paid hereunder by such Underwriter for the Offered
Certificates. For purposes of this Section 10, each person, if any, who controls
you within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as each of the Underwriters and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as
the Company.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Section 11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Offered Certificates if
prior to such time (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Trust or
the Company which, in the reasonable judgment of the Underwriters, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Offered Certificates; (ii) the Offered Certificates
have been placed on credit watch by S&P or Moody's with negative implications;
(iii) trading in securities generally on the New York Stock Exchange or the
National Association of Securities Dealers National Market System shall have
been suspended or limited, or minimum prices shall have been established on such
exchange or market system; (iv) a banking moratorium shall have been declared by
either Federal or New York State authorities; or (v) there shall have occurred
any outbreak or material escalation of hostilities or other calamity or crisis,
the effect of which makes it, in the reasonable judgment of the Underwriters,
impractical or inadvisable to proceed with the completion of the sale and
payment for the Offered Certificates. Upon such notice being given, the
29
<PAGE>
parties to this Agreement shall (except for any liability arising before or in
relation to such termination) be released and discharged from their respective
obligations under this Agreement.
Section 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of you or controlling person of you,
or by or on behalf of the Company or any officers, directors or controlling
persons and shall survive delivery of any Offered Certificates to you or any
controlling person.
Section 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to:
The Underwriters: Prudential Securities
Incorporated
One New York Plaza
15th Floor
New York, New York 10292-2015
Fax: (212) 778-7401
J.P. Morgan Securities Inc.
60 Wall Street, 18th Floor
New York, New York 10260-0060
Fax: (212) 648-5251
The Company: Access Financial Lending Corp.
400 Highway 169 South, Suite 400
Post Office Box 26365
St. Louis Park, MN 55426-0365
Attention: General Counsel
Fax: (612) 542-6510
Section 14. Parties. This Agreement shall inure to the benefit of
and be binding upon you and the Company, and their respective successors or
assigns. Nothing expressed or mentioned in this Agreement is intended nor shall
it be construed to give any person, firm or corporation, other than the parties
hereto or thereto and their respective successors and the controlling persons
and officers and directors referred to in Sections 9 and 10 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
with respect to this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives (to the extent of their rights as specified herein and therein)
30
<PAGE>
and except as provided above for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from you shall be deemed to be
a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE WITH
SUCH LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
Section 18. Default of Underwriters. If either Underwriter defaults
in its obligations to purchase the Offered Certificates offered to it hereunder
(such Underwriter, the "Defaulting Underwriter"), then the remaining Underwriter
(the "Performing Underwriter") shall have the option, but not the obligation, to
purchase all, but not less than all, of the Offered Certificates offered to the
Defaulting Underwriter. If the Performing Underwriter elects not to exercise
such option, then this Agreement will terminate without liability on the part of
the Performing Underwriter. Nothing contained herein shall relieve the
Defaulting Underwriter from any and all liabilities to the Company and the
Performing Underwriter resulting from the default of the Defaulting Underwriter.
[remainder of page deliberately left blank]
31
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
ACCESS FINANCIAL LENDING CORP.
By: __________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: __________________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By: __________________________________
Name:
Title:
[Underwriting Agreement]
<PAGE>
Schedule 1
Underwriting
Class A-1
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.75% $16,250,000 $16,209,375.00
Securities
Incorporated
J.P. Morgan 99.75% 16,250,000 16,209,375.00
Securities Inc. ----- ---------- -------------
TOTAL $32,500,000 $32,418,750.00
Class A-2
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.71875% $ 5,348,000 $ 5,332,958.75
Securities
Incorporated
J.P. Morgan 99.71875% 5,348,000 5,332,958.75
Securities Inc. -------- --------- ------------
TOTAL $10,696,000 $10,665,917.50
Class A-3
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.703125% $ 8,850,000 $ 8,823,726.56
Securities
Incorporated
J.P. Morgan 99.703125% 8,850,000 8,823,726.56
Securities Inc. --------- --------- ------------
TOTAL $17,700,000 $17,647,453.13
<PAGE>
Class A-4
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.75% $ 9,250,000 $ 9,226,875.00
Securities
Incorporated
J.P. Morgan 99.75% 9,250,000 9,226,875.00
Securities Inc. ----- --------- ------------
TOTAL $18,500,000 $18,453,750.00
Class A-5
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.75% $ 7,508,500 $ 7,489,728.75
Securities
Incorporated
J.P. Morgan 99.75% 7,508,500 7,489,728.75
Securities Inc. ----- --------- ------------
TOTAL $15,017,000 $14,979,457.50
Class A-6
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.75% $48,152,000 $48,031,620.00
Securities
Incorporated
J.P. Morgan 99.75% 48,152,000 48,031,620.00
Securities Inc. ----- ---------- -------------
TOTAL $96,304,000 $96,063,240.00
<PAGE>
Class A-7
---------------------------------
Purchase Price
Percentage Proceeds
(excluding Principal (excluding
Underwriter accrued interest) Amount accrued interest)
----------- ----------------- --------- -----------------
Prudential 99.75% $24,524,000 $24,462,690.00
Securities
Incorporated
J.P. Morgan 99.75% 24,524,000 24,462,690.00
Securities Inc. ----- ---------- -------------
TOTAL $49,048,000 $48,925,380.00
EXHIBIT 4.1
<PAGE>
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
Between
ACCESS FINANCIAL LENDING CORP.,
as the Seller
and
ACCESS FINANCIAL RECEIVABLES CORP.,
as the Purchaser
Dated as of November 1, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS........................................ 1
Section 1.01. Definitions.................................. 1
ARTICLE TWO PURCHASE, SALE AND CONVEYANCE OF
MORTGAGE LOANS..................................... 1
Section 2.01. Agreement to Purchase........................ 1
Section 2.02. Purchase Price............................... 2
Section 2.03. Conveyance of Mortgage Loans;
Possession of Mortgage Loan Files............ 2
Section 2.04. Transfer of Mortgage Loans;
Assignment of Agreement...................... 2
Section 2.05. Examination of Mortgage Loan Files........... 2
Section 2.06. Books and Records............................ 3
Section 2.07. Cost of Delivery and Recordation of
Documents.................................... 3
ARTICLE THREE REPRESENTATIONS AND WARRANTIES..................... 3
Section 3.01. Representations and Warranties as
to the Seller................................ 3
Section 3.02. Representations and Warranties of
the Purchaser................................ 4
ARTICLE FOUR THE SELLER......................................... 5
Section 4.01. Covenants of the Seller...................... 5
ARTICLE FIVE MISCELLANEOUS...................................... 6
Section 5.01. Notices...................................... 6
Section 5.02. Severability of Provisions................... 6
Section 5.03. Agreement of Seller.......................... 6
Section 5.04. Survival..................................... 6
Section 5.05. Effect of Headings and Table of
Contents..................................... 7
Section 5.06. Successors and Assigns....................... 7
Section 5.07. Confirmation of Intent; Grant of
Security Interest............................ 7
Section 5.08. Miscellaneous................................ 8
Section 5.09. Amendments................................... 8
Section 5.10. Third-Party Beneficiaries.................... 8
Section 5.11. GOVERNING LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL........... 8
Section 5.12. Execution in Counterparts.................... 9
Exhibit A - Mortgage Loan Schedule
i
<PAGE>
This Purchase and Sale Agreement, dated as of November 1, 1996,
between ACCESS FINANCIAL LENDING CORP., a Delaware corporation, its successors
and assigns (the "Seller"), and ACCESS FINANCIAL RECEIVABLES CORP., a Delaware
corporation and its successors and assigns (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Exhibit A attached hereto (the "Mortgage Loan Schedule")
and made a part hereof lists certain mortgage loans (the "Mortgage Loans") owned
by the Seller that the Seller desires to sell to the Purchaser and that the
Purchaser desires to purchase;
WHEREAS, it is the intention of the Seller and the Purchaser that,
immediately following the Seller's conveyance of the Mortgage Loans to Purchaser
on the Startup Day, (a) the Purchaser shall convey the Mortgage Loans to a trust
(the "Trust") pursuant to a Pooling and Servicing Agreement, dated as of
November 1, 1996 (the "Pooling and Servicing Agreement"), among the Seller,
Access Financial Lending Corp., as master servicer (the "Master Servicer"), the
Purchaser, as transferor and The Chase Manhattan Bank, as trustee (the
"Trustee") and (b) the Trustee shall issue certificates evidencing beneficial
ownership interests in the property of the Trust formed by the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are
not otherwise defined shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
ARTICLE TWO
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Agreement to Purchase. (a) Subject to the terms and
conditions of this Agreement, the Seller agrees to sell, and the Purchaser
agrees to purchase on the Startup Day, the Mortgage Loans. The Mortgage Loan
Schedule shall conform to the requirements of the Purchaser and to the
definition of "Mortgage Loan Schedule" under the Pooling and Servicing
Agreement.
<PAGE>
(b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Dewey Ballantine, New York, New York, at
10:00 a.m., New York time, on November 21, 1996 or such other place and time as
the parties shall agree (such time being herein referred to as the "Startup
Day").
Section 2.02. Purchase Price. On the Startup Day, as full
consideration for the Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Seller an amount in cash equal to the Seller's
book value of the Mortgage Loans, as certified to the Purchaser by the Seller.
Section 2.03. Conveyance of Mortgage Loans; Possession of Mortgage
Loan Files. (a) On the Startup Day, the Seller will direct the Trustee in its
capacity as trustee of Access Financial Lending Loan Purchase Trust to transfer,
assign, set over and otherwise convey without representation, warranty or
recourse, to the Purchaser, all right, title and interest of the Seller in and
to each Mortgage Loan listed on the Mortgage Loan Schedule delivered by the
Seller on the Startup Day, and all its right, title and interest in and to (i)
scheduled payments of interest due on each Mortgage Loan after the Cut-Off Date,
(ii) scheduled payments of principal due, and unscheduled collections of
principal received, on each Mortgage Loan on and after the Cut-Off Date, and
(iii) its Insurance Policies (the "Conveyed Property"); such transfer of the
Mortgage Loans set forth on the Mortgage Loan Schedule to the Purchaser is
absolute and is intended by the parties hereto to be treated as a sale to the
Purchaser.
(b) Pursuant to the Pooling and Servicing Agreement, the Purchaser
shall, on the Startup Day, assign all of its right, title and interest in and to
the Conveyed Property together with its rights hereunder to the Trust.
Section 2.04. Transfer of Mortgage Loans; Assignment of Agreement.
The Seller hereby acknowledges and agrees that the Purchaser may assign its
interest under this Agreement to the Trust as may be required to effect the
purposes of the Pooling and Servicing Agreement, without further notice to, or
consent of, the Seller, and the Trust shall succeed to such of the rights and
obligations of the Purchaser hereunder as shall be so assigned. The Purchaser
shall, pursuant to the Pooling and Servicing Agreement, assign all of its right,
title and interest in and to the Conveyed Property to the Trustee for the
benefit of the Certificateholders.
Section 2.05. Examination of Mortgage Loan Files. Prior to the
Startup Day, the Seller shall make the Mortgage Loan Files available to the
Purchaser or its designee for examination at the Trustee's offices or at such
other place as the Seller shall reasonably specify. Such examination may be made
2
<PAGE>
by the Purchaser or its designee at any time on or before the Startup Day. If
the Purchaser or its designee makes such examination prior to the Startup Day
and identifies any Mortgage Loans that do not conform to the requirements of the
Purchaser as described in this Agreement, such Mortgage Loans shall be deleted
from the Schedule of Mortgage Loans and may be replaced, prior to the Startup
Day, by Qualified Replacement Mortgage acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase the
Mortgage Loans without conducting any partial or complete examination. The fact
that the Purchaser or the Trustee has conducted or has failed to conduct any
partial or complete examination of the Files shall not affect the rights of the
Purchaser or the Trustee to demand repurchase or other relief as provided in
this Agreement.
Section 2.06. Books and Records. The sale of each Mortgage Loan
shall be reflected on the Seller's accounting and other records, balance sheet
and other financial statements as a sale of assets by the Seller to the
Purchaser. The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be
clearly marked to reflect the ownership of each Mortgage Loan by the Trustee for
the benefit of the Certificateholders.
Section 2.07. Cost of Delivery and Recordation of Documents. The
costs relating to the delivery and recordation of the documents specified in
this Article Two in connection with the Mortgage Loans shall be borne by the
Seller.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller. The
Seller hereby represents and warrants to the Purchaser, as of the Startup Day,
that:
(a) Organization and Good Standing. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Seller is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller.
3
<PAGE>
(b) Authorization; Binding Obligations. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and to create the Trust and
cause it to make, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to cause the Trust to
be created. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Seller enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Seller will not violate any provision of any existing law or
regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or any of its properties
or, with respect to this Agreement, the Certificates which, if adversely
determined, would in the opinion of the Seller have a material adverse effect on
the transactions contemplated by this Agreement.
Section 3.02. Representations and Warranties of the Purchaser. The
Purchaser hereby represents, warrants and covenants to the Seller, as of the
date of execution of this Agreement and the Startup Day, that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Purchaser has the corporate power and authority to purchase
each Mortgage Loan and to execute, deliver and perform, and to enter into and
consummate all the transactions contemplated by this Agreement;
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<PAGE>
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, and, assuming the due authorization, execution
and delivery hereof by the Seller, constitutes the legal, valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Purchaser
with this Agreement or the consummation by the Purchaser of any of the
transactions contemplated hereby, except such as have been made on or prior to
the Startup Day; and
(e) None of the execution and delivery of this Agreement, the
purchase of the Mortgage Loans from the Seller, the consummation of the other
transactions contemplated hereby, or the fulfillment of or compliance with the
terms and conditions of this Agreement, (i) conflicts or will conflict with the
charter or bylaws of the Purchaser or conflicts or will conflict with or results
or will result in a breach of, or constitutes or will constitute a default or
results or will result in an acceleration under, any term, condition or
provision of any indenture, deed of trust, contract or other agreement or other
instrument to which the Purchaser is a party or by which it is bound and which
is material to the Purchaser, or (ii) results or will result in a violation of
any law, rule, regulation, order, judgment or decree of any court or
governmental authority having jurisdiction over the Purchaser.
ARTICLE FOUR
THE SELLER
Section 4.01. Covenants of the Seller. The Seller hereby agrees to
do all acts, transactions, and things and to execute and deliver all agreements,
documents, instruments, and papers by and on behalf of the Seller as the
Purchaser or its counsel may reasonably request in order to consummate the sale
and transfer of the Mortgage Loans to the Purchaser and the subsequent sale and
transfer thereof to the Trustee, and the rating, issuance and sale of the
Certificates.
ARTICLE FIVE
5
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MISCELLANEOUS
Section 5.01. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing,
addressed to the Seller at Access Financial Lending Corp., 400 Highway 169
South, Suite 300, St. Louis Park, MN 55426-0365, Attention: President, or to
such other address as the Seller may designate in writing to the Purchaser and
if to the Purchaser, addressed to the Purchaser at Access Financial Receivables
Corp., 400 Highway 169 South, Suite 410, St. Louis Park, MN 55426-0365,
Attention: President, or to such other address as the Purchaser may designate in
writing to the Seller.
Section 5.02. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 5.03. Agreement of Seller. The Seller agrees to execute and
deliver such instruments and take such actions as the Purchaser may, from time
to time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement.
Section 5.04. Survival. The parties to this Agreement agree that the
representations, warranties and agreements made by each of them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon by the other party hereto, notwithstanding any investigation
heretofore or hereafter made by such other party or on such other party's
behalf, and that the representations, warranties and agreements made by the
parties hereto in this Agreement or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans.
6
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Section 5.05. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 5.06. Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as expressly permitted by the terms
hereof, this Agreement may not be assigned, pledged or hypothecated by any party
hereto to a third Person without the written consent of the other party to this
Agreement; provided, however, that the Purchaser may assign its rights hereunder
without the consent of the Seller.
Section 5.07. Confirmation of Intent; Grant of Security Interest. It
is the express intent of the parties hereto that the conveyance of the Mortgage
Loans by the Seller to the Purchaser as contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller to the Purchaser of the
Mortgage Loans. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller then (a) this Agreement shall also
be deemed to be a security agreement within the meaning of Articles 8 and 9 of
the Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable on the Mortgage Loans in accordance with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property; (c) the
possession by the Purchaser of Mortgage Loans and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser 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
7
<PAGE>
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement.
Section 5.08. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 5.09. Amendments. (a) This Agreement may be amended from
time to time by the Seller and the Purchaser by written agreement without notice
to or consent of the Certificateholders to cure any ambiguity, to correct or
supplement any provisions herein, to comply with any changes in the Code, or to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, at the expense of the party requesting the change, delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; provided, further, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or change the rights or obligations
of any other party hereto without the consent of such party.
(b) It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
Section 5.10. Third-Party Beneficiaries. The parties agree that the
Trustee is an intended third-party beneficiary of this Agreement to the extent
necessary to enforce the rights and to obtain the benefit of the remedies of the
Purchaser under this Agreement which are assigned to the Trustee for the benefit
of the Certificateholders pursuant to the Pooling and Servicing Agreement and to
the extent necessary to obtain the benefit of the enforcement of the obligations
and covenants of the Seller under Sections 3.05 and 4.01 of this Agreement.
Section 5.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) THE PURCHASER AND THE SELLER EACH HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
8
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EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS
SET FORTH IN SECTION 5.01 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. THE PURCHASER AND THE SELLER EACH HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE PURCHASER AND THE SELLER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION
OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE PURCHASER AND THE SELLER EACH HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN Mortgage
Loan, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 5.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
ACCESS FINANCIAL LENDING CORP.
By:_________________________________
Name:
Title:
ACCESS FINANCIAL RECEIVABLES CORP.
By:_________________________________
Name:
Title:
[Purchase and Sale Agreement]
EXHIBIT 4.2
<PAGE>
POOLING AND SERVICING AGREEMENT
Relating to
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
Among
ACCESS FINANCIAL LENDING CORP.,
as Seller and Master Servicer,
ACCESS FINANCIAL RECEIVABLES CORP.,
as the Transferor,
and
THE CHASE MANHATTAN BANK
as Trustee
Dated as of November 1, 1996
<PAGE>
TABLE OF CONTENTS
(Not a Part of this Agreement)
Page
Parties.............................................................. 1
Recitals............................................................. 1
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION................. 1
1.1. Definitions.............................................. 1
Account............................................ 1
Accrual Period..................................... 2
Affiliate.......................................... 2
Agreement.......................................... 2
Appraised Value.................................... 2
Auction Sale....................................... 2
Authorized Officer................................. 2
Available Funds.................................... 2
Base Group I Principal Distribution
Amount....................................... 2
Base Group II Principal Distribution
Amount....................................... 3
Base Group III Principal Distribution
Amount....................................... 3
Business Day....................................... 3
Certificate........................................ 4
Certificate Account................................ 4
Certificate Insurance Policy....................... 4
Certificate Insurer................................ 4
Certificate Insurer Default........................ 4
Certificate Insurer Premium Rate................... 4
Certificate Principal Balance...................... 5
Certificateholder.................................. 5
Class ............................................. 5
Class A Certificate Principal Balance.............. 5
Class A Certificates............................... 5
Class A Distribution Account....................... 5
Class A Group I Certificates....................... 5
Class A Group I Distribution Account............... 5
Class A Group II Distribution Account.............. 5
Class A Group III Distribution Account............. 5
Class A-1 Distribution Amount...................... 6
Class A-1 Group I Certificates..................... 6
Class A-1 Interest Carry-Forward Amount............ 6
Class A-1 Interest Distribution Amount............. 6
Class A-1 Pass-Through Rate........................ 6
Class A-1 Principal Balance........................ 6
Class A-1 Principal Distribution Amount............ 6
Class A-1 Termination Date......................... 7
Class A-2 Distribution Amount...................... 7
Class A-2 Group I Certificates..................... 7
Class A-2 Interest Carry-Forward Amount............ 7
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Page
Class A-2 Interest Distribution Amount............. 7
Class A-2 Pass-Through Rate........................ 7
Class A-2 Principal Balance........................ 7
Class A-2 Principal Distribution Amount............ 7
Class A-2 Termination Date......................... 8
Class A-3 Distribution Amount...................... 8
Class A-3 Group I Certificates..................... 8
Class A-3 Interest Carry-Forward Amount............ 8
Class A-3 Interest Distribution Amount............. 8
Class A-3 Pass-Through Rate........................ 8
Class A-3 Principal Balance........................ 8
Class A-3 Principal Distribution Amount............ 8
Class A-3 Termination Date......................... 9
Class A-4 Distribution Amount...................... 9
Class A-4 Group I Certificates..................... 9
Class A-4 Interest Carry-Forward Amount............ 9
Class A-4 Interest Distribution Amount............. 9
Class A-4 Pass-Through Rate........................ 9
Class A-4 Principal Balance........................ 9
Class A-4 Principal Distribution Amount............ 9
Class A-5 Distribution Amount...................... 10
Class A-5 Group I Certificates..................... 10
Class A-5 Interest Carry-Forward Amount............ 10
Class A-5 Interest Distribution Amount............. 10
Class A-5 Pass-Through Rate........................ 10
Class A-5 Principal Balance........................ 10
Class A-5 Principal Distribution Amount............ 10
Class A-6 Distribution Amount...................... 11
Class A-6 Formula Interest Shortfall............... 11
Class A-6 Formula Pass-Through Rate................ 11
Class A-6 Full Distribution Amount................. 11
Class A-6 Full Interest Distribution
Amount....................................... 11
Class A-6 Interest Carry-Forward Amount............ 11
Class A-6 Interest Distribution Amount............. 12
Class A-6 Pass-Through Rate........................ 12
Class A-6 Principal Balance........................ 12
Class A-6 Principal Distribution Amount............ 12
Class A-6 Group II Certificates.................... 12
Class A-7 Distribution Amount...................... 12
Class A-7 Formula Interest Shortfall............... 12
Class A-7 Formula Pass-Through Rate................ 12
Class A-7 Full Distribution Amount................. 12
Class A-7 Full Interest Distribution
Amount....................................... 12
Class A-7 Interest Carry-Forward Amount............ 13
Class A-7 Interest Distribution Amount............. 13
Class A-7 Pass-Through Rate........................ 13
Class A-7 Principal Balance........................ 13
Class A-7 Principal Distribution Amount............ 13
Class A-7 Group III Certificates................... 13
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Page
Class B Certificates............................... 13
Class B Carry-Forward Amount....................... 14
Class B Distribution Account....................... 14
Class B Distribution Amount........................ 14
Class B Interest................................... 14
Class B Interest Distribution Amount............... 14
Class B Principal Balance.......................... 15
Class B-S Certificate.............................. 15
Class LT-1 Certificates............................ 15
Class LT-2 Certificates............................ 15
Class LT-3 Certificates............................ 16
Class LT-4 Certificates............................ 16
Class LT-5 Certificates............................ 16
Class LT-6 Certificates............................ 16
Class LT-7 Certificates............................ 16
Class LT-8 Certificates............................ 16
Class LT-9 Certificates............................ 16
Class LT-10 Certificates........................... 16
Class LT-11 Certificates........................... 16
Class RL Certificates.............................. 16
Class RU Certificates.............................. 16
Code ............................................. 16
Compensating Interest.............................. 16
Coupon Rate........................................ 17
Cumulative Loss Percentage......................... 17
Cumulative Net Realized Losses..................... 17
Cut-Off Date....................................... 17
Delinquency Advance................................ 17
Delinquency Percentage............................. 17
Delinquent......................................... 17
Delivery Order..................................... 17
Depository......................................... 17
Designated Depository Institution.................. 17
Designated Residual Holder......................... 18
Determination Date................................. 18
Disqualified Organization.......................... 18
Distribution Accounts.............................. 18
Eligible Investments............................... 18
Event of Default................................... 18
Excess Spread Rate................................. 19
Excess Spread Trigger.............................. 19
FDIC ............................................. 19
FHLMC ............................................. 19
File ............................................. 19
First Mortgage Loan................................ 19
Fiscal Agent....................................... 19
FNMA ............................................. 19
Group ............................................. 20
Group I............................................ 20
Group I Allocable Losses........................... 20
Group I Available Funds............................ 20
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Page
Group I Certificates............................... 20
Group I Cumulative Net Realized Losses............. 20
Group I Excess Subordinated Amount................. 20
Group I Insured Distribution Amount................ 20
Group I Insured Interest Distribution
Amount....................................... 20
Group I Insured Payment............................ 21
Group I Insured Principal Distribution
Amount....................................... 21
Group I Interest Distribution Amount............... 21
Group I Interest Remittance Amount................. 21
Group I Monthly Remittance......................... 21
Group I Mortgage Loans............................. 21
Group I Pool Principal Balance..................... 21
Group I Premium Amount............................. 21
Group I Principal Distribution Amount.............. 22
Group I Principal Remittance Amount................ 22
Group I Shortfall Amount........................... 22
Group I Specified Subordinated Amount.............. 22
Group I Stepped Down Required
Subordinated Percentage...................... 22
Group I Subordinated Amount........................ 23
Group I Subordination Deficiency Amount............ 23
Group I Subordination Deficit...................... 23
Group I Subordination Increase Amount.............. 23
Group I Subordination Reduction Amount............. 23
Group I Total Available Funds...................... 24
Group I Trustee's Fee.............................. 24
Group II........................................... 24
Group II Allocable Losses.......................... 24
Group II Available Funds........................... 24
Group II Certificates.............................. 24
Group II Cumulative Net Realized Losses............ 24
Group II Excess Subordinated Amount................ 24
Group II Insured Distribution Amount............... 24
Group II Insured Interest Distribution
Amount....................................... 25
Group II Insured Payment........................... 25
Group II Insured Principal Distribution
Amount....................................... 25
Group II Interest Remittance Amount................ 25
Group II Monthly Remittance........................ 25
Group II Mortgage Loans............................ 25
Group II Pool Principal Balance.................... 25
Group II Premium Amount............................ 25
Group II Principal Distribution Amount............. 26
Group II Principal Remittance Amount............... 26
Group II Shortfall Amount.......................... 26
Group II Specified Subordinated Amount............. 26
Group II Stepped Down Required
Subordinated Percentage...................... 27
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Page
Group II Subordinated Amount....................... 27
Group II Subordination Deficiency
Amount....................................... 27
Group II Subordination Deficit..................... 27
Group II Subordination Increase Amount............. 27
Group II Subordination Reduction Amount............ 28
Group II Total Available Funds..................... 28
Group II Trustee's Fee............................. 28
Group III.......................................... 28
Group III Allocable Losses......................... 28
Group III Available Funds.......................... 28
Group III Certificates............................. 28
Group III Cumulative Net Realized
Losses....................................... 28
Group III Excess Subordinated Amount............... 28
Group III Insured Distribution Amount.............. 29
Group III Insured Interest Distribution
Amount....................................... 29
Group III Insured Payment.......................... 29
Group III Insured Principal Distribution
Amount....................................... 29
Group III Interest Remittance Amount............... 29
Group III Monthly Remittance....................... 29
Group III Mortgage Loans........................... 29
Group III Pool Principal Balance................... 29
Group III Premium Amount........................... 30
Group III Principal Distribution Amount............ 30
Group III Principal Remittance Amount.............. 30
Group III Shortfall Amount......................... 30
Group III Specified Subordinated Amount............ 30
Group III Stepped Down Required
Subordinated Percentage...................... 31
Group III Subordinated Amount...................... 31
Group III Subordination Deficiency
Amount....................................... 31
Group III Subordination Deficit.................... 31
Group III Subordination Increase Amount............ 32
Group III Subordination Reduction
Amount....................................... 32
Group III Total Available Funds.................... 32
Group III Trustee's Fee............................ 32
Highest Lawful Rate................................ 32
Insurance and Indemnity Agreement.................. 32
Indemnification Agreement.......................... 32
Insurance Policy................................... 32
Insurance Proceeds................................. 32
Insured Distribution Amount........................ 33
Insured Payment.................................... 33
Interest Advance................................... 33
Interest Advance Reimbursement Amount.............. 33
Interest Determination Date........................ 33
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Page
Late Payment Rate.................................. 33
LIBOR ............................................. 33
Liquidated Loan.................................... 33
Liquidation Expenses............................... 34
Liquidation Proceeds............................... 34
Loan Purchase Price................................ 34
Loan-to-Value Ratio................................ 34
London Business Day................................ 34
Lower Tier Distribution Amount..................... 34
Lower-Tier Interests............................... 35
Lower-Tier REMIC................................... 35
Lower Tier Required Subordinate Amount............. 35
Lower Tier Subordinated Amount..................... 35
Master Servicer.................................... 35
Master Servicer's Trust Receipt.................... 35
Master Servicing Fee............................... 35
Monthly Remittance................................. 35
Moody's............................................ 35
Mortgage........................................... 36
Mortgage Loan...................................... 36
Mortgage Loan Group................................ 36
Mortgage Loan Schedules............................ 36
Mortgagor.......................................... 36
Net Insurance Proceeds............................. 37
Net Liquidation Proceeds........................... 37
Net Pool Balance................................... 37
Net Proceeds....................................... 37
Net Realized Loss.................................. 37
Net Released Mortgage Property Proceeds............ 37
Net Weighted Average Coupon Rate................... 37
Nonrecoverable Advances............................ 37
Note ............................................. 38
Officer's Certificate.............................. 38
Operative Documents................................ 38
Original Group I Pool Principal Balance............ 38
Original Group II Pool Principal
Balance...................................... 38
Original Group III Pool Principal
Balance...................................... 38
Original Pool Principal Balance.................... 38
Original Principal Balance......................... 38
Outstanding........................................ 38
Owner ............................................. 39
Payment Date....................................... 39
Percentage Interest................................ 39
Person............................................. 39
Pool Delinquency Rate.............................. 39
Pool Principal Balance............................. 39
Pool Rolling Three Month Delinquency
Rate......................................... 39
Preference Amount.................................. 40
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Page
Premium Amount..................................... 41
Prepayment......................................... 41
Prepayment Interest Shortfalls..................... 41
Preservation Expenses.............................. 42
Principal and Interest Account..................... 42
Principal Balance.................................. 42
Principal Distribution Amount...................... 42
Principal Remittance Amounts....................... 42
Prohibited Transaction............................. 42
Property........................................... 42
Prospectus......................................... 42
Prospectus Supplement.............................. 42
Qualified Liquidation.............................. 42
Qualified Mortgage................................. 43
Qualified Replacement Mortgage..................... 43
Rating Agency...................................... 44
Record Date........................................ 44
Reference Banks.................................... 44
Register........................................... 44
Registration Statement............................. 44
Reimbursable Advances.............................. 44
Reimbursement Amount............................... 44
Released Mortgaged Property Proceeds............... 45
Relief Act Shortfalls.............................. 45
REMIC ............................................. 45
REMIC Provisions................................... 45
REMIC Trust........................................ 45
Remittance Date.................................... 45
Remittance Period.................................. 45
REO Property....................................... 45
Replacement Cut-Off Date........................... 46
Representation Letter.............................. 46
Reserve Interest Rate.............................. 46
Residual Certificate............................... 46
Rolling Delinquency Percentage..................... 46
Rolling Loss Percentage............................ 46
S&P ............................................. 46
Sale Agreement..................................... 46
Second Mortgage Loan............................... 46
Seller............................................. 47
Seller Optional Termination Date................... 47
Senior Lien........................................ 47
Servicing Advance.................................. 47
Servicing Standards................................ 47
Startup Day........................................ 47
Step-Down Cumulative Loss Test..................... 47
Step-Down Rolling Delinquency Test................. 47
Step-Down Rolling Loss Test........................ 47
Step-Down Trigger.................................. 47
Step-Up Cumulative Loss Test....................... 48
Step-Up Rolling Delinquency Test................... 48
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Page
Step-Up Rolling Loss Test.......................... 48
Step-Up Trigger.................................... 48
Sub-Servicer....................................... 48
Sub-Servicing Agreement............................ 48
Subordination Deficiency Amount.................... 48
Substitution Amount................................ 49
Supplemental Certificates.......................... 49
Supplemental Interest Payment Account.............. 49
Supplemental Interest Payment Amount............... 49
Supplemental Interest Trust........................ 49
Tax Matters Person................................. 49
Trigger Event...................................... 49
Trust ............................................. 49
Trust Estate....................................... 49
Trustee............................................ 50
Trustee's Fee...................................... 50
Underwriters....................................... 50
Underwriting Agreement............................. 50
Unregistered Certificate........................... 50
Upper-Tier REMIC................................... 50
1.2. Use of Words and Phrases................................. 50
1.3. Captions; Table of Contents.............................. 50
1.4. Opinions................................................. 50
1.5. Calculations............................................. 51
ARTICLE II THE TRUST.......................................... 51
2.1. Establishment of the Trust............................... 51
2.2. Office................................................... 51
2.3. Purpose and Powers....................................... 51
2.4. Appointment of the Trustee; Declaration of
Trust.............................................. 52
2.5. Expenses of the Trust.................................... 52
2.6. Ownership of the Trust................................... 52
2.7. Receipt of Trust Estate.................................. 52
2.8. Miscellaneous REMIC Provisions........................... 52
ARTICLE III REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE SELLER, THE MASTER
SERVICER AND THE TRANSFEROR; CONVEYANCE
OF MORTGAGE LOANS.................................. 55
3.1. Representations and Warranties of the
Seller, the Master Servicer and the
Transferor......................................... 55
3.2. Covenants of the Seller to Take Certain
Actions with Respect to the Mortgage
Loans in Certain Situations........................ 63
3.3. Conveyance of the Mortgage Loans and
Qualified Replacement Mortgages.................... 76
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Page
3.4. Acceptance by Trustee; Certain Substitutions
of Mortgage Loans; Certification by
Trustee............................................ 79
3.5. Cooperation Procedures................................... 82
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES.................. 82
4.1. Issuance of Certificates................................. 82
4.2. Sale of Certificates..................................... 82
ARTICLE V CERTIFICATES AND TRANSFER OF INTERESTS............. 83
5.1. Terms ................................................... 83
5.2. Forms ................................................... 83
5.3. Execution, Authentication and Delivery................... 84
5.4. Registration and Transfer of Certificates................ 84
5.5. Mutilated, Destroyed, Lost or Stolen
Certificates....................................... 87
5.6. Persons Deemed Owners.................................... 87
5.7. Cancellation............................................. 87
5.8. Limitation on Transfer of Ownership Rights............... 88
5.9. Assignment of Rights..................................... 89
ARTICLE VI COVENANTS.......................................... 89
6.1. Distributions............................................ 89
6.2. Money for Distributions to be Held in Trust;
Withholding........................................ 89
6.3. Protection of Trust Estate............................... 90
6.4. Performance of Obligations............................... 91
6.5. Negative Covenants....................................... 91
6.6. No Other Powers.......................................... 92
6.7. Limitation of Suits...................................... 92
6.8. Unconditional Rights of Owners to Receive
Distributions...................................... 93
6.9. Rights and Remedies Cumulative........................... 93
6.10. Delay or Omission Not Waiver............................ 93
6.11. Control by Owners....................................... 93
ARTICLE VII ACCOUNTS, FLOW OF FUNDS, DISTRIBUTIONS
AND REPORTS........................................ 94
7.1. Collection of Money...................................... 94
7.2. Establishment of Accounts................................ 94
7.3. Flow of Funds............................................ 94
7.4. Investment of Accounts................................... 99
7.5. Eligible Investments..................................... 99
7.6. Reports by Trustee.......................................101
7.7. Drawings under the Certificate Insurance
Policy and Reports by Trustee......................106
7.8. Allocation of Realized Losses............................107
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Page
7.9. Supplemental Interest Payments...........................107
ARTICLE VIII TERMINATION OF TRUST...............................109
8.1. Termination of Trust.....................................109
8.2. Termination Upon Option of the Seller....................109
8.3. Auction Sale.............................................110
8.4. Disposition of Proceeds..................................111
ARTICLE IX THE TRUSTEE........................................112
9.1. Certain Duties and Responsibilities......................112
9.2. Removal of Trustee for Cause.............................114
9.3. Certain Rights of the Trustee............................116
9.4. Not Responsible for Recitals or Issuance of
Certificates.......................................117
9.5. May Hold Certificates....................................117
9.6. Money Held in Trust......................................117
9.7. Compensation and Reimbursement...........................117
9.8. Corporate Trustee Required; Eligibility..................117
9.9. Resignation and Removal; Appointment of
Successor..........................................118
9.10. Acceptance of Appointment by Successor
Trustee............................................119
9.11. Merger, Conversion, Consolidation or
Succession to Business of the Trustee..............120
9.12. Reporting; Withholding..................................120
9.13. Liability of the Trustee................................121
9.14. Appointment of Co-Trustee or Separate
Trustee............................................121
ARTICLE X SERVICING AND ADMINISTRATION OF MORTGAGE
LOANS..............................................123
10.1. General Servicing Procedures............................123
10.2. Collection of Certain Mortgage Loan
Payments...........................................126
10.3. Sub-Servicing Agreements Between Master
Servicer and Sub-Servicers.........................126
10.4. Successor Sub-Servicers.................................127
10.5. Liability of Master Servicer............................127
10.6. No Contractual Relationship Between
Sub-Servicer and Trustee or the Owners.............127
10.7. Assumption or Termination of Sub-Servicing
Agreement by Trustee...............................127
10.8. Principal and Interest Account..........................128
10.9. Delinquency Advances and Servicing
Advances...........................................131
10.10. Compensating Interest..................................132
10.11. Maintenance of Insurance...............................132
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Page
10.12. Due-on-Sale Clauses; Assumption and
Substitution Agreements............................134
10.13. Realization Upon Defaulted Mortgage Loans..............135
10.14. Trustee to Cooperate; Release of Files.................137
10.15. Master Servicing Compensation..........................138
10.16. Annual Statement as to Compliance......................138
10.17. Annual Independent Certified Public
Accountants' Reports...............................139
10.18. Access to Certain Documentation and
Information Regarding the Mortgage
Loans; Confidentiality.............................139
10.19. Assignment of Agreement................................140
10.20. Inspections by Certificate Insurer and
Account Parties; Errors and Omissions
Insurance..........................................140
10.21. Financial Statements...................................140
10.22. REMIC..................................................141
10.23. The Designated Depository Institution..................141
10.24. Appointment of Custodian...............................141
ARTICLE XI EVENTS OF DEFAULT; REMOVAL OF MASTER
SERVICER; MERGER...................................141
11.1. Removal of Master Servicer; Resignation of
Master Servicer....................................141
11.2. Trigger Events; Removal of Master Servicer..............147
11.3. Merger, Conversion, Consolidation or
Succession to Business of Master
Servicer...........................................148
ARTICLE XII MISCELLANEOUS......................................148
12.1. Compliance Certificates and Opinions....................148
12.2. Form of Documents Delivered to the Trustee..............149
12.3. Acts of Owners..........................................150
12.4. Notices, etc. to Trustee................................150
12.5. Notices and Reports to Owners; Waiver of
Notices............................................150
12.6. Rules by Trustee and Seller.............................151
12.7. Successors and Assigns..................................151
12.8. Severability............................................151
12.9. Benefits of Agreement...................................151
12.10. Legal Holidays.........................................152
12.11. Governing Law..........................................152
12.12. Counterparts...........................................152
12.13. Usury..................................................152
12.14. Amendment..............................................152
12.15. REMIC Status; Taxes....................................154
12.16. Additional Limitation on Action and
Imposition of Tax..................................155
12.17. Appointment of Tax Matters Person......................156
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12.18. Reports to the Securities and Exchange
Commission.........................................156
12.19. Notices................................................156
12.20. Grant of Security Interest.............................158
12.21. Indemnification........................................159
ARTICLE XIII CERTAIN MATTERS REGARDING THE
CERTIFICATE INSURER................................162
13.1. Rights of the Certificate Insurer to
Exercise Rights of the Owners of the
Class A Certificates...............................162
13.2. Trustee to Act Solely with Consent of
the Certificate Insurer............................163
13.3. Trust Fund and Accounts Held for Benefit
of the Certificate Insurer.........................163
13.4. Claims Upon the Policy; Policy Payments
Account............................................163
13.5. Effects of Payments by the Certificate
Insurer............................................165
13.6. Notices to the Certificate Insurer.................165
13.7. Third-Party Beneficiary............................165
EXHIBIT A-1 -- Form of Class A-1 Group I Certificate
EXHIBIT A-2 -- Form of Class A-2 Group I Certificate
EXHIBIT A-3 -- Form of Class A-3 Group I Certificate
EXHIBIT A-4 -- Form of Class A-4 Group I Certificate
EXHIBIT A-5 -- Form of Class A-5 Group I Certificate
EXHIBIT A-6 -- Form of Class A-6 Group II Certificate
EXHIBIT A-7 -- Form of Class A-7 Group III Certificate
EXHIBIT B-1 -- Form of Class B Certificate
EXHIBIT B-2 -- Form of Class B-S Certificate
EXHIBIT C-1 -- Form of Class RL Certificate
EXHIBIT C-2 -- Form of Class RU Certificate
EXHIBIT D -- Form of Transfer Certificate
EXHIBIT E -- Form of Residual Certificate Tax Matters
Transfer Certificate
EXHIBIT F -- Form of Master Servicer's Trust Receipt
EXHIBIT G -- Form of Liquidation Report
EXHIBIT H -- Form of Delivery Order
EXHIBIT I -- Officer's Certificate
EXHIBIT J -- Form of Certificate Regarding Prepaid Loans
EXHIBIT K -- Form of Initial Trustee Certification
EXHIBIT L -- Form of Interim Trustee Certification
EXHIBIT M -- Form of Final Trustee Certification
EXHIBIT N -- Auction Procedures
EXHIBIT O -- Form of Trustee Request for Class A-6
Formula Interest Shortfall
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POOLING AND SERVICING AGREEMENT, relating to ACCESS FINANCIAL
MORTGAGE LOAN TRUST 1996-4, dated as of November 1, 1996, among ACCESS FINANCIAL
LENDING CORP., a Delaware corporation, as the seller (in such capacity, the
"Seller") and as the master servicer (in such capacity, the "Master Servicer"),
ACCESS FINANCIAL RECEIVABLES CORP., a Delaware corporation, as the transferor
(the "Transferor") and THE CHASE MANHATTAN BANK, a New York banking corporation,
in its capacity as trustee (the "Trustee").
WHEREAS, the Seller wishes to establish a trust and two sub-trusts
and provide for the allocation and sale of the beneficial interests therein and
the maintenance and distribution of the trust estate;
WHEREAS, the Seller has conveyed the Mortgage Loans to the
Transferor pursuant to the Sale Agreement;
WHEREAS, the Transferor wishes to convey the Mortgage Loans to the
Trust;
WHEREAS, the Master Servicer has agreed to service the Mortgage
Loans, which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates, when
executed and authenticated by the Trustee, valid instruments, and to make this
Agreement a valid agreement, in accordance with their and its terms, have been
done; and
WHEREAS, The Chase Manhattan Bank, a New York banking corporation,
is willing to serve in the capacity of Trustee hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Seller, the Master Servicer, the Transferor and
the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.1. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
"Account": The Certificate Account, each Principal and Interest
Account and each Distribution Account including any sub-Accounts created
pursuant to Section 7.2.
<PAGE>
"Accrual Period": With respect to the Class A-2 Group I, A-3 Group
I, A-4 Group I and A-5 Group I Certificates and any Payment Date, the period
from and including the second day of the calendar month immediately preceding
such Payment Date to and including the first day of the calendar month in which
such Payment Date occurs; with respect to the Class A-1 Group I , A-6 Group II
and A-7 Group III Certificates and any Payment Date, the period from and
including the prior Payment Date (or, in the case of the first Payment Date,
from and including the Startup Day) to and including the day immediately
preceding such Payment Date.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, as it may be
amended from time to time, and including the Exhibits hereto.
"Appraised Value": The appraised value of any Property based upon
the appraisal made at the time of the origination of the related Mortgage Loan,
or, in the case of a Mortgage Loan which is a purchase money mortgage, the sales
price of the Property at such time of origination, if such sales price is less
than such appraised value.
"Auction Sale": The Trustee's solicitation of bids for the purchase
of all Mortgage Loans in the Trust pursuant to Section 8.3 hereof.
"Authorized Officer": With respect to any Person, any person who is
authorized to act for such Person in matters relating to this Agreement, and
whose action is binding upon such Person and, with respect to the Seller, the
Master Servicer, the Transferor and the Trustee, initially including those
individuals whose names appear on the lists of Authorized Officers delivered on
the Startup Day.
"Available Funds": With respect to Group I, the Group I Available
Funds, with respect to Group II, the Group II Available Funds, and with respect
to Group III, the Group III Available Funds.
"Base Group I Principal Distribution Amount": As to any Payment
Date, an amount equal to (x) the sum, without duplication, of (i) the principal
portion of all scheduled and unscheduled payments received by the Master
2
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Servicer on the Group I Mortgage Loans during the related Remittance Period,
including any Prepayments and any Net Proceeds, (ii) the principal portion of
all Substitution Amounts and the principal portion of all Loan Purchase Prices
deposited into the Principal and Interest Accounts with respect to the Group I
Mortgage Loans on the related Remittance Date, and (iii) the proceeds received
by the Trustee with respect to the Group I Mortgage Loans in connection with any
termination of the Trust pursuant to Article VIII hereof, to the extent such
proceeds relate to principal, minus (y) the amount of any Group I Subordination
Reduction Amount for such Payment Date.
"Base Group II Principal Distribution Amount": As to any Payment
Date, an amount equal to (x) the sum, without duplication, of (i) the principal
portion of all scheduled and unscheduled payments received by the Master
Servicer on the Group II Mortgage Loans during the related Remittance Period,
including any Prepayments and any Net Proceeds, (ii) the principal portion of
all Substitution Amounts and the principal portion of all Loan Purchase Prices
deposited into the Principal and Interest Accounts with respect to the Group II
Mortgage Loans on the related Remittance Date, and (iii) the proceeds received
by the Trustee with respect to the Group II Mortgage Loans in connection with
any termination of the Trust pursuant to Article VIII hereof, to the extent such
proceeds relate to principal, minus (y) the amount of any Group II Subordination
Reduction Amount for such Payment Date.
"Base Group III Principal Distribution Amount": As to any Payment
Date, an amount equal to (x) the sum, without duplication, of (i) the principal
portion of all scheduled and unscheduled payments received by the Master
Servicer on the Group III Mortgage Loans during the related Remittance Period,
including any Prepayments and any Net Proceeds, (ii) the principal portion of
all Substitution Amounts and the principal portion of all Loan Purchase Prices
deposited into the Principal and Interest Accounts with respect to the Group III
Mortgage Loans on the related Remittance Date, and (iii) the proceeds received
by the Trustee with respect to the Group III Mortgage Loans in connection with
any termination of the Trust pursuant to Article VIII hereof, to the extent such
proceeds relate to principal, minus (y) the amount of any Group III
Subordination Reduction Amount for such Payment Date.
"Business Day": Any day that is not a Saturday, Sunday or other day
on which commercial banking institutions in the State of New York, the state in
which the principal corporate office or bank of the Master Servicer is located
or in the state in which the principal corporate trust office of the Trustee is
located, which initially is New York, New York are authorized or obligated by
3
<PAGE>
law or executive order to be closed.
"Certificate": Any one of the Class A-1 Group I Certificates, Class
A-2 Group I Certificates, Class A-3 Group I Certificates, Class A-4 Group I
Certificates, Class A-5 Group I Certificates, Class A-6 Group II Certificates,
Class A-7 Group III Certificates, Class B Certificates, Class B-S Certificates
or the Residual Certificates.
"Certificate Account": The account designated as the Certificate
Account pursuant to Section 7.2 hereof.
"Certificate Insurance Policy": The financial guaranty insurance
policy number 50525-N issued by the Certificate Insurer to the Trustee for the
benefit of the Owners of the Class A Certificates.
"Certificate Insurer": Financial Security Assurance Inc., a New York
monoline insurance company.
"Certificate Insurer Default": The existence and continuance of any
of the following:
(a) the Certificate Insurer shall have failed to make a required
payment when due under the Certificate Insurance Policy;
(b) the Certificate Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the United
States Bankruptcy Code, the New York State Insurance Law or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or any other competent regulatory authority shall have entered a final
and nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent, or receiver for the Certificate Insurer or for all or any material
portion of its property or (ii) authorizing the taking of possession by a
custodian, trustee, agent, or receiver of the Security Insurer or of all or any
material portion of its property.
"Certificate Insurer Premium Rate": 0.14% per annum.
4
<PAGE>
"Certificate Principal Balance": The Class A-1 Principal Balance,
the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4
Principal Balance, the Class A-5 Principal Balance, the Class A-6 Principal
Balance, the Class A-7 Principal Balance, the Class B Principal Balance, as the
case may be.
"Certificateholder": As of any date and with respect to any
Certificate, the Person in whose name such Certificate is registered on the
Register on such date.
"Class": All of the Class A-1 Group I Certificates, the Class A-2
Group I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the Class A- 6 Group II
Certificates, the Class A-7 Group III Certificates, the Class B Certificates, or
all of the Residual Certificates, as applicable.
"Class A Certificate Principal Balance": The sum of the Class A-1
Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal
Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance, the
Class A-6 Principal Balance and the Class A-7 Principal Balance.
"Class A Certificates": Collectively, the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates, the Class A-5 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates.
"Class A Distribution Account": The Class A Group I Distribution
Account, the Class A Group II Distribution Account or the Class A Group III
Distribution Account, as the case may be.
"Class A Group I Certificates": All of the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates and the Class A-5 Group I
Certificates.
"Class A Group I Distribution Account": The Class A Group I
Distribution Account created pursuant to Section 7.2 hereof.
"Class A Group II Distribution Account": The Class A Group II
Distribution Account created pursuant to Section 7.2 hereof.
"Class A Group III Distribution Account": The Class A Group III
Distribution Account created pursuant to Section 7.2 hereof.
5
<PAGE>
"Class A-1 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-1 Principal Distribution Amount for such Payment Date, (ii) the
Class A-1 Interest Distribution Amount for such Payment Date and (iii) the Class
A-1 Interest Carry-Forward Amount for such Payment Date.
"Class A-1 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-1 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-1 Group
I Certificates pursuant to Section 7.3(c)(i)(A) hereof on such immediately
preceding Payment Date and allocable to the Class A-1 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-1
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-1 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-1 Pass-Through
Rate on the Class A-1 Principal Balance immediately prior to such Payment Date.
"Class A-1 Pass-Through Rate": the lesser of (i) LIBOR as of the
second to last Business Day prior to the immediately preceding Payment Date (or
prior to the Startup Day, in the case of the initial Payment Date) plus 0.110%
per annum or (ii) the Net Weighted Average Coupon Rate for the Group I Mortgage
Loans for such Payment Date.
"Class A-1 Principal Balance": The original Class A-1 Principal
Balance of $32,500,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-1 Group I Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-1 Principal Distribution Amount": With respect to any
Payment Date on or prior to the Class A-1 Termination Date, an amount equal to
the lesser of (x) the Group I Principal Distribution Amount for such Payment
Date and (y) the amount necessary to reduce the Class A-1 Principal Balance (as
it was immediately prior to such Payment Date) to zero. On the Class A-1
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-1 Principal Balance shall be distributed as the initial principal
distribution on the Class A-2 Group I Certificates.
6
<PAGE>
"Class A-1 Termination Date": The Payment Date on which the Class
A-1 Principal Balance is reduced to zero.
"Class A-2 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-2 Principal Distribution Amount for such Payment Date, (ii) the
Class A-2 Interest Distribution Amount for such Payment Date and (iii) the Class
A-2 Interest Carry-Forward Amount for such Payment Date.
"Class A-2 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-2 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-2 Group
I Certificates pursuant to Section 7.3(c)(i)(B) hereof on such immediately
preceding Payment Date and allocable to the Class A-2 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-2
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-2 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-2 Pass-Through
Rate on the Class A-2 Principal Balance immediately prior to such Payment Date.
"Class A-2 Pass-Through Rate": 6.250% per annum.
"Class A-2 Principal Balance": The original Class A-2 Principal
Balance of $10,696,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-2 Group I Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-2 Principal Distribution Amount": With respect to any
Payment Date following the Class A-1 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-2 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-1
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-1 Principal Balance shall be distributed as the initial principal
distribution on the Class A-2 Group I Certificates. On the Class A-2 Termination
Date any portion of the Group I Principal Distribution Amount remaining on such
Payment Date following the reduction to zero of the Class A-2 Principal Balance
7
<PAGE>
shall be distributed as the initial principal distribution on the Class A-3
Group I Certificates.
"Class A-2 Termination Date": The Payment Date on which the Class
A-2 Principal Balance is reduced to zero.
"Class A-3 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-3 Principal Distribution Amount for such Payment Date, (ii) the
Class A-3 Interest Distribution Amount for such Payment Date and (iii) the Class
A-3 Interest Carry-Forward Amount for such Payment Date.
"Class A-3 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-3 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution made to the Owners of the Class A-3 Group
I Certificates pursuant to Section 7.3(c)(i)(C) hereof on such immediately
preceding Payment Date and allocable to the Class A-3 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-3
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-3 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-3 Pass-Through
Rate on the Class A-3 Principal Balance immediately prior to such Payment Date.
"Class A-3 Pass-Through Rate": 6.450% per annum.
"Class A-3 Principal Balance": The original Class A-3 Principal
Balance of $17,700,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-3 Group I Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-3 Principal Distribution Amount": With respect to any
Payment Date following the Class A-2 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-3 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-2
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-2 Principal Balance shall be distributed as the initial principal
distribution on the Class A-3 Group I Certificates. On the Class A-3
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Termination Date any portion of the Group I Principal Distribution Amount
remaining on such Payment Date following the reduction to zero of the Class A-3
Principal Balance shall be distributed as the initial principal distribution on
the Class A-4 Group I Certificates.
"Class A-3 Termination Date": The Payment Date on which the Class
A-3 Principal Balance is reduced to zero.
"Class A-4 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-4 Principal Distribution Amount for such Payment Date, (ii) the
Class A-4 Interest Distribution Amount for such Payment Date and (iii) the Class
A-4 Interest Carry-Forward Amount for such Payment Date.
"Class A-4 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-4 hereto.
"Class A-4 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-4 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-4 Group
I Certificates pursuant to Section 7.3(c)(i)(D) hereof on such immediately
preceding Payment Date and allocable to the Class A-4 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-4
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-4 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-4 Pass-Through
Rate on the Class A-4 Principal Balance immediately prior to such Payment Date.
"Class A-4 Pass-Through Rate": 6.775% per annum.
"Class A-4 Principal Balance": The original Class A-4 Principal
Balance of $18,500,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-4 Group I Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-4 Principal Distribution Amount": With respect to any
Payment Date following the Class A-3 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-4 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-3
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
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of the Class A-3 Principal Balance shall be distributed as the initial principal
distribution on the Class A-4 Group I Certificates. On the Class A-4 Termination
Date any portion of the Group I Principal Distribution Amount remaining on such
Payment Date following the reduction to zero of the Class A-4 Principal Balance
shall be distributed as the initial principal distribution on the Class A-5
Group I Certificates.
"Class A-5 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-5 Principal Distribution Amount for such Payment Date, (ii) the
Class A-5 Interest Distribution Amount for such Payment Date and (iii) the Class
A-5 Interest Carry-Forward Amount for such Payment Date.
"Class A-5 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-5 hereto.
"Class A-5 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-5 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-5 Group
I Certificates pursuant to Section 7.3(c)(i)(E) hereof on such immediately
preceding Payment Date and allocable to the Class A-5 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-5
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-5 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-5 Pass-Through
Rate on the Class A-5 Principal Balance immediately prior to such Payment Date.
"Class A-5 Pass-Through Rate": The lesser of (i) 7.150% per annum,
or if the Auction Sale has not occurred by the 90th day following the Seller
Optional Termination Date, 7.650% per annum for each Payment Date occurring
after such 90th day and (ii) the Net Weighted Average Coupon Rate for the Group
I Mortgage Loans for such Payment Date.
"Class A-5 Principal Balance": The original Class A-5 Principal
Balance of $15,017,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-5 Group I Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-5 Principal Distribution Amount": With respect to any
Payment Date following the Class A-4 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
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and (y) the amount necessary to reduce the Class A-5 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-4
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-4 Principal Balance shall be distributed as the initial principal
distribution on the Class A-5 Group I Certificates.
"Class A-6 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-6 Principal Distribution Amount for such Payment Date, (ii) the
Class A-6 Interest Distribution Amount for such Payment Date and (iii) the Class
A-6 Interest Carry-Forward Amount for such Payment Date.
"Class A-6 Formula Interest Shortfall": As defined in Section 7.9(a)
hereof.
"Class A-6 Formula Pass-Through Rate": As of any Payment Date, the
rate described in clause (i) of the definition of "Class A-6 Pass-Through Rate".
"Class A-6 Full Distribution Amount": With respect to any Payment
Date, the sum of (x) the Class A-6 Full Interest Distribution Amount for such
Payment Date and (y) the Class A-6 Principal Distribution Amount for such
Payment Date.
"Class A-6 Full Interest Distribution Amount": With respect to any
Payment Date, the Class A-6 Interest Distribution Amount for such Payment Date
calculated using the Class A-6 Formula Pass-Through Rate for such Payment Date
rather than the Class A-6 Pass-Through Rate for such Payment Date plus, if the
full amount of the Class A-6 Formula Interest Shortfall, if any, was not funded
on any prior Payment Date and remains unpaid on such Payment Date, such amount,
together with interest thereon (from the Payment Date on which such Class A-6
Formula Interest Shortfall was calculated) at the Class A-6 Formula Pass-Through
Rate for such Payment Date.
"Class A-6 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-6 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-6 Group
II Certificates pursuant to Section 7.3(c)(ii) hereof on such immediately
preceding Payment Date and allocable to the Class A-6 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-6
Pass-Through Rate from such immediately preceding Payment Date.
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"Class A-6 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-6 Pass-Through
Rate on the Class A-6 Principal Balance immediately prior to such Payment Date.
"Class A-6 Pass-Through Rate": With respect to any Payment Date and
Accrual Period, the lesser of (i) LIBOR as of the second to last Business Day
prior to the immediately preceding Payment Date (or prior to the Startup Day, in
the case of the initial Payment Date) plus 0.285% per annum, or (ii) the Net
Weighted Average Coupon Rate for the Group II Mortgage Loans less 0.50% for such
Payment Date.
"Class A-6 Principal Balance": The original Class A-6 Principal
Balance of $96,304,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-6 Group II Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-6 Principal Distribution Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group II Principal
Distribution Amount for such Payment Date and (y) the amount necessary to reduce
the Class A-6 Principal Balance (as it was immediately prior to such Payment
Date) to zero.
"Class A-6 Group II Certificates": Those certificates in
substantially the form set forth in Exhibit A-6 hereto.
"Class A-7 Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-7 Principal Distribution Amount for such Payment Date, (ii) the
Class A-7 Interest Distribution Amount for such Payment Date and (iii) the Class
A-7 Interest Carry-Forward Amount for such Payment Date.
"Class A-7 Formula Interest Shortfall": As defined in Section 7.9(a)
hereof.
"Class A-7 Formula Pass-Through Rate": As of any Payment Date, the
rate described in clause (i) of the definition of "Class A-7 Pass-Through Rate".
"Class A-7 Full Distribution Amount": With respect to any Payment
Date, the sum of (x) the Class A-7 Full Interest Distribution Amount for such
Payment Date and (y) the Class A-7 Principal Distribution Amount for such
Payment Date.
"Class A-7 Full Interest Distribution Amount": With respect to any
Payment Date, the Class A-7 Interest Distribution Amount for such Payment Date
calculated using the Class A-7 Formula Pass-Through Rate for such Payment Date
rather than the Class A-7 Pass-Through Rate for such Payment Date plus, if the
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full amount of the Class A-7 Formula Interest Shortfall, if any, was not funded
on any prior Payment Date and remains unpaid on such Payment Date, such amount,
together with interest thereon (from the Payment Date on which such Class A-7
Formula Interest Shortfall was calculated) at the Class A-7 Formula Pass-Through
Rate for such Payment Date.
"Class A-7 Interest Carry-Forward Amount": As of any Payment Date,
the sum of (i) the amount, if any, by which (x) the Class A-7 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, made to the Owners of the Class A-7 Group
III Certificates pursuant to Section 7.3(c)(iii) hereof on such immediately
preceding Payment Date and allocable to the Class A-7 Interest Distribution
Amount on such immediately preceding Payment Date and (ii) interest on the
amount, if any, described in clause (i) at one-twelfth of the Class A-7
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-7 Interest Distribution Amount": As of any Payment Date,
interest accrued during the related Accrual Period at the Class A-7 Pass-Through
Rate on the Class A-7 Principal Balance immediately prior to such Payment Date.
"Class A-7 Pass-Through Rate": With respect to any Payment Date and
Accrual Period, the lesser of (i) LIBOR as of the second to last Business Day
prior to the immediately preceding Payment Date (or prior to the Startup Day, in
the case of the initial Payment Date) plus 0.275% per annum, or (ii) the Net
Weighted Average Coupon Rate for the Group III Mortgage Loans less 0.50% for
such Payment Date.
"Class A-7 Principal Balance": The original Class A-7 Principal
Balance of $49,048,000 reduced by the sum of all amounts previously distributed
to the Owners of the Class A-7 Group III Certificates in respect of principal on
all previous Payment Dates, but shall not be reduced below zero.
"Class A-7 Principal Distribution Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group III Principal
Distribution Amount for such Payment Date and (y) the amount necessary to reduce
the Class A-7 Principal Balance (as it was immediately prior to such Payment
Date) to zero.
"Class A-7 Group III Certificates": Those certificates in
substantially the form set forth in Exhibit A-7 hereto.
"Class B Certificates": Those certificates in substantially the form
set forth in Exhibit B-1 hereto.
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"Class B Carry-Forward Amount": As of any Payment Date, the amount,
if any, by which (x) the Class B Distribution Amount as of the immediately
preceding Payment Date exceeded (y) the amount of the actual distribution to the
Owners of the Class B Certificates made pursuant to Section 7.3(c)(iv) hereof on
such immediately preceding Payment Date.
"Class B Distribution Account": The Class B Distribution Account
created pursuant to Section 7.2 hereof.
"Class B Distribution Amount": As of any Payment Date, the sum of
(i) the Class B Interest Distribution Amount for such Payment Date, (ii) the
Group I Subordination Reduction Amount for such Payment Date, the Group II
Subordination Reduction Amount and the Group III Subordination Reduction Amount,
if any, described in Section 7.3(b)(iii)(E) hereof and (iv) the Class B
Carry-Forward Amount, if any, as of such Payment Date.
"Class B Interest": As of any Payment Date, the product of (x) the
Class B Pass-Through Rate, times the actual number of days in the related
Remittance Period divided by 365 (or 366, as appropriate), and (y) the Net Pool
Balance as of the opening of business on the first day of such Remittance
Period.
"Class B Interest Distribution Amount": As of any Payment Date, the
Class B Interest for such Payment Date minus the sum of (i) the amount of any
Group I Subordination Increase Amount actually paid to the Owners of the Class A
Group I Certificates on such Payment Date as all or a portion of (x) the Group I
Insured Distribution Amount on such Payment Date, pursuant to Section
7.3(b)(iii)(B) hereof or (y) the Group I Subordination Increase Amount on such
Payment Date pursuant to Section 7.3(b)(iii)(E) hereof, (ii) the amount of any
Class B Interest actually paid to the Owners of the Class A-6 Group II
Certificates as all or a portion of (x) the Group II Insured Distribution Amount
on such Payment Date, pursuant to Section 7.3(b)(iii)(B) hereof or (y) the
portion of any Group II Subordination Increase Amount allocated to the Class A
Group II Distribution Account with respect to a Group II Subordination
Deficiency on such Payment Date, pursuant to Section 7.3(b)(iii)(E) hereof, and
(iii) the amount of any Class B Interest actually paid to the Owners of the
Class A-7 Group III Certificates as all or a portion of (x) the Group III
Insured Distribution Amount on such Payment Date, pursuant to Section
7.3(b)(iii)(B) hereof or (y) the portion of any Group III Subordination Increase
Amount allocated to the Class A Group III Distribution Account with respect to a
Group III Subordination Deficiency on such Payment Date, pursuant to Section
7.3(b)(iii)(E) hereof.
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<PAGE>
"Class B Pass-Through Rate": With respect to any Payment Date, the
weighted average of the interest rates borne by the LT-1, LT-2, LT-3, LT-4,
LT-5, LT-7 and LT-9 Lower Tier Interests for the immediately preceding
Remittance Period minus two times the weighted average of the interest rates
borne by the LT-6, LT-8, LT-10, and LT-11 Lower Tier Interests for such
Remittance Period, with the rate on the LT-11 Lower Tier Interest deemed to be
zero for purposes of this calculation.
"Class B Principal Balance": As of the Startup Day, zero. The Class
B Principal Balance shall be (x) increased on each Payment Date by the amounts,
if any, of the Class B Interest (i) actually paid to the Owners of the Class A
Group I Certificates on such Payment Date as all or a portion of the Group I
Principal Distribution Amount or as all or a portion of the Group I
Subordination Increase Amount on such Payment Date pursuant to Sections
7.3(b)(iii)(A) and 7.3(b)(iii)(E) hereof, (ii) actually paid to the Owners of
the Class A-6 Group II Certificates on such Payment Date as all or a portion of
the Group II Principal Distribution Amount or as all or a portion of the Group
II Subordination Deficiency Amount on such Payment Date, pursuant to Sections
7.3(b)(iii)(A) and 7.3(b)(iii)(E) hereof and (iii) actually paid to the Owners
of the Class A-7 Group III Certificates on such Payment Date as all or a portion
of the Group III Principal Distribution Amount or as all or a portion of the
Group III Subordination Deficiency Amount on such Payment Date, pursuant to
Sections 7.3(b)(iii)(A) and 7.3(b)(iii)(E) hereof and (y) decreased on each
Payment Date by the amounts of (i) any Group I Subordination Reduction Amount,
any Group II Subordination Reduction Amount or any Group III Subordination
Reduction Amount paid to the Owners of the Class B Certificates on such Payment
Date pursuant to Section 7.3(b)(iii)(G) hereof and (ii) the amount of any Group
I Allocable Losses, Group II Allocable Losses and Group III Allocable Losses
allocated as a reduction of the Class B Principal Balance on such Payment Date
pursuant to Section 7.8(a) hereof. The Class B Principal Balance shall in no
event be less than zero.
"Class B-S Certificate": Any of those Certificates representing the
right to receive excess amounts in the Supplemental Interest Payment Account,
and designated as a "Class B-S Certificate" on the face thereof, in the form of
Exhibit B-2 hereto.
"Class LT-1 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-2 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
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"Class LT-3 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-4 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-5 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-6 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-7 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-8 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-9 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-10 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class LT-11 Certificates": The uncertificated class of interests in
the Lower-Tier REMIC, as described in and designated in Section 2.8 hereof.
"Class RL Certificates": Those certificates representing certain
residual rights to distributions from the Lower-Tier REMIC in substantially the
form set forth as Exhibit C-1 hereto.
"Class RU Certificates": Those certificates representing certain
residual rights to distributions from the Upper-Tier REMIC in substantially the
form set forth as Exhibit C-2 hereto.
"Code": The Internal Revenue Code of 1986, as amended.
"Compensating Interest": As defined in Section 10.10 of this
Agreement.
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"Coupon Rate": With respect to any Note and Remittance Period, the
rate of interest borne by such Note at the opening of business on the first day
of such Remittance Period.
"Cumulative Loss Percentage": As to any Payment Date and the
Mortgage Loans, the percentage equivalent of the fraction obtained by dividing
(i) the Cumulative Net Realized Losses by (ii) the Original Pool Principal
Balance.
"Cumulative Net Realized Losses": As of any Payment Date, the sum of
all Net Realized Losses with respect to the Mortgage Loans experienced on all
prior Payment Dates.
"Cut-Off Date": The close of business on November 1, 1996.
"Delinquency Advance": As defined in Section 10.9(a) of this
Agreement.
"Delinquency Percentage": As of the last day of any Remittance
Period and with respect to the Mortgage Loans, the percentage equivalent of a
fraction, the numerator of which is equal to the aggregate Principal Balances of
all Mortgage Loans that are 60 or more days delinquent, in foreclosure or
converted to REO Properties as of such last day of such Remittance Period, and
the denominator of which is the Pool Principal Balance as of the last day of
such Remittance Period.
"Delinquent": A Mortgage Loan is "delinquent" if any payment due
thereon is not made by the close of business on the day such payment is
scheduled to be due. A Mortgage Loan is "30 days delinquent" if such payment has
not been received by the close of business on the corresponding day of the month
immediately succeeding the month in which such payment was due, or, if there is
no such corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month) then on the last day
of such immediately succeeding month. Similarly for "60 days delinquent," "90
days delinquent" and so on.
"Delivery Order": The Delivery Order from the Seller to the Trustee
directing the Trustee to issue the Certificates on the Startup Day, in
substantially the form of Exhibit H hereto.
"Depository": The Depository Trust Company, 55 Water Street, New
York, New York 10041, and any successor depository hereafter named.
"Designated Depository Institution": With respect to any Account, an
institution whose deposits are insured by the Bank Insurance Fund or the Savings
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Association Insurance Fund of the FDIC, the long-term deposits of which shall be
rated A or better by S&P and A1 or better by Moody's and in one of the two
highest short-term rating categories by S&P and the highest short-term rating
category by Moody's, unless otherwise approved in writing by the Certificate
Insurer, and which is any of the following: (i) a federal savings and loan
association duly organized, validly existing and in good standing under the
federal banking laws, (ii) an institution duly organized, validly existing and
in good standing under the applicable banking laws of any state, (iii) a
national banking association duly organized, validly existing and in good
standing under the federal banking laws, (iv) a principal subsidiary of a bank
holding company meeting the standards of (i)-(iii) above, or (v) approved in
writing by the Certificate Insurer and the Rating Agencies and, in each case
acting or designated by the Master Servicer or the Trustee as the depository
institution for such Account; provided, however, that any such institution,
association or subsidiary shall have combined capital, surplus and individual
profits of at least $100,000,000. Notwithstanding the foregoing, an Account may
be held by an institution otherwise meeting the preceding requirements except
that the only applicable rating requirement shall be that the unsecured and
uncollateralized debt obligations thereof shall be rated Baa2 or better by
Moody's and BBB or better by S&P if such institution has capital and surplus of
not less than $50,000,000 and has trust powers and the Account is held by such
institution in its trust capacity and not in its commercial capacity.
"Designated Residual Holder": Access Financial Receivables Corp.
"Determination Date": The second Business Day preceding each Payment
Date.
"Disqualified Organization": "Disqualified Organization" shall have
the meaning set forth from time to time in the definition thereof at Section
860E(e)(5) of the Code (or any successor statute thereto) and applicable to the
Trust.
"Distribution Accounts": The Class A Group I Distribution Account,
the Class A Group II Distribution Account, the Class A Group III Distribution
Account and the Class B Distribution Account.
"Eligible Investments": Those investments so designated pursuant to
Section 7.5 hereof.
"ERISA": As defined in Section 5.8(a) hereof.
"Event of Default": As defined in Section 11.1 of this Agreement.
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"Excess Spread Rate": With respect to any Group II Mortgage Loan and
for any Payment Date, the Coupon Rate thereof as of the beginning of the related
Remittance Period minus the sum of (i) the rate at which the Master Servicing
Fee is calculated, (ii) the rate at which the Trustee's Fees are calculated,
(iii) the Class A-6 Pass-Through Rate applicable to such Payment Date and (iv)
the product of (A) the related Certificate Insurer Premium Rate and (B) a
fraction, the numerator of which is the Class A-6 Principal Balance and the
denominator of which is the Group II Pool Principal Balance. With respect to any
Group III Mortgage Loan and for any Payment Date, the Coupon Rate thereof as of
the beginning of the related Remittance Period minus the sum of (i) the rate at
which the Master Servicing Fee is calculated, (ii) the rate at which the
Trustee's Fees are calculated, (iii) the Class A-7 Pass-Through Rate applicable
to such Payment Date and (iv) the product of (A) the related Certificate Insurer
Premium Rate and (B) a fraction, the numerator of which is the Class A-7
Principal Balance and the denominator of which is the Group III Pool Principal
Balance.
"Excess Spread Trigger": For any Distribution Date following the 6th
Distribution Date, an Excess Spread Trigger will have occurred if the weighted
average Excess Spread Rate for the Mortgage Loans in Groups II and III is less
than 300 basis points.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
"File": The documents pertaining to a particular Mortgage Loan
pursuant to Section 3.3(b) hereof and any additional documents required to be
added to the File pursuant to this Agreement.
"First Mortgage Loan": A Mortgage Loan which constitutes a first
priority mortgage lien with respect to any Property as indicated on the Mortgage
Loan Schedules.
"Fiscal Agent": As defined in the Insurance Agreement.
"FNMA": The Federal National Mortgage Association, a
federally-chartered and privately-owned corporation existing under the Federal
National Mortgage Association Charter Act, as amended, or any successor thereof.
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"Group": Group I, Group II or Group III, as the case may be.
"Group I": The group of Mortgage Loans that are the Group I Mortgage
Loans.
"Group I Allocable Losses": As defined in Section 7.8(a) hereof.
"Group I Available Funds": As of any Payment Date, the amount on
deposit in the Certificate Account with respect to the Group I Mortgage Loans on
such Payment Date after making the deposits to the Certificate Account pursuant
to Sections 7.3(a)(i) hereof on such Payment Date. The term "Group I Available
Funds" does not include Insured Payments and does not include any amounts that
cannot be distributed to the Owners of the Certificates by the Trustee as a
result of proceedings under the United States Bankruptcy Code.
"Group I Certificates": Any of the Class A-1 Group I Certificates,
the Class A-2 Group I Certificates, the Class A-3 Group I Certificates, the
Class A-4 Group I Certificates, and the Class A-5 Group I Certificates.
"Group I Cumulative Net Realized Losses": As of any Payment Date,
the sum of all Net Realized Losses with respect to the Group I Mortgage Loans
experienced on all prior Payment Dates.
"Group I Excess Subordinated Amount": With respect to any Payment
Date, the excess, if any, of (x) the Group I Subordinated Amount that would
apply on such Payment Date after taking into account the payment of the Group I
Principal Distribution Amount on such Payment Date (except for any distributions
of related Group I Subordination Reduction Amounts on such Payment Date) over
(y) the Group I Specified Subordinated Amount for such Payment Date.
"Group I Insured Distribution Amount": With respect to any Payment
Date, the sum of (i) Group I Insured Interest Distribution Amount for such
Payment Date and (ii) the Group I Insured Principal Distribution Amount for such
Payment Date.
"Group I Insured Interest Distribution Amount": With respect to any
Payment Date, the sum of (i) the Class A-1 Interest Distribution Amount, (ii)
the Class A-2 Interest Distribution Amount, (iii) the Class A-3 Interest
Distribution Amount, (iv) the Class A-4 Interest Distribution Amount, (v) the
Class A-5 Interest Distribution Amount, (vi) the Class A-1 Interest
Carry-Forward Amount, (vii) the Class A-2 Interest Carry-Forward Amount, (viii)
the Class A-3 Interest Carry-Forward Amount, (ix) the Class A-4 Interest
Carry-Forward Amount and (x) the Class A-5 Interest Carry-Forward Amount, in
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each case for such Payment Date, less any Prepayment Interest Shortfalls or
Relief Act Shortfalls.
"Group I Insured Payment": As of any Payment Date, the sum of (x)
the Group I Shortfall Amount for such Payment Date and (y) any Preference
Amounts with respect to the Group I Certificates with respect to which the
affected Owners have complied with the provisions of Section 7.3(g) hereof
during the related Remittance Period.
"Group I Insured Principal Distribution Amount": With respect to any
Payment Date, the Group I Subordination Deficit for such Payment Date.
"Group I Interest Distribution Amount": As of any Payment Date, the
sum of the Class A-1 Interest Distribution Amount, the Class A-2 Interest
Distribution Amount, the Class A-3 Interest Distribution Amount, the Class A-4
Interest Distribution Amount and the Class A-5 Interest Distribution Amount.
"Group I Interest Remittance Amount": For any Remittance Date, the
amount equal to (x) the sum, without duplication, of (i) the aggregate interest
portions of the payments (whether or not collected) becoming due on the Group I
Mortgage Loans during the immediately preceding Remittance Period and (ii)
Compensating Interest with respect to the Group I Mortgage Loans minus (y) the
aggregate Master Servicing Fee due to the Master Servicer with respect to Group
I Mortgage Loans for such Remittance Period to the extent not previously paid
to, or withheld by, the Master Servicer.
"Group I Monthly Remittance": The sum of (i) the Group I Interest
Remittance Amount and the Group I Principal Remittance Amount required to be
remitted to the Trustee on each Remittance Date and (ii) the amount of any
Substitution Amounts and Loan Purchase Prices on deposit in the Principal and
Interest Account with respect to the Group I Mortgage Loans on such Remittance
Date.
"Group I Mortgage Loans": The Mortgage Loans held by the Trust and
assigned to Group I, as indicated on the related Mortgage Loan Schedule, as
supplemented and amended from time to time.
"Group I Pool Principal Balance": As of any date of determination,
the aggregate Principal Balances of all of the Group I Mortgage Loans as of the
close of business on such date.
"Group I Premium Amount": With respect to each Payment Date, an
amount equal to the product of (x) one twelfth of the Certificate Insurer
Premium Rate and (y) the sum of the Certificate Principal Balances of the Class
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A Group I Certificates as of the close of business on the last day of the
preceding Remittance Period.
"Group I Principal Distribution Amount": As of any Payment Date, the
lesser of (A) the Group I Total Available Funds less the Group I Interest
Distribution Amount, the Group I Trustee's Fee and the Group I Premium Amount
and (B) the sum of (i) the Base Group I Principal Distribution Amount, (ii) the
Group I Subordination Deficit, and (iii) the Group I Subordination Increase
Amount.
"Group I Principal Remittance Amount": For any Remittance Date,
without duplication, the amount equal to the sum of (i) the aggregate principal
portions of the payments received by the Master Servicer with respect to the
Group I Mortgage Loans during the immediately preceding Remittance Period and
(ii) any Prepayments, Net Proceeds (but only to the extent that such Net
Proceeds do not exceed the Principal Balance of the related Mortgage Loan), in
each case described in clauses (i) and (ii) only to the extent collected on the
Group I Mortgage Loans during the preceding Remittance Period.
"Group I Shortfall Amount": As of any Payment Date, the excess, if
any, of (x) the Group I Insured Distribution Amount, as of such Payment Date on
such Payment Date on account of its subrogation rights over (y) the Group I
Total Available Funds on deposit in the Class A Group I Distribution Account on
such Payment Date.
"Group I Specified Subordinated Amount": With respect to Group I and
any Payment Date, an amount equal to (i) 2.75% of the Original Group I Pool
Principal Balance or (ii) if the Step-Up Trigger has occurred, an amount equal
to 100% of the aggregate Principal Balance of the Group I Mortgage Loans or
(iii) if the Step-Up Trigger has not occurred but the Step-Down Trigger has
occurred, an amount equal to the greater of (a) 0.50% of the Original Group I
Pool Principal Balance and (b) the Group I Stepped Down Required Subordinated
Percentage of the aggregate Principal Balance of the Group I Mortgage Loans as
of such Payment Date.
"Group I Stepped Down Required Subordinated Percentage": With
respect to Group I and any Payment Date for which the Step-Down Trigger has
occurred, a percentage equal to (i) the percentage equivalent of a fraction, the
numerator of which is 2.75% of the Original Group I Pool Principal Balance, and
the denominator of which is the aggregate Principal Balance of the Group I
Mortgage Loans as of such Payment Date, minus (ii) the percentage equivalent of
a fraction, the numerator of which is the product of (A) the percentage
calculated under clause (i) above minus 5.50%, multiplied by (B) the number of
consecutive Payment Dates through and including the Payment Date for which
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the Group I Stepped Down Required Subordinated Percentage is being calculated,
up to a maximum of six, for which the Step-Down Trigger has occurred, and the
denominator of which is six.
"Group I Subordinated Amount": With respect to any Payment Date, the
excess, if any, of (x) the Group I Pool Principal Balance as of the close of
business on the last day of the preceding Remittance Period over (y) the sum of
the Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3
Principal Balance, the Class A-4 Principal Balance and the Class A-5 Principal
Balance as of such Payment Date (after taking into account the payment on such
Payment Date of the Group I Principal Distribution Amount, except for any
portions thereof related to payment of Group I Insured Payments applied as
payments of the Group I Principal Distribution Amount on such Payment Date or on
any prior Payment Date and not previously reimbursed to the Certificate Insurer
pursuant to Section 7.3 hereof).
"Group I Subordination Deficiency Amount": As of any Payment Date,
the excess, if any, of (i) the Group I Specified Subordinated Amount applicable
to such Payment Date over (ii) the Group I Subordinated Amount applicable to
such Payment Date prior to taking into account the payment of any related Group
I Subordination Increase Amounts on such Payment Date.
"Group I Subordination Deficit": As of any Payment Date, the excess,
if any, of (x) the sum of the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal
Balance and the Class A-5 Principal Balance after taking into account the amount
otherwise payable as the Group I Principal Distribution Amount on such Payment
Date (i.e., the sum of (i) the Base Group I Principal Distribution Amount and
(ii) the Group I Subordination Increase Amount, over (y) the Group I Pool
Principal Balance as of the close of business on the last day of the preceding
Remittance Period.
"Group I Subordination Increase Amount": With respect to any Payment
Date, the lesser of (x) the Group I Subordination Deficiency Amount as of such
Payment Date and (y) the portion of the Class B Interest allocable to Group I
pursuant to Section 7.3(b)(iii)(E) as of such Payment Date.
"Group I Subordination Reduction Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group I Excess
Subordinated Amount and (y) the amount described in clause (x) of the definition
of Base Group I Principal Distribution Amount, in each case as of such Payment
Date.
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"Group I Total Available Funds": As of any Payment Date, the amount
on deposit in the Class A Group I Distribution Account on such Payment Date
after making the allocations, transfers and disbursements from the Certificate
Account pursuant to Section 7.3(b) hereof on such Payment Date. The term "Group
I Total Available Funds" does not include Insured Payments and does not include
any amounts that cannot be distributed to the Owners of the Certificates by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
"Group I Trustee's Fee": With respect to any Payment Date, the
product of (i) one-twelfth of 0.0075% and (ii) the Group I Pool Principal
Balance as of the last day of the preceding Remittance Period.
"Group II": The group of Mortgage Loans that are the Group II
Mortgage Loans.
"Group II Allocable Losses": As defined in Section 7.8(b) hereof.
"Group II Available Funds": As of any Payment Date, the amount on
deposit in the Certificate Account with respect to the Group II Mortgage Loans
on such Payment Date after making the deposit to the Certificate Account
pursuant to Section 7.3(a)(ii) hereof on such Payment Date. The term "Group II
Available Funds" does not include Insured Payments and does not include any
amounts that cannot be distributed to the Owners of the Certificates by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
"Group II Certificates": Any of the Class A-6 Group II Certificates.
"Group II Cumulative Net Realized Losses": As of any Payment Date,
the sum of all Net Realized Losses with respect to the Group II Mortgage Loans
experienced on all prior Payment Dates.
"Group II Excess Subordinated Amount": With respect to any Payment
Date, the excess, if any, of (x) the Group II Subordinated Amount that would
apply on such Payment Date after taking into account the payment of the Group II
Principal Distribution Amount on such Payment Date (except for any distributions
of related Group II Subordination Reduction Amounts on such Payment Date) over
(y) the Group II Specified Subordinated Amount for such Payment Date.
"Group II Insured Distribution Amount": With respect to any Payment
Date, the sum of (i) Group II Insured Interest Distribution Amount for such
Payment Date and (ii) the Group II Insured Principal Distribution Amount for
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such Payment Date.
"Group II Insured Interest Distribution Amount": With respect to any
Payment Date, the sum of (i) the Class A-6 Interest Distribution Amount and (ii)
the Class A-6 Interest Carry-Forward Amount, less any Prepayment Interest
Shortfalls or Relief Act Shortfalls.
"Group II Insured Payment": As of any Payment Date, the sum of (x)
the Group II Shortfall Amount for such Payment Date and (y) any Preference
Amounts with respect to the Class A-6 Group II Certificates with respect to
which the affected Owners have complied with the provisions of Section 7.3(g)
hereof during the related Remittance Period.
"Group II Insured Principal Distribution Amount": With respect to
any Payment Date, the Group II Subordination Deficit for such Payment Date.
"Group II Interest Remittance Amount": For any Remittance Date, the
amount equal to (x) the sum, without duplication, of (i) the aggregate interest
portions of the payments (whether or not collected) becoming due on the Group II
Mortgage Loans during the immediately preceding Remittance Period and (ii)
Compensating Interest with respect to the Group II Mortgage Loans minus (y) the
aggregate Master Servicing Fee due to the Master Servicer with respect to the
Group II Mortgage Loans for such Remittance Period to the extent not previously
paid to, or withheld by, the Master Servicer.
"Group II Monthly Remittance": The sum of (i) the Group II Interest
Remittance Amount and the Group II Principal Remittance Amount required to be
remitted to the Trustee on each Remittance Date and (ii) the amount of any
Substitution Amounts and Loan Purchase Prices on deposit in the Principal and
Interest Account with respect to the Group II Mortgage Loans on such Remittance
Date.
"Group II Mortgage Loans": The Mortgage Loans held by the Trust and
assigned to Group II, as indicated on the related Mortgage Loan Schedule, as
supplemented and amended from time to time.
"Group II Pool Principal Balance": As of any date of determination,
the aggregate Principal Balances of all of the Group II Mortgage Loans as of the
close of business on such date.
"Group II Premium Amount": With respect to each Payment Date, an
amount equal to the product of (x) one twelfth of the Certificate Insurer
Premium Rate and (y) the Certificate Principal Balance of the Class A-6 Group
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II Certificates as of the close of business on the last day of the preceding
Remittance Period.
"Group II Principal Distribution Amount": As of any Payment Date,
the lesser of (A) the Group II Total Available Funds less the Group II Interest
Distribution Amount, the Group II Trustee's Fee and the Group II Premium Amount
and (B) the sum of (i) the Base Group II Principal Distribution Amount, (ii) the
Group II Subordination Deficit, and (iii) the Group II Subordination Increase
Amount in each case for such Payment Date.
"Group II Principal Remittance Amount": For any Remittance Date,
without duplication, the amount equal to the sum of (i) the aggregate principal
portions of the payments received by the Master Servicer with respect to the
Group II Mortgage Loans during the immediately preceding Remittance Period and
(ii) any Prepayments, Net Proceeds (but only to the extent that such Net
Proceeds do not exceed the Principal Balance of the related Mortgage Loan), in
each case described in clauses (i) and (ii) only to the extent collected on the
Group II Mortgage Loans during the preceding Remittance Period.
"Group II Shortfall Amount": As of any Payment Date, the excess, if
any, of (x) the Group II Insured Distribution Amount, as of such Payment Date,
owed to the Certificate Insurer on such Payment Date on account of its
subrogation rights over (y) the Group II Total Available Funds on deposit in the
Class A-6 Group II Distribution Account on such Payment Date.
"Group II Specified Subordinated Amount": With respect to Group II
and any Payment Date on which an Excess Spread Trigger has not occurred, an
amount equal to (i) 3.50% of the Original Group II Pool Principal Balance, or
(ii) if the Step-Up Trigger has occurred, an amount equal to 100% of the
aggregate Principal Balance of the Group II Mortgage Loans or (iii) if the
Step-Up Trigger has not occurred but the StepDown Trigger has occurred, an
amount equal to the greater of (a) 0.50% of the Original Group II Pool Principal
Balance and (b) the Group II Stepped Down Required Subordinated Percentage of
the aggregate Loan Balance of the related Mortgage Loans as of such Payment
Date. Notwithstanding the foregoing, if an Excess Spread Trigger has occurred,
the Group II Specified Subordinated Amount for such Payment Date shall be the
sum of (a) the Group II Specified Subordinated Amount otherwise obtained
hereunder and (b) the product of (i) three times the excess of (A) 300 basis
points over (B) the weighted average Excess Spread Rate for the Group II
Mortgage Loans for such Payment Date, and (ii) the Original Group II Pool
Principal Balance.
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"Group II Stepped Down Required Subordinated Percentage": With
respect to Group II and any Payment Date for which the Step-Down Trigger has
occurred, a percentage equal to (i) the percentage equivalent of a fraction, the
numerator of which is 3.50% of the Original Group II Pool Principal Balance, and
the denominator of which is the aggregate Principal Balance of the Group II
Mortgage Loans as of such Payment Date, minus (ii) the percentage equivalent of
a fraction, the numerator of which is the product of (A) the percentage
calculated under clause (i) above minus 7.00%, multiplied by (B) the number of
consecutive Payment Dates through and including the Payment Date for which the
Group II Stepped Down Required Subordinated Percentage is being calculated, up
to a maximum of six, for which the Step-Down Trigger has occurred, and the
denominator of which is six.
"Group II Subordinated Amount": With respect to any Payment Date,
the excess, if any, of (x) the Group II Pool Principal Balance as of the close
of business on the last day of the preceding Remittance Period over (y) the sum
of the Class A-6 Group II Principal Balance as of such Payment Date (after
taking into account the payment on such Payment Date of the Group II Principal
Distribution Amount on such Payment Date, except for any portion thereof related
to payment of Group II Insured Payments applied as payments of the Group II
Principal Distribution Amount on such Payment Date or on any prior Payment Date
and not previously reimbursed to the Certificate Insurer pursuant to Section 7.3
hereof).
"Group II Subordination Deficiency Amount": As of any Payment Date,
the excess, if any, of (i) the Group II Specified Subordinated Amount applicable
to such Payment Date over (ii) the Group II Subordinated Amount applicable to
such Payment Date prior to taking into account the payment of any related Group
II Subordination Increase Amounts on such Payment Date.
"Group II Subordination Deficit": As of any Payment Date, the
excess, if any, of (x) the Class A-6 Group II Principal Balance after taking
into account the amount otherwise payable as the Group II Principal Distribution
Amount on such Payment Date (i.e., the sum of (i) the Base Group II Principal
Distribution Amount and (ii) the Group II Subordination Increase Amount, over
(y) the Group II Pool Principal Balance as of the close of business on the last
day of the preceding Remittance Period.
"Group II Subordination Increase Amount": With respect to any
Payment Date, the lesser of (x) the Group II Subordination Deficiency Amount as
of such Payment Date and (y) the portion of the Class B Interest allocable to
Group II pursuant to Section 7.3(b)(iii)(E) as of such Payment Date.
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"Group II Subordination Reduction Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group II Excess
Subordinated Amount for such Payment Date and (y) the amount described in clause
(x) of the definition of Base Group II Principal Distribution Amount for such
Payment Date.
"Group II Total Available Funds": As of any Payment Date, the amount
on deposit in the Class A Group II Distribution Account on such Payment Date
after making the allocations, transfers and disbursements from the Certificate
Account pursuant to Section 7.3(b) hereof on such Payment Date. The term "Group
II Total Available Funds" does not include Insured Payments and does not include
any amounts that cannot be distributed to the Owners of the Certificates by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
"Group II Trustee's Fee": With respect to any Payment Date, the
product of (i) one-twelfth of 0.0075% and (ii) the Group II Pool Principal
Balance as of the last day of the preceding Remittance Period.
"Group III": The group of Mortgage Loans that are the Group III
Mortgage Loans.
"Group III Allocable Losses": As defined in Section 7.8(c) hereof.
"Group III Available Funds": As of any Payment Date, the amount on
deposit in the Certificate Account with respect to the Group III Mortgage Loans
on such Payment Date after making the deposit to the Certificate Account
pursuant to Section 7.3(a)(iii) hereof on such Payment Date. The term "Group III
Available Funds" does not include Insured Payments and does not include any
amounts that cannot be distributed to the Owners of the Certificates by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
"Group III Certificates": Any of the Class A-7 Group III
Certificates.
"Group III Cumulative Net Realized Losses": As of any Payment Date,
the sum of all Net Realized Losses with respect to the Group III Mortgage Loans
experienced on all prior Payment Dates.
"Group III Excess Subordinated Amount": With respect to any Payment
Date, the excess, if any, of (x) the Group III Subordinated Amount that would
apply on such Payment Date after taking into account the payment of the Group
III Principal Distribution Amount on such Payment Date (except for any
distributions of related Group III Subordination Reduction Amounts on such
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Payment Date) over (y) the Group III Specified Subordinated Amount for such
Payment Date.
"Group III Insured Distribution Amount": With respect to any Payment
Date, the sum of (i) Group III Insured Interest Distribution Amount for such
Payment Date and (ii) the Group III Insured Principal Distribution Amount for
such Payment Date.
"Group III Insured Interest Distribution Amount": With respect to
any Payment Date, the sum of (i) the Class A-7 Interest Distribution Amount and
(ii) the Class A-7 Interest Carry-Forward Amount, less any Prepayment Interest
Shortfalls and Relief Act Shortfalls.
"Group III Insured Payment": As of any Payment Date, the sum of (x)
the Group III Shortfall Amount for such Payment Date and (y) any Preference
Amounts with respect to the Class A-7 Group III Certificates with respect to
which the affected Owners have complied with the provisions of Section 7.3(g)
hereof during the related Remittance Period.
"Group III Insured Principal Distribution Amount": With respect to
any Payment Date, the Group III Subordination Deficit for such Payment Date.
"Group III Interest Remittance Amount": For any Remittance Date, the
amount equal to (x) the sum, without duplication, of (i) the aggregate interest
portions of the payments (whether or not collected) becoming due on the Group
III Mortgage Loans during the immediately preceding Remittance Period and (ii)
Compensating Interest with respect to the Group III Mortgage Loans minus (y) the
aggregate Master Servicing Fee due to the Master Servicer with respect to the
Group III Mortgage Loans for such Remittance Period to the extent not previously
paid to, or withheld by, the Master Servicer.
"Group III Monthly Remittance": The sum of (i) the Group III
Interest Remittance Amount and the Group III Principal Remittance Amount
required to be remitted to the Trustee on each Remittance Date and (ii) the
amount of any Substitution Amounts and Loan Purchase Prices on deposit in the
Principal and Interest Account with respect to the Group III Mortgage Loans on
such Remittance Date.
"Group III Mortgage Loans": The Mortgage Loans held by the Trust and
assigned to Group III, as indicated on the related Mortgage Loan Schedule, as
supplemented and amended from time to time.
"Group III Pool Principal Balance": As of any date of determination,
the aggregate Principal Balances of all of the Group III Mortgage Loans as of
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the close of business on such date.
"Group III Premium Amount": With respect to each Payment Date, an
amount equal to the product of (x) one twelfth of the Certificate Insurer
Premium Rate and (y) the Certificate Principal Balance of the Class A-7 Group
III Certificates as of the close of business on the last day of the preceding
Remittance Period.
"Group III Principal Distribution Amount": As of any Payment Date,
the lesser of (A) the Group III Total Available Funds less the Group III
Interest Distribution Amount, the Group III Trustee's Fee and the Group III
Premium Amount and (B) the sum of (i) the Base Group III Principal Distribution
Amount, (ii) the Group III Subordination Deficit, and (iii) the Group III
Subordination Increase Amount.
"Group III Principal Remittance Amount": For any Remittance Date,
without duplication, the amount equal to the sum of (i) the aggregate principal
portions of the payments received by the Master Servicer with respect to the
Group III Mortgage Loans during the immediately preceding Remittance Period and
(ii) any Prepayments, Net Proceeds (but only to the extent that such Net
Proceeds do not exceed the Principal Balance of the related Mortgage Loan), in
each case described in clauses (i) and (ii) only to the extent collected on the
Group III Mortgage Loans during the preceding Remittance Period.
"Group III Shortfall Amount": As of any Payment Date, the excess, if
any, of (x) the Group III Insured Distribution Amount, as of such Payment Date
and less any portion of the Class A-7 Interest Carry-Forward Amount or the Class
A-7 Principal Carry-Forward Amount, owed to the Certificate Insurer on such
Payment Date on account of its subrogation rights over (y) the Group III Total
Available Funds on deposit in the Class A-7 Group III Distribution Account on
such Payment Date.
"Group III Specified Subordinated Amount": With respect to Group III
and any Payment Date on which an Excess Spread Trigger has not occurred, an
amount equal to (i) 3.50% of the Original Group III Pool Principal Balance, or
(ii) if the Step-Up Trigger has occurred, an amount equal to 100% of the
aggregate Principal Balance of the Group III Mortgage Loans or (iii) if the
Step-Up Trigger has not occurred but the Step-Down Trigger has occurred, an
amount equal to the greater of (a) 0.50% of the Original Group III Pool
Principal Balance and (b) the Group III Stepped Down Required Subordinated
Percentage of the aggregate Loan Balance of the related Mortgage Loans as of
such Payment Date. Notwithstanding the foregoing, if an Excess Spread Trigger
has occurred, the Group III Specified Subordinated Amount for such Payment Date
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shall be the sum of (a) the Group III Specified Subordinated Amount otherwise
obtained hereunder and (b) the product of (i) three times the excess of (A) 300
basis points over (B) the weighted average Excess Spread Rate for the Group III
Mortgage Loans for such Payment Date, and (ii) the Original Group III Pool
Principal Balance.
"Group III Stepped Down Required Subordinated Percentage": With
respect to Group III and any Payment Date for which the Step-Down Trigger has
occurred, a percentage equal to (i) the percentage equivalent of a fraction, the
numerator of which is 3.50% of the Original Group III Pool Principal Balance,
and the denominator of which is the aggregate Principal Balance of the Group III
Mortgage Loans as of such Payment Date, minus (ii) the percentage equivalent of
a fraction, the numerator of which is the product of (A) the percentage
calculated under clause (i) above minus 7.00%, multiplied by (B) the number of
consecutive Payment Dates through and including the Payment Date for which the
Group III Stepped Down Required Subordinated Percentage is being calculated, up
to a maximum of six, for which the Step-Down Trigger has occurred, and the
denominator of which is six.
"Group III Subordinated Amount": With respect to any Payment Date,
the excess, if any, of (x) the Group III Pool Principal Balance as of the close
of business on the last day of the preceding Remittance Period over (y) the sum
of the Class A-7 Group III Principal Balance as of such Payment Date (after
taking into account the payment on such Payment Date of the Group III Principal
Distribution Amount on such Payment Date, except for any portion thereof related
to payment of Group III Insured Payments applied as payments of the Group III
Principal Distribution Amount on such Payment Date or on any prior Payment Date
and not previously reimbursed to the Certificate Insurer pursuant to Section 7.3
hereof).
"Group III Subordination Deficiency Amount": As of any Payment Date,
the excess, if any, of (i) the Group III Specified Subordinated Amount
applicable to such Payment Date over (ii) the Group III Subordinated Amount
applicable to such Payment Date prior to taking into account the payment of any
related Group III Subordination Increase Amounts on such Payment Date.
"Group III Subordination Deficit": As of any Payment Date, the
excess, if any, of (x) the Class A-7 Group III Principal Balance after taking
into account the amount otherwise payable as the Group III Principal
Distribution Amount on such Payment Date (i.e., the sum of (i) the Base Group
III Principal Distribution Amount and (ii) the Group III Subordination Increase
Amount, over (y) the Group III Pool Principal Balance as of the close of
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business on the last day of the preceding Remittance Period.
"Group III Subordination Increase Amount": With respect to any
Payment Date, the lesser of (x) the Group III Subordination Deficiency Amount as
of such Payment Date and (y) the portion of the Class B Interest allocable to
Group III pursuant to Section 7.3(b)(iii)(E) as of such Payment Date.
"Group III Subordination Reduction Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group III Excess
Subordinated Amount for such Payment Date and (y) the amount described in clause
(x) of the definition of Base Group III Principal Distribution Amount for such
Payment Date.
"Group III Total Available Funds": As of any Payment Date, the
amount on deposit in the Class A Group III Distribution Account on such Payment
Date after making the allocations, transfers and disbursements from the
Certificate Account pursuant to Section 7.3(b) hereof on such Payment Date. The
term "Group III Total Available Funds" does not include Insured Payments and
does not include any amounts that cannot be distributed to the Owners of the
Certificates by the Trustee as a result of proceedings under the United States
Bankruptcy Code.
"Group III Trustee's Fee": With respect to any Payment Date, the
product of (i) one-twelfth of 0.0075% and (ii) the Group III Pool Principal
Balance as of the last day of the preceding Remittance Period.
"Highest Lawful Rate": As defined in Section 12.13.
"Insurance and Indemnity Agreement": The Insurance and Indemnity
Agreement dated as of November 1, 1996 among the Certificate Insurer, the Seller
and the Transferor.
"Indemnification Agreement": The Indemnification Agreement dated as
of November 18, 1996 among the Seller, the Master Servicer, the Transferor, the
Underwriters and the Certificate Insurer.
"Insurance Policy": Any hazard or title insurance policy relating to
a Mortgage Loan.
"Insurance Proceeds": The proceeds of any Insurance Policy relating
to a Mortgage Loan, a Property or an REO Property, net of proceeds to be applied
to the repair of the Property or released to the Mortgagor and net of expenses
reimbursable therefrom, but excluding any Insured Payment.
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"Insured Distribution Amount": The Group I Insured Distribution
Amount, the Group II Insured Distribution Amount or the Group III Insured
Distribution Amount, as the case may be.
"Insured Payment": The Group I Insured Payment, the Group II Insured
Payment or the Group III Insured Payment, as the case may be.
"Interest Advance": As defined in Section 7.9(a) hereof.
"Interest Advance Reimbursement Amount": As defined in Section
7.9(b) hereof.
"Interest Determination Date": With respect to any Accrual Period
for the Class A-1 Group I Certificates, the Class A-6 Group II Certificates, and
the Class A-7 Group III Certificates, the second London Business Day preceding
the first day of such Accrual Period.
"Late Payment Rate": As defined in the Insurance and Indemnity
Agreement.
"LIBOR": With respect to any Accrual Period for the Class A-1 Group
I Certificates, the Class A-6 Group II Certificates or the Class A-7 Group III
Certificates, 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 LIBO
Page, as of 11:00 a.m. (London time) on such Interest Determination Date. On
each Interest Determination Date, LIBOR for the related Accrual Period 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 for the related Accrual
Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of
1/16%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, LIBOR for the related Accrual
Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest
Rate.
"Liquidated Loan": As to any Payment Date, any Mortgage Loan as to
which the Master Servicer has determined, in accordance with the servicing
procedures specified herein, during the related Remittance Period that all
Liquidation Proceeds which it expects to recover from or on account of such
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Mortgage Loan have been recovered. Any such determination shall be evidenced by
an Officer's Certificate in the form of Exhibit I to this Agreement.
"Liquidation Expenses": Expenses which are incurred by the Master
Servicer in connection with the liquidation of any defaulted Mortgage Loan, such
expenses, including, without limitation, legal fees and expenses, and any
unreimbursed Servicing Advances expended by the Master Servicer pursuant to
Sections 10.9(b) and 10.13 of this Agreement with respect to the related
Mortgage Loan.
"Liquidation Proceeds": With respect to any Liquidated Loan, any
amounts (including the proceeds of any Insurance Policy) recovered by the Master
Servicer in connection with such Liquidated Loan, whether through trustee's
sale, foreclosure sale or otherwise, and including, without limitation, sale
proceeds received upon the sale of REO Property.
"Loan Purchase Price": With respect to any Mortgage Loan purchased
from the Trust on a Remittance Date pursuant to Sections 3.2, 3.3, 3.4, or
10.13(f) hereof, an amount equal to the Principal Balance of such Mortgage Loan
as of the date of purchase (after giving effect to the related Monthly
Remittance remitted by the Master Servicer on such Remittance Date), plus
interest on the outstanding Principal Balance thereof as of the beginning of the
preceding Remittance Period computed at the related Coupon Rate less the rate at
which the Master Servicing Fee is calculated, plus the aggregate amounts of (i)
all unreimbursed Reimbursable Advances and (ii) all Delinquency Advances which
the Master Servicer has theretofore failed to remit with respect to such
Mortgage Loan.
"Loan-to-Value Ratio": As of any particular date (i) with respect to
any First Mortgage Loan, the ratio of (A) the original principal balance of the
Note relating to such First Mortgage Loan to (B) the Appraised Value and (ii)
with respect to any Second Mortgage Loan, the ratio of (A) an amount equal to
the sum of (a) the remaining principal balance of the Senior Lien note relating
to such First Mortgage Loan and (b) the original principal balance of the Note
relating to such Second Mortgage Loan to (B) the Appraised Value as of the date
of origination of such Second Mortgage Loan.
"London Business Day": A day on which banks are open for dealing in
foreign currency and exchange in London and New York City.
"Lower Tier Distribution Amount": As of any Payment Date, the sum of
(i) the Group I Available Funds, (ii) the Group II Available Funds and (iii) the
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Group III Available Funds.
"Lower-Tier Interests": As defined in Section 2.8(c) hereof.
"Lower-Tier REMIC": The segregated pool of assets held by the Trust
consisting of the Mortgage Loans.
"Lower Tier Required Subordinate Amount": With respect to any
Distribution Date, an amount equal to the product of (a) the product of (i) 0.50
and (ii) the sum of the principal balances of LT-6, LT-8, LT-10 and LT-11
divided by the Pool Principal Balance then outstanding and (b) the sum of the
Group I, Group II, and Group III Specified Subordinated Amounts.
"Lower Tier Subordinated Amount": As of any date of determination,
(i) 0.50 times the sum of the principal balances of LT-6, LT-8, LT-10 and LT-11
minus (ii) the sum of the principal balances of LT-6, LT-8, and LT-10, in each
case as of such date of determination.
"Master Servicer": Access Financial Lending Corp., a Delaware
corporation.
"Master Servicer's Trust Receipt": The Master Servicer's trust
receipt in the form set forth in Exhibit F hereto.
"Master Servicing Fee": With respect to any Mortgage Loan, an amount
retained by the Master Servicer from collections of interest on the Mortgage
Loans as compensation for its servicing duties relating to such Mortgage Loan
pursuant to Section 10.15 hereof and equal to 0.45% per annum of the then
outstanding principal amount of such Mortgage Loan as of the first day of each
Remittance Period payable on a monthly basis; provided, that if the Seller is no
longer the Master Servicer, such rate may be increased to a rate not in excess
of 0.50% and if the Trustee is acting as Master Servicer such rate shall be
equal to 0.50%.
"Maximum LT-11 Interest Deferral Amount": With respect to any
Distribution Date, the excess of (i) accrued interest at the stated interest
rate applicable to LT-11 for such Distribution Date on a balance equal to the
principal balance of LT-11 minus the Lower Tier Subordinated Amount, in each
case for such Distribution Date over (ii) interest on LT-6, LT-8 and LT-10 for
such Distribution Date.
"Monthly Remittance": The Group I Monthly Remittance, the Group II
Monthly Remittance or the Group III Monthly Remittance, as the case may be.
"Moody's": Moody's Investors Service, Inc.
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"Mortgage": The mortgage, deed of trust or other instrument creating
a first or second lien on an estate in fee simple interest in real property
securing a Note.
"Mortgage Loan": Each of the mortgage loans sold by the Seller to
the Trust on the Startup Day, together with any Qualified Replacement Mortgages
substituted therefor by the Seller in accordance with Section 3.2, 3.3 or 3.4
hereof as from time to time are held as a part of the Trust Estate, the Mortgage
Loans originally so held being identified in the related Mortgage Loan Schedule.
The term "Mortgage Loan" includes the terms "First Mortgage Loan" and "Second
Mortgage Loan". The term "Mortgage Loan" includes any Mortgage Loan which is
Delinquent, which relates to a foreclosure or which relates to a Property which
is REO Property prior to such Property's disposition by the Trust. Any mortgage
loan which, although intended by the parties hereto to have been, and which
purportedly was, transferred and assigned to the Trust by the Seller, in fact
was not transferred and assigned to the Trust for any reason whatsoever,
including, without limitation, the incorrectness of the statement set forth in
Section 3.3(b)(i) hereof with respect to such mortgage loan, shall nevertheless
be considered a "Mortgage Loan" for all purposes of this Agreement.
"Mortgage Loan Group": Each of Group I, Group II and Group III.
"Mortgage Loan Schedules": The schedules of Mortgage Loans,
separated by Mortgage Loan Group and by Sub-Servicer, listing each Mortgage Loan
conveyed on the Startup Day and setting forth as to each Mortgage Loan the
following information: (i) the name of the Mortgagor, (ii) the street address of
the Property, (iii) the town or city in which the Property is located, (iv) the
Principal Balance as of the CutOff Date, (v) the account number, (vi) the
original principal amount, (vii) the current Coupon Rate, (viii) the first date
on which a scheduled monthly payment is due under the Note, (ix) the original
stated maturity date of the Note, (x) the State in which the Property is
located, (xi) the zip code of the Property, (xii) the Loan-to-Value Ratio,
(xiii) the Loan-to-Value Ratio of any Second Mortgage Loan calculated by
disregarding the amount described in clause (ii)(a) of the definition of
"Loan-to-Value Ratio", (xiv) whether the Property is owner-occupied or non-owner
occupied, (xv) whether the Property is a single family residence, two-to-four
family residence, a condominium, a townhouse or a rowhouse and (xvi) if such
Mortgage Loan is a "balloon loan", the amortization terms (e.g., 30 year
amortization due in 15 years).
"Mortgagor": The obligor on a Note.
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"Net Insurance Proceeds": As to any Mortgage Loan, Insurance
Proceeds net of unreimbursed Reimbursable Advances relating thereto. In no event
shall Net Insurance Proceeds with respect to any Mortgage Loan be less than
zero.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of unreimbursed Reimbursable Advances relating to such Mortgage
Loan. In no event shall Net Liquidation Proceeds with respect to any Liquidated
Loan be less than zero.
"Net Pool Balance": As of any Payment Date, the sum of the Pool
Principal Balance less the sum of the principal balances of the Class LT-6,
LT-8, LT-10 and LT-11 Certificates.
"Net Proceeds": The sum of, without duplication, Net Liquidation
Proceeds, Net Insurance Proceeds and Net Released Mortgage Property Proceeds.
"Net Realized Loss": With respect to any Liquidated Loan the excess,
if any, of (x) the Principal Balance thereof at the time the Mortgage Loan
became a Liquidated Loan over (y) the related Net Liquidation Proceeds.
"Net Released Mortgage Property Proceeds": As to any Mortgage Loan,
Released Mortgage Property Proceeds net of unreimbursed Reimbursable Advances
relating thereto. In no event shall Net Released Mortgage Property Proceeds with
respect to any Mortgage Loan be less than zero.
"Net Weighted Average Coupon Rate": With respect to any Mortgage
Loan Group and Remittance Period, the weighted average Coupon Rates (weighted by
Principal Balances) of the related Mortgage Loans, calculated at the opening of
business on the first day of such Remittance Period, less the rate at which the
Master Servicing Fee is then calculated and less the Trustee Fee and Certificate
Insurer Premium Rate.
"Nonrecoverable Advances": With respect to any Mortgage Loan, any
Servicing Advance or Delinquency Advance proposed to be made by the Master
Servicer in respect of a Mortgage Loan or REO Property which, in the good faith
business judgment of the Master Servicer, would not be ultimately recoverable
from late collections, Insurance Proceeds, Liquidation Proceeds or Released
Mortgage Property Proceeds on such Mortgage Loan or REO Property or otherwise.
Notwithstanding anything to the contrary contained in this Agreement, no
Delinquency Advance or Servicing Advance shall be required to be made by the
Master Servicer if such Delinquency Advance or Servicing Advance would, if made,
constitute a Nonrecoverable Advance.
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"Note": The note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
"Officer's Certificate": A certificate signed by any Authorized
Officer of any Person delivering such certificate and delivered to the Trustee.
"Operative Documents": This Agreement, the Sale Agreement, the
Insurance and Indemnity Agreement, the Underwriting Agreement, and the
Indemnification Agreement.
"Original Group I Pool Principal Balance": The aggregate Principal
Balances of all Group I Mortgage Loans as of the Cut-Off Date, i.e.,
$94,417,203.99.
"Original Group II Pool Principal Balance": The aggregate Principal
Balances of all Group II Mortgage Loans as of the Cut-Off Date, i.e.,
$96,308,229.50.
"Original Group III Pool Principal Balance": The aggregate Principal
Balances of all Group III Mortgage Loans as of the Cut-Off Date, i.e.,
$49,052,176.60.
"Original Pool Principal Balance": The aggregate Principal Balances
of all Mortgage Loans as of the Cut-Off Date, i.e., $239,777,610.09.
"Original Principal Balance": With respect to each Note, the
outstanding principal amount of such Note as of the Cut-Off Date.
"Outstanding": With respect to all Certificates of a Class, as of
any date of determination, all such Certificates theretofore executed and
delivered hereunder except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Certificates or portions thereof for which full and final
payment of money in the necessary amount has been theretofore deposited
with the Trustee in trust for the Owners of such Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this Agreement,
unless proof satisfactory to the Trustee is presented that any such
Certificates are held by a bona fide purchaser;
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(iv) Certificates alleged to have been destroyed, lost or stolen for
which replacement Certificates have been issued as provided for in Section
5.5 hereof; and
(v) With respect to voting rights, any Class A Certificates held by
the Seller, the Master Servicer, the Transferor or any affiliate of any
thereof, unless all other Class A Certificates have been paid in full.
Any Certificates in which the Certificate Insurer has an interest
pursuant to its right of subrogation shall be "Outstanding Certificates".
"Owner": The Person in whose name a Certificate is registered in the
Register.
"Payment Date": The 18th day of each month (or, if such day is not a
Business Day, the next following Business Day), commencing in the month
following the Startup Day.
"Percentage Interest": As to any Class A Certificate or Class B
Certificate, that percentage, expressed as a fraction, the numerator of which is
the original principal balance of such Certificate as of the Cut-Off Date and
the denominator of which is the original principal balance of all Certificates
of the same Class as of the Cut-Off Date; as to any Residual Certificate, that
Percentage Interest set forth on such Residual Certificate.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Delinquency Rate": With respect to any Remittance Period, the
fraction, expressed as a percentage, equal to (x) the aggregate Principal
Balances of all Mortgage Loans 60 or more days Delinquent as of the close of
business on the last day of such Remittance Period over (y) the Pool Principal
Balance as of the close of business on the last day of such Remittance Period.
"Pool Principal Balance": As to any Payment Date, the aggregate
principal balance of the Mortgage Loans as of the close of business on the last
day of the related Remittance Period.
"Pool Rolling Three Month Delinquency Rate": As of any Payment Date
the fraction, expressed as a percentage, equal to the average of the Pool
Delinquency Rates for each of the three (or one and two, in the case of the
first and second Payment Dates), immediately preceding Remittance Periods.
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"Preference Amount": As to any Payment Date:
(i) with respect to the Class A-1 Group I Certificates, any amounts
included in previous distributions to Class A-1 Group I Certificateholders of
Class A-1 Distribution Amounts (exclusive of Group I Insured Payments) which are
recovered from such Class A-1 Group I Certificate-holders as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code in accordance with a final, nonappealable order of a court having competent
jurisdiction and which have not theretofore been repaid to such Class A-1 Group
I Certificateholders provided such Class A-1 Group I Certificateholders have
complied with the provisions of Section 7.3(g);
(ii) with respect to the Class A-2 Group I Certificates, any amounts
included in previous distributions to Class A-2 Group I Certificateholders of
Class A-2 Distribution Amounts (exclusive of Group I Insured Payments) which are
recovered from such Class A-2 Group I Certificateholders as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code in accordance with a final, nonappealable order of a court having competent
jurisdiction and which have not heretofore been repaid to such Class A-2 Group I
Certificateholders provided such Class A-2 Group I Certificateholders have
complied with the provisions of Section 7.3(g);
(iii) with respect to the Class A-3 Group I Certificates, any
amounts included in previous distributions to Class A-3 Group I
Certificateholders of Class A-3 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-3 Group I
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not theretofore
been repaid to such Class A-3 Group I Certificateholders provided such Class A-3
Group I Certificateholders have complied with the provisions of Section 7.3(g);
(iv) with respect to the Class A-4 Group I Certificates, any amounts
included in previous distributions to Class A-4 Group I Certificateholders of
Class A-4 Distribution Amounts (exclusive of Group I Insured Payments) which are
recovered from such Class A-4 Group I Certificateholders as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code in accordance with a final, nonappealable order of a court having competent
jurisdiction and which have not heretofore been repaid to such Class A-4 Group I
Certificateholders provided such Class A-4 Group I Certificateholders have
complied with the provisions of Section 7.3(g);
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(v) with respect to the Class A-5 Group I Certificates, any amounts
included in previous distributions to Class A-5 Group I Certificateholders of
Class A-5 Distribution Amounts (exclusive of Group I Insured Payments) which are
recovered from such Class A-5 Group I Certificateholders as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code in accordance with a final, nonappealable order of a court having competent
jurisdiction and which have not heretofore been repaid to such Class A-5 Group I
Certificateholders provided such Class A-5 Group I Certificateholders have
complied with the provisions of Section 7.3(g);
(vi) with respect to the Class A-6 Group II Certificates, any
amounts included in previous distributions to Class A-6 Group II
Certificateholders of Class A-6 Distribution Amounts (exclusive of Group II
Insured Payments) which are recovered from such Class A-6 Group II
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been repaid to such Class A-6 Group II Certificateholders provided such Class
A-6 Group II Certificateholders have complied with the provisions of Section
7.3(g); and
(vii) with respect to the Class A-7 Group III Certificates, any
amounts included in previous distributions to Class A-7 Group III
Certificateholders of Class A-7 Distribution Amounts (exclusive of Group III
Insured Payments) which are recovered from such Class A-7 Group III
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been repaid to such Class A-7 Group III Certificateholders provided such Class
A-7 Group III Certificateholders have complied with the provisions of Section
7.3(g).
"Premium Amount": The Group I Premium Amount, the Group II Premium
Amount or the Group III Premium Amount, as the case may be.
"Prepayment": Any payment of principal of a Mortgage Loan by a
Mortgagor which is received by the Master Servicer in advance of the scheduled
due date for the payment of such principal.
"Prepayment Interest Shortfalls": With respect to each Group, the
sum of the difference (caused by any Prepayments during a calendar month), if
any, for each Mortgage Loan in the related Group, between (i) the interest
collected by the Master Servicer from the Mortgagor during a calendar month, and
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(ii) the full month's interest at the related Coupon Rate.
"Preservation Expenses": Expenditures made by the Master Servicer in
connection with a foreclosed Mortgage Loan prior to the liquidation thereof,
including, without limitation, expenditures for real estate property taxes,
hazard insurance premiums, property restoration or preservation. Preservation
Expenses shall constitute "Servicing Advances" for all purposes of this
Agreement.
"Principal and Interest Account": The principal and interest account
created by the Master Servicer pursuant to Section 10.8 hereof.
"Principal Balance": As of any date of calculation and with respect
to each Mortgage Loan, the Original Principal Balance thereof less any related
Principal Remittance Amounts relating to such Mortgage Loan included in previous
related Monthly Remittances and, if applicable, the related Monthly Remittance
as of such date[; provided that the Principal Balance for any Mortgage Loan
which has become a Liquidated Loan shall be zero following the date on which
such Mortgage Loan becomes a Liquidated Loan, and at all times thereafter].
"Principal Distribution Amount": The Class A-1 Principal
Distribution Amount, the Class A-2 Principal Distribution Amount, the Class A-3
Principal Distribution Amount, the Class A-4 Principal Distribution Amount, the
Class A-5 Principal Distribution Amount, the Class A-6 Principal Distribution
Amount, or the Class A-7 Principal Distribution Amount, as the case may be.
"Principal Remittance Amounts": The Group I Principal Remittance
Amount, the Group II Principal Remittance Amount or the Group III Principal
Remittance Amount, as the case may be.
"Prohibited Transaction": Has the meaning as defined in Section 860F
of the Code.
"Property": The underlying real property, including the improvements
thereon, securing a Mortgage Loan.
"Prospectus": The Prospectus dated November 7, 1996 relating to
Mortgage Loan Asset Backed Securities, issuable in Series.
"Prospectus Supplement": The Prospectus Supplement dated November
18, 1996 relating to the Class A Certificates.
"Qualified Liquidation": "Qualified Liquidation" shall have the
meaning set forth from time to time in the definition thereof at Section
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860F(a)(4) of the Code (or any successor statute thereto) and applicable to the
Trust.
"Qualified Mortgage": "Qualified mortgage" shall have the meaning
set forth from time to time in the definition thereof at Section 860G(a)(3) of
the Code (or any successor statute thereto) and applicable to the Trust.
"Qualified Replacement Mortgage": A Mortgage Loan substituted for
another by the Seller pursuant to Section 3.2, 3.3 or 3.4 hereof, which (i) has
a fixed rate of interest if the Mortgage Loan being replaced is a Group I
Mortgage Loan and has a variable rate of interest if the Mortgage Loan being
replaced is a Group II Mortgage Loan or a Group III Mortgage Loan, (ii) has a
Coupon Rate at least equal to the Coupon Rate of the Mortgage Loan being
replaced (which, in the case of a Group II Mortgage Loan or a Group III Mortgage
Loan, shall be deemed to mean the same index and a margin equal to or greater
than the margin applicable to the Mortgage Loan being replaced), (iii) is of the
same or better property type and the same or better occupancy status as the
replaced Mortgage Loan, (iv) shall mature no later than the latest maturity date
of any Mortgage Loan then held in the related Mortgage Loan Group (v) has a
Loan-to-Value Ratio as of the Replacement CutOff Date no higher than the
Loan-to-Value Ratio of the replaced Mortgage Loan at such time, (vi) shall be a
First Mortgage Loan if the Mortgage Loan being replaced was a First Mortgage
Loan, and shall have the same or higher lien priority if the Mortgage Loan being
replaced was a junior Mortgage Loan, (vii) has a Principal Balance as of the
related Replacement Cut-Off Date equal to or less than the Principal Balance of
the replaced Mortgage Loan as of such Replacement Cut-Off Date, (viii) shall be
of the same or higher credit quality classification (determined in accordance
with the Seller's underwriting guidelines) as the Mortgage Loan which such
Qualified Replacement Mortgage replaces, (ix) satisfies the criteria set forth
from time to time in the definition of "qualified replacement mortgage" at
Section 860G(a)(4) of the Code (or any successor statute thereto) and applicable
to the Trust, and (x) complies as of the date of substitution with each
representation and warranty set forth in Section 3.2(b) hereof, all as evidenced
by any Officer's Certificate of the Seller delivered to the Trustee prior to any
such substitution. In the event that one or more mortgage loans are proposed to
be substituted for one or more Mortgage Loans, the Certificate Insurer may allow
the foregoing tests to be met on a weighted average basis or other aggregate
basis acceptable to the Certificate Insurer, as evidenced by a written approval
delivered to the Trustee by the Certificate Insurer, except that the requirement
of clause (ix) hereof must be satisfied as to each Qualified Replacement
Mortgage.
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"Rating Agency": Any nationally recognized statistical credit rating
agency, or its successor, that rates any Certificates at the request of the
Seller at the time of the initial issuance of the Certificates. If such agency
or a successor is no longer in existence, "Rating Agency" shall be such
statistical credit rating agency, or other comparable Person, designated by the
Seller, notice of which designation shall be given to the Trustee, the
Certificate Insurer and the Master Servicer. References herein to the highest
rating category of a rating agency shall mean AAA (with respect to long-term
ratings) or A-1+ (with respect to short-term ratings), in the case of S&P, and
Aaa (with respect to long-term ratings) or P-1 (with respect to short-term
ratings), in the case of Moody's, and in the case of any other Rating Agency
shall mean such equivalent ratings.
"Record Date": With respect to the Class A-2, Class A-3, Class A-4
and Class A-5 Certificates and any Payment Date, the close of business on the
first Business Day of the calendar month in which such Payment Date occurs. With
respect to the Class A-1, Class A-6 and Class A-7 Certificates and any Payment
Date, the close of business on the Business Day immediately preceding such
Payment Date.
"Reference Banks": Bankers Trust Company, Barclay's Bank PLC, The
Bank of Tokyo and National Westminster Bank PLC; provided that if any of the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Seller which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London, (ii) not controlling, under the control of or under
common control with the Seller or any affiliate thereof, (iii) whose quotations
appear on the Reuters Screen LIBO Page on the relevant Interest Determination
Date and (iv) which have been designated as such by the Trustee.
"Register": The register maintained by the Trustee in accordance
with Section 5.4 hereof, in which the names of the Owners are set forth.
"Registration Statement": The Seller's Registration Statement number
333-07837, filed on Form S-3.
"Reimbursable Advances": As to any Mortgage Loan, all Delinquency
Advances and Servicing Advances made by the Master Servicer with respect
thereto, to the extent not previously paid to or withheld by the Master
Servicer.
"Reimbursement Amount": With respect to any Class of Class A
Certificates and for any Payment Date, the sum of (x)(i) all related Insured
Payments previously received by the Trustee not previously repaid to the
Certificate Insurer pursuant to Section 7.3(b)(iii)(C), together with interest
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accrued on each such related Insured Payment not previously repaid calculated
from the date the Trustee received the related Insured Payment at the Late
Payment Rate and (y) any other amounts then due and owing to the Certificate
Insurer relating to such Class A Certificates under the Insurance and Indemnity
Agreement.
"Released Mortgaged Property Proceeds": Proceeds received in
connection with a taking of a Property by condemnation or the exercise of
eminent domain or in connection with a release of part of the Property.
"Relief Act Shortfalls": With respect to each Group, the aggregate
difference (caused by application of the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended) between (i) the interest collected by the Master Servicer
from the related Mortgagor during a calendar month and (ii) the full month's
interest at the related Coupon Rate.
"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 the Code, and related provisions, and regulations and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"REMIC Trust": The segregated pool of assets consisting of the Trust
Estate except for the Supplemental Interest Payment Account.
"Remittance Date": Any date on which the Master Servicer is required
to remit moneys on deposit in a Principal and Interest Account to the Trustee,
which shall be the 13th day of each month, commencing in the month following the
Startup Day or if such day is not a Business Day the following Business Day.
"Remittance Period": The period (inclusive) beginning at the opening
of business on the second day of the calendar month immediately preceding the
calendar month in which a Remittance Date occurs and ending at the close of
business on the first day of the calendar month in which such Remittance Date
occurs.
"REO Property": A Property acquired by the Master Servicer in the
name of and on behalf of the Trust through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
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"Replacement Cut-Off Date": With respect to any Qualified
Replacement Mortgage, the second day of the calendar month in which such
Qualified Replacement Mortgage is conveyed to the Trust.
"Representation Letter": Letters to, or agreements with, the
Depository to effectuate a book entry system with respect to the Class A
Certificates registered in the Register under the nominee name of the
Depository.
"Representative": Prudential Securities Incorporated.
"Reserve Interest Rate": With respect to any Interest Determination
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 the one-month U.S. dollar lending rates which three New York City
banks selected by the Trustee are quoting on the relevant 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 three New York City
banks selected by the Trustee are quoting on such Interest Determination Date to
leading European banks.
"Residual Certificate": Any Class RL Certificate or any Class RU
Certificate.
"Rolling Delinquency Percentage": For any Distribution Date, the
average of the Delinquency Percentages for the Mortgage Loans as of the last day
of each of the six (or 1, 2, 3, 4, and 5 in the case of the first five Payment
Dates, as applicable) most recently ended Remittance Periods.
"Rolling Loss Percentage": As of any Distribution Date commencing on
the thirteenth Payment Date, the percentage equivalent of a fraction, the
numerator of which is the aggregate amount of Net Realized Losses incurred
during the preceding twelve calendar months, and the denominator of which is the
aggregate Pool Principal Balance as of the first day of the twelfth preceding
calendar month.
"S&P": Standard & Poor's, a division of The McGraw Hill Companies.
"Sale Agreement": The Purchase and Sale Agreement dated as of
November 1, 1996 between the Seller and the Transferor.
"Second Mortgage Loan": A Mortgage Loan which constitutes a second
priority mortgage lien with respect to the related Property, as identified in
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the Mortgage Loan Schedules.
"Seller": Access Financial Lending Corp., a Delaware corporation.
"Seller Optional Termination Date": The first Remittance Date on
which the then-outstanding aggregate Principal Balances of the Mortgage Loans is
ten percent or less of the Original Pool Principal Balance.
"Senior Lien": With respect to any Second Mortgage Loan, the
mortgage loan relating to the corresponding Property having a first priority
lien.
"Servicing Advance": As defined in Sections 10.9(b) and 10.13
hereof.
"Servicing Standards": As defined in Section 10.2 hereof.
"Startup Day": November 21, 1996.
"Step-Down Cumulative Loss Test": The Step-Down Cumulative Loss Test
will be met with respect to a Payment Date as follows: (i) for the 30th through
the 41st Payment Dates, if the Cumulative Loss Percentage for such Payment Date
is 1.00% or less, (ii) for the 42nd through the 53rd Payment Dates, if the
Cumulative Loss Percentage for such Payment Date is 1.75% or less, (iii) for the
54th through the 65th Payment Dates, if the Cumulative Loss Percentage for such
Payment Date is 2.50% or less and (iv) for the 66th Payment Date and any Payment
Date thereafter, if the Cumulative Loss Percentage for such Payment Date is
3.15% or less.
"Step-Down Rolling Delinquency Test": The Step-Down Rolling
Delinquency Test will be met, with respect to a Payment Date, if the Rolling
Delinquency Percentage for such Payment Date is less than 9.50%.
"Step-Down Rolling Loss Test": The Step-Down Rolling Loss Test will
be met, with respect to a Payment Date, if the Rolling Loss Percentage for such
Payment Date and such Group is less than 1.25%.
"Step-Down Trigger": For any Payment Date after the 30th Payment
Date, the Step-Down Trigger will have occurred if each of the Step-Down
Cumulative Loss Test, the Step-Down Rolling Delinquency Test and the Step-Down
Rolling Loss Test is met. In no event will the Step-Down Trigger be deemed to
have occurred for the 30th Payment Date or any preceding Payment Date.
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"Step-Up Cumulative Loss Test": The Step-Up Cumulative Loss Test
will be met with respect to a Payment Date as follows: (i) for the 1st through
the 12th Payment Dates, if the Cumulative Loss Percentage for such Payment Date
is more than 0.75%, (ii) for the 13th through the 24th Payment Dates, if the
Cumulative Loss Percentage for such Payment Date is more than 1.25%, (iii) for
the 25th through the 36th Payment Dates, if the Cumulative Loss Percentage for
such Payment Date is more than 3.00%, (iv) for the 37th through the 48th Payment
Dates, if the Cumulative Loss Percentage for such Payment Date is more than
3.75%, (v) for the 49th through the 60th Payment Dates, if the Cumulative Loss
Percentage for such Payment Date is more than 4.25%, (vi) for the 61st through
the 72nd Payment Dates, if the Cumulative Loss Percentage for such Payment Date
is more than 4.65%, (vii) for the 73rd through the 84th Payment Dates, if the
Cumulative Loss Percentage for such Payment Date is more than 4.95%, (viii) for
the 85th through the 96th Payment Dates, if the Cumulative Loss Percentage for
such Payment Date is more than 5.15%, (ix) for the 97th through the 108th
Payment Dates, if the Cumulative Loss Percentage for such Payment Date is more
than 5.25%, and (x) for the 109th Payment Date, and any Payment Date thereafter,
if the Cumulative Loss Percentage for such Payment Date is more than 5.30%.
"Step-Up Rolling Delinquency Test": The Step-Up Rolling Delinquency
Test will be met with respect to a Payment Date if the Rolling Delinquency
Percentage for such Payment Date is more than 11.0%.
"Step-Up Rolling Loss Test": The Step-Up Rolling Loss Test will be
met with respect to a Payment Date if the Rolling Loss Percentage for such
Payment Date is 1.50% or more.
"Step-Up Trigger": For any Payment Date, the Step-Up Trigger will
have occurred if any one of the Step-Up Cumulative Loss Test, the Step-Up
Rolling Delinquency Test or the Step-Up Rolling Loss Test is met.
"Sub-Servicer": Any Person with whom the Master Servicer has entered
into a Sub-Servicing Agreement and who satisfies the requirements set forth in
Section 10.3 hereof in respect of the qualification of a Sub-Servicer.
"Sub-Servicing Agreement": The written contract between the Master
Servicer and any Sub-Servicer relating to servicing and/or administration of
certain Mortgage Loans as permitted by Section 10.3 hereof.
"Subordination Deficiency Amount": The Group I Subordination
Deficiency Amount, the Group II Subordination Deficiency Amount or the Group III
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Subordination Deficiency Amount, as the case may be.
"Substitution Amount": As defined in Section 3.2(a) hereof.
"Supplemental Certificates": The Class B-S Certificates.
"Supplemental Interest Payment Account": The Supplemental Interest
Payment Account established in accordance with Section 7.9(a) hereof and
maintained by the Trustee.
"Supplemental Interest Payment Amount": As defined in Section 7.9(a)
hereof.
"Supplemental Interest Trust": The Access Financial Supplemental
Interest Trust 1996-4 created pursuant to Section 7.9(a) hereof.
"Tax Matters Person": The tax matters person, as defined in Section
1.860F-4(d) of the Treasury Regulations, appointed with respect to the Trust
pursuant to Section 12.17 hereof.
"Transferor": Access Financial Receivables Corp., a Delaware
corporation.
"Trigger Event": An Event of Default described in clauses (viii),
(ix) or (x) of Section 11.1.
"Trust": Access Financial Mortgage Loan Trust 1996-4, the trust
created under Article II of this Agreement.
"Trust Estate": Collectively, all money, instruments, and other
property to the extent such money, instruments and other property, are subject
hereto or intended to be held in trust for the benefit of the Owners, including
all proceeds thereof, including, without limitation, (i) the Mortgage Loans,
(ii) such amounts, including Eligible Investments, as from time to time may be
held by the Trustee in any Account, and by the Master Servicer in the Principal
and Interest Account or otherwise held by the Master Servicer in trust for the
Owners (except as otherwise provided herein), (iii) any Property, the ownership
of which has been effected in the name of the Trust as a result of foreclosure
or acceptance by the Master Servicer of a deed in lieu of foreclosure and that
has not been withdrawn from the Trust, (iv) the rights, if any, of the Trust in
any Insurance Policies relating to the Mortgage Loans, (v) Net Liquidation
Proceeds (but only to the extent that such Net Liquidation Proceeds do not
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exceed the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan) with respect to any Liquidated Loan, (vi)
Released Mortgaged Property Proceeds and (vii) the Certificate Insurance Policy.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
located on the date of execution of this Agreement at 450 West 33rd Street, 10th
Floor, New York, NY 10001, not in its individual capacity but solely as Trustee
under this Agreement, and any successor hereunder.
"Trustee's Fee": The total of the Group I Trustee's Fee, the Group
II Trustee's Fee and the Group III Trustee's Fee.
"Underwriters": Prudential Securities Incorporated and J.P. Morgan
Securities Inc.
"Underwriting Agreement": The Underwriting Agreement dated November
14, 1996 among the Seller and the Underwriters.
"Unregistered Certificates": Certificates which are not registered
as evidenced by inclusion in the Register.
"Upper-Tier REMIC": The segregated pool of assets held by the Trust
consisting of the Lower Tier Interests (except for the RL Lower-Tier Interest,
as set forth in the chart in Section 2.8(c) hereof), the Distribution Accounts
and the Certificate Insurance Policy.
Section 1.2. Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinbefore", "hereinafter" and other equivalent words
refer to this Agreement as a whole and not solely to the particular section of
this Agreement in which any such word is used. The definitions set forth in
Section 1.1 hereof include both the singular and the plural. Whenever used in
this Agreement, any pronoun shall be deemed to include both singular and plural
and to cover all genders.
Section 1.3. Captions; Table of Contents. The captions or headings
in this Agreement and the Table of Contents are for convenience only and in no
way define, limit or describe the scope and intent of any provisions of this
Agreement.
Section 1.4. Opinions. Each opinion with respect to the validity,
binding nature and enforceability of documents or Certificates may be qualified
to the extent that the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
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considered in a proceeding or action in equity or at law) and may state that no
opinion is expressed on the availability of the remedy of specific enforcement,
injunctive relief or any other equitable remedy. Any opinion required to be
furnished by any Person hereunder must be delivered by counsel upon whose
opinion the addressee of such opinion may reasonably rely, and such opinion may
state that it is given in reasonable reliance upon an opinion of another, a copy
of which must be attached, concerning the laws of a foreign jurisdiction.
Opinions regarding REMIC matters must be furnished by special counsel to the
Seller.
Section 1.5. Calculations. All calculations of accrued interest made
pursuant to the Agreement shall be made assuming a 360-day year consisting of
twelve 30-day months, except for interest on the Class A-1 Group I, Class A-6
Group II and Class A-7 Group III Certificates, which calculations shall be made
based on the actual number of days over a 360-day year, or as otherwise
specifically provided herein.
ARTICLE II
THE TRUST
Section 2.1. Establishment of the Trust. The Seller does hereby
create and establish, pursuant to the laws of the State of New York and this
Agreement, the Trust, which, for convenience, shall be known as "Access
Financial Mortgage Loan Trust 1996-4". The Trust shall be deemed to consist of
three sub-trusts, one with respect to each Mortgage Loan Group.
Section 2.2. Office. The office of the Trust shall be in care of the
Trustee, 450 West 33rd Street, 10th Floor, New York, NY 10001, or at such other
address as the Trustee may designate by notice to the Seller, the Master
Servicer, the Transferor, the Certificate Insurer and the Owners.
Section 2.3. Purpose and Powers. The purpose of the Trust is to
engage in the following activities, and only such activities: (i) the purchase
of the Mortgage Loans; (ii) the holding of the Mortgage Loans and the Trust
Estate related thereto; (iii) the issuance of the Certificates; (iv) activities
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including the investment of moneys in
accordance with this Agreement; and (v) such other activities as may be required
in connection with conservation of the Trust Estate and distributions to the
Owners; provided, however, that nothing contained herein shall be construed to
permit the Trustee to take any action which would adversely affect the status of
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any interest held by the Trust which is intended to be treated as a REMIC.
Section 2.4. Appointment of the Trustee; Declaration of Trust. The
Seller hereby appoints the Trustee as trustee of the Trust effective as of the
Startup Day, to have all the rights, powers and duties set forth herein. The
Trustee hereby acknowledges and accepts such appointment, represents and
warrants its eligibility as of the Startup Day to serve as Trustee pursuant to
Section 9.8 hereof and declares that it will hold the Trust Estate in trust upon
and subject to the conditions set forth herein for the benefit of the Owners.
Section 2.5. Expenses of the Trust. The Master Servicer shall retain
its monthly aggregate Master Servicing Fees as provided in Section 10.15 herein;
the Trustee's Fee shall be paid monthly as provided in Section 7.3(b)(i) hereof;
and the premiums due to the Certificate Insurer shall be paid monthly as
provided in Section 7.3(b)(iii)(C) hereof; all other expenses of the Trust
including any fees and expenses incurred by the Trustee in connection with a
termination of the Trust pursuant to Article VIII shall be submitted to the
Seller for its approval, and, if so approved, shall be paid by the Seller. The
reasonable fees and expenses of the Trustee's counsel in connection with the
review and delivery of this Agreement and related documentation shall be due as
of the Startup Day and shall be paid by the Seller.
Section 2.6. Ownership of the Trust. On the Startup Day, the
ownership interests in the Trust shall be transferred as set forth in Section
4.2 hereof, such transfer to be evidenced by issuance of the Certificates as
described therein. Thereafter, transfer of any ownership interest shall be
governed by Section 5.4 hereof.
Section 2.7. Receipt of Trust Estate. The Seller hereby directs the
Trustee to accept the property conveyed to it pursuant to Section 3.3 hereof in
connection with the establishment of the Trust, and the Trustee hereby
acknowledges receipt of such property. The Seller further directs the Trustee to
issue the Certificates, to hold the Class A Certificates as transfer agent for
the Depository as provided in Section 5.4, and to deliver the Class B
Certificates and the Residual Certificates to the Seller.
Section 2.8. Miscellaneous REMIC Provisions. (a) The Trust shall
elect that the Upper-Tier REMIC and the Lower-Tier REMIC shall be treated as
REMICs under Section 860D of the Code. Any inconsistencies or ambiguities in
this Agreement or in the administration of the Trust shall be resolved in a
manner that preserves the validity of such REMIC elections.
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(b) The Class A-1 Group I Certificates, the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates, the Class A-7 Group III Certificates, the uncertificated right of
the Supplemental Interest Account to receive the distributions described in
Section 7.3(c) (the "Uncertificated Interest") are hereby designated as "regular
interests" with respect to the Upper-Tier REMIC and the Class RU Certificates
are hereby designated as the single class of "residual interest" with respect to
the Upper-Tier REMIC. The Class LT-1, LT-2, LT-3, LT-4, LT-5, LT-6, LT-7, LT-8,
LT-9, LT-10 and LT-11 Certificates are hereby designated as "regular interests"
with respect to the Lower-Tier REMIC and the Class RL Certificates are hereby
designated as the single class of "residual interest" with respect to the
Lower-Tier REMIC.
(c) The beneficial ownership interest of the Lower-Tier REMIC shall
be evidenced by the interests (the "Lower-Tier Interests") having the
characteristics and terms as follows:
Original Final
Class Companion Principal Interest Payment
Designation Classes Balance Rate Date
- ----------- ------- --------- -------- -------
LT-1 A-1 $32,500,000 (1) October 18, 2011
LT-2 A-2 $10,696,000 (1) October 18, 2011
LT-3 A-3 $17,700,000 (1) October 18, 2011
LT-4 A-4 $18,500,000 (1) March 18, 2020
LT-5 A-5 $15,017,000 (1) November 18, 2026
LT-6 $2,000 (2) November 18, 2026
LT-7 A-6 $96,304,000 (3) November 18, 2026
LT-8 $2,000 (4) November 18, 2026
LT-9 A-7 $49,048,00 (5) November 18, 2026
LT-10 $2,000 (6) November 18, 2026
LT-11 $6,000 (7) November 18, 2026
RL (7) (8) November 18, 2026
(1) The Net Weighted Average Coupon Rate of the Group I Mortgage Loans, plus
the Certificate Insurer Premium Rate.
(2) The Weighted Average of the Class A-1, A-2, A-3, A-4 and A-5 Pass-Through
Rates.
(3) The Net Weighted Average Coupon Rate of the Group II Mortgage Loans, plus
the Certificate Insurer Premium Rate.
(4) The Class A-6 Pass-Through Rate.
(5) The Net Weighted Average Coupon Rate of the Group III Mortgage Loans, plus
the Certificate Insurer Premium Rate.
(6) The Class A-7 Pass-Through Rate.
(7) The Net Weighted Average Coupon Rate of the Mortgage Loans, plus the
Certificate Insurer Premium Rate.
(8) The RL Certificate has no principal balance and does not bear interest.
The Lower-Tier Interests LT-1, LT-2, LT-3, LT-4, LT-5, LT-6, LT-7, LT-8, LT-9,
LT-10 and LT-11 shall be issued as non-certificated interests and recorded on
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the records of the Lower-Tier REMIC as being issued to and held by the Trustee
on behalf of the Upper-Tier REMIC.
On each Payment Date, the Lower Tier Distribution Amount shall be
applied as principal and interest of particular Lower Tier Interests, other than
the RL Certificate, in amounts corresponding to the aggregate respective amounts
required to be applied as principal and interest of their related Companion
Classes (as set forth above) and the Class B Certificates pursuant to the
priorities set forth in section 7.3 hereof and with respect to the Lower Tier
Interests LT-6, LT-8, LT-10 and LT-11,
(i) the Lower Tier Distribution Amount shall be applied as interest
to LT-6, LT-8, LT-10 and LT-11 in an amount corresponding to the interest
accrued on the class principal balances of such classes at the interest rate for
such class as stated above; provided, however, that amounts payable as interest
in respect of LT-11 shall be reduced (the "LT-11 Distribution Reduction Amount")
when the Lower Tier Subordinated Amount is less than the Lower Tier Required
Subordinated Amount by the lesser of (x) the amount of such difference and (y)
the Maximum LT-11 Interest Deferral Amount. The LT-11 Distribution Reduction
Amount will be applied to proportionately reduce the principal balances of LT-6,
LT-8 and LT-10; in the case of LT-6, in proportion to the amount on such Payment
Date of any Group I Subordination Deficiency Amount, in the case of LT-8, in
proportion to the amount on such Payment Date of any Group II Subordination
Deficiency Amount, in the case of LT-10, in proportion to the amount on such
Payment Date of any Group III Subordination Deficiency Amount; and
(ii) the remainder of the Lower Tier Distribution Amount shall be
applied as principal to LT-6, LT-8, LT-10 and LT-11 in the following
percentages:
(a) 50.00% to LT-11; and
(b) 50.00% to LT-6, LT-8 and LT-10 in proportion to their outstanding
principal balances provided that the Lower Tier Subordinated Amount
is less than or equal to the Lower Tier Required Subordinated
Amount. If not, 50.00% divided among LT-6, LT-8, LT-10 and LT-11
such that the Lower Tier Subordinated Amount equals the Lower Tier
Required Subordinated Amount.
No distributions will be made on the Class RL Certificate, except
that any distribution of the proceeds of the final remaining assets of the Lower
Tier REMIC shall be distributed to the holder thereof upon presentation and
surrender of the Class RL Certificate.
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(d) The Startup Day is hereby designated as the "startup day" of
each REMIC within the meaning of Section 860G(a)(9) of the Code.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER, THE MASTER SERVICER AND THE TRANSFEROR;
CONVEYANCE OF MORTGAGE LOANS
Section 3.1. Representations and Warranties of the Seller, the
Master Servicer and the Transferor. (a) The Seller hereby represents, warrants
and covenants to the Master Servicer, the Transferor, the Trustee, the
Certificate Insurer and to the Owners as of the Startup Day that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and is in
good standing as a foreign corporation in each jurisdiction in which the
nature of its business, or the properties owned or leased by it make such
qualification necessary. The Seller has all requisite corporate power and
authority to own and operate its properties, to enable it to carry out its
business as presently conducted in a material manner and as proposed to be
conducted and to enter into and discharge its obligations under this
Agreement and the other Operative Documents to which it is a party in a
material manner.
(ii) The execution and delivery of this Agreement and the other
Operative Documents to which the Seller is a party, by the Seller, and its
performance and compliance with the terms of this Agreement and of the
other Operative Documents to which it is a party have been duly authorized
by all necessary corporate action on the part of the Seller and will not
violate the Seller's Certificate of Incorporation 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
contract, agreement or other instrument to which the Seller is a party or
by which the Seller is bound, or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal
having jurisdiction over the Seller or any of its properties.
(iii) This Agreement and the other Operative Documents to which
the Seller is a party, assuming due authorization, execution and delivery
by the other parties hereto and thereto, each constitutes a valid, legal
and binding obligation of the Seller, enforceable against it in accordance
with the terms hereof and thereof, except as the enforcement hereof and
thereof may be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity (whether considered
in a proceeding or action in equity or at law).
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder and under the other Operative Documents to which it is a party.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which litigation might have
consequences that would prohibit its entering into this Agreement or any
other Operative Document to which it is a party or that would materially
and adversely affect the condition (financial or otherwise) or operations
of the Seller or its properties or might have consequences that would
materially and adversely affect its performance hereunder and under the
other Operative Documents to which it is a party.
(vi) No certificate of an officer, statement furnished in writing
or report delivered pursuant to the terms hereof by the Seller contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the certificate, statement or report not misleading.
(vii) The statements contained in the Registration Statement which
describe the Seller or matters or activities for which the Seller is
responsible in accordance with the Operative Documents or which are
attributed to the Seller therein are true and correct in all material
respects, and the Registration Statement does not contain any untrue
statement of a material fact with respect to the Seller or omit to state a
material fact required to be stated therein or necessary in order to
prevent the statements contained therein with respect to the Seller from
being misleading. To the best of the Seller's knowledge and belief, the
Registration Statement does not contain any untrue statement of a material
fact required to be stated therein or omit to state any material fact
required to be stated therein or necessary to make the statements
contained therein not misleading.
(viii) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be, by
or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc. under any state securities
laws, real any such actions, approvals, etc. under any state securities
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laws, real estate syndication or "Blue Sky" statutes, as to which the
Seller makes no such representation or warranty), that are necessary or
advisable in connection with the purchase and sale of the Certificates and
the execution and delivery by the Seller of the Operative Documents to
which it is a party, have been duly taken, given or obtained, as the case
may be, are in full force and effect on the date hereof, are not subject
to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be
taken or review thereof may be obtained has expired or no review thereof
may be obtained or appeal therefrom taken, and are adequate to authorize
the consummation of the transactions contemplated by this Agreement and
the other Operative Documents on the part of the Seller and the
performance by the Seller of its obligations under this Agreement and such
of the other Operative Documents to which it is a party.
(ix) The transactions contemplated by this Agreement are in the
ordinary course of business of the Seller.
(x) The Seller received fair consideration and reasonably
equivalent value in exchange for the sale of the interests in the Mortgage
Loans to the Transferor.
(xi) The Seller did not sell any interest in any Mortgage Loan
with any intent to hinder, delay or defraud any of its creditors.
(xii) The Seller is solvent and the Seller will not be rendered
insolvent as a result of the sale of the Mortgage Loans to the Transferor.
(b) The Master Servicer hereby represents and warrants to the
Seller, the Transferor, the Trustee, the Certificate Insurer, and to the Owners
as of the Startup Day that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, and is, or a
Sub-Servicer is, in compliance with the laws of each state in which any
Property is located to the extent necessary to enable the Master Servicer
to perform its obligations hereunder. The Master Servicer and each
Sub-Servicer is in good standing as a foreign corporation in each
jurisdiction in which the nature of its business, or the properties owned
or leased by it make such qualification necessary to enable the Master
Servicer to perform its obligations hereunder. The Master Servicer has all
requisite corporate power and authority to own and operate its properties,
to carry out its business as presently conducted and as proposed to be
conducted and to enter into and discharge, either directly or through
Sub-Servicers, its obligations under this Agreement. The Master Servicer
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and any Sub-Servicer (except LSI Financial Group) has equity of at least
$15,000,000 as determined in accordance with generally accepted accounting
principles. Each Sub-Servicer appointed by the Master Servicer will have
all requisite corporate power and authority to own and operate its
properties, to carry out its business as presently conducted and as
proposed to be conducted.
(ii) The execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement and any Sub-Servicing Agreement have been duly authorized by all
necessary corporate action on the part of the Master Servicer and will not
violate the Master Servicer's Certificate of Incorporation 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 contract, agreement or other instrument to which the Master
Servicer is a party or by which the Master Servicer is bound or violate
any statute or any order, rule or regulation of any court, governmental
agency or body or other tribunal having jurisdiction over the Master
Servicer or any of its properties.
(iii) This Agreement and any Sub-Servicing Agreement, assuming due
authorization, execution and delivery by the other parties hereto and
thereto, each constitutes a valid, legal and binding obligation of the
Master Servicer, enforceable against it in accordance with the terms
hereof, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(iv) The Master Servicer is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Master Servicer or its properties or might
have consequences that would materially and adversely affect its
performance hereunder and under any Sub-Servicing Agreement.
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
litigation might have consequences that would prohibit its entering into
this Agreement or any Sub-Servicing Agreement or that would materially and
adversely affect the condition (financial or otherwise) or operations of
the Master Servicer or its properties or might have consequences that
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would materially and adversely affect its performance hereunder.
(vi) Each certificate of an officer, statement furnished in writing
or report delivered pursuant to the terms hereof by the Master Servicer is
true and correct in all material respects.
(vii) The statements contained in the Prospectus Supplement which
describe the Master Servicer under the caption "The Master Servicer" are
true and correct in all material respects.
(viii) The Master Servicing Fee is a "current (normal) servicing fee
rate" as that term is used in Statement of Financial Accounting Standards
No. 65 issued by the Financial Accounting Standards Board. Neither the
Master Servicer nor any affiliate thereof will report on any financial
statements any part of the Master Servicing Fee as an adjustment to the
sales price of the Mortgage Loans.
(ix) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be, by
or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc. under any state securities
laws, real estate syndication or "Blue Sky" statutes, as to which the
Master Servicer makes no such representation or warranty), that are
necessary or advisable in connection with the execution and delivery by,
and the performance of the obligations of, the Master Servicer, either
directly or through a Sub-Servicer, of this Agreement and each
Sub-Servicing Agreement, have been duly taken, given or obtained, as the
case may be, are in full force and effect on the date hereof, are not
subject to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be
taken or review thereof may be obtained has expired or no review thereof
may be obtained or appeal therefrom taken, and are adequate to authorize
the consummation of the transactions contemplated by this Agreement and
each Sub-Servicing Agreement on the part of the Master Servicer and the
performance by the Master Servicer, either directly or through a
Sub-Servicer, of its obligations under this Agreement and each
Sub-Servicing Agreement.
(x) The collection practices used by the Master Servicer with
respect to the Mortgage Loans have been, in all material respects, legal,
proper, prudent and customary in the non-conforming credit residential
loan servicing business.
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(xi) The transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
(c) The Transferor hereby represents and warrants to the Seller, the
Master Servicer, the Trustee, the Certificate Insurer, and to the Owners as of
the Startup Day that:
(i) The Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in good standing as a foreign corporation in each jurisdiction in which
the nature of its business, or the properties owned or leased by it make
such qualification necessary. The Transferor has all requisite corporate
power and authority to own and operate its properties, to enable it to
carry out its business as presently conducted in a material manner and as
proposed to be conducted and to enter into and discharge its obligations
under this Agreement and the other Operative Documents to which it is a
party in a material manner.
(ii) The execution and delivery of this Agreement and the other
Operative Documents to which the Transferor is a party, by the Transferor,
and its performance and compliance with the terms of this Agreement and of
the other Operative Documents to which it is a party have been duly
authorized by all necessary corporate action on the part of the Transferor
and will not violate the Transferor's Certificate of Incorporation 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 contract, agreement or other instrument to which the
Transferor is a party or by which the Transferor is bound, or violate any
statute or any order, rule or regulation of any court, governmental agency
or body or other tribunal having jurisdiction over the Transferor.
(iii) This Agreement and the other Operative Documents to which
the Transferor is a party, assuming due authorization, execution and
delivery by the other parties hereto and thereto, each constitutes a
valid, legal and binding obligation of the Transferor, enforceable against
it in accordance with the terms hereof and thereof, except as the
enforcement hereof and thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law).
(iv) The Transferor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which might have consequences
that would materially and adversely affect its performance hereunder and
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under the other Operative Documents to which it is a party.
(v) No litigation is pending or, to the best of the Transferor's
knowledge, threatened against the Transferor which litigation might have
consequences that would prohibit its entering into this Agreement or any
other Operative Document to which it is a party or that would materially
and adversely affect its performance hereunder and under the other
Operative Documents to which it is a party.
(vi) No certificate of an officer, statement furnished in writing
or report delivered pursuant to the terms hereof by the Transferor
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the certificate, statement or report not
misleading.
(vii) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be, by
or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc. under any state securities
laws, real estate syndication or "Blue Sky" statutes, as to which the
Transferor makes no such representation or warranty), that are necessary
or advisable in connection with the purchase and sale of the Certificates
and the execution and delivery by the Transferor of the Operative
Documents to which it is a party, have been duly taken, given or obtained,
as the case may be, are in full force and effect on the date hereof, are
not subject to any pending proceedings or appeals (administrative,
judicial or otherwise) and either the time within which any appeal
therefrom may be taken or review thereof may be obtained has expired or no
review thereof may be obtained or appeal therefrom taken, and are adequate
to authorize the consummation of the transactions contemplated by this
Agreement and the other Operative Documents on the part of the Transferor
and the performance by the Transferor of its obligations under this
Agreement and such of the other Operative Documents to which it is a
party.
(viii) The transactions contemplated by this Agreement are in the
ordinary course of business of the Transferor.
(ix) The Transferor received fair consideration and reasonably
equivalent value in exchange for the sale of the interests in the Mortgage
Loans to the Trust.
(x) The Transferor did not sell any interest in any Mortgage Loan
with any intent to hinder, delay or defraud any of its creditors.
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(xi) The Transferor is solvent and the Transferor will not
be rendered insolvent as a result of the sale of the Mortgage Loans to the
Trust.
(d) The Transferor additionally covenants that it shall be operated
in such a manner that it would not be substantively consolidated in the trust
estate of any other Person in the event of a bankruptcy or insolvency of such
Person and in such regard, the Transferor shall:
(A) not become involved in the day-to-day management of any
other Person;
(B) not permit the Seller to become involved in the
day-to-day management of the Transferor except to the extent
provided in the Operative Documents;
(C) not engage in transactions with any other Person other
than those activities permitted by its certificate of incorporation
and matters necessarily incident thereto;
(D) maintain separate corporate records and books of
account in a separate business office from any other Person;
(E) maintain its assets separately from the assets of any
other Person (including through the maintenance of a separate bank
account);
(F) maintain separate financial statements, books and
records from any other Person;
(G) not guarantee any other Person's obligations or advance
funds to any other Person for the payment of expenses or otherwise;
(H) conduct all business correspondence of the Transferor
and other communications in the Transferor's own name;
(I) not act as an agent of any other Person in any capacity
except pursuant to contractual documents indicating such capacity
and only in respect of transactions permitted by its certificate of
incorporation and matters necessarily incident thereto;
(J) not fail to hold appropriate meetings of the Board of
Directors at least annually and otherwise as necessary to authorize
all corporate action;
(K) not fail to hold meetings of the stockholders at least
annually;
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(L) not form, or cause to be formed, any subsidiaries;
(M) not act as an agent of the Seller nor permit the Seller
to act as its agent except to the limited extent permitted under the
Operative Documents;
(N) maintain two independent directors at all times;
(O) maintain a separate office from the Seller; and
(P) not engage in intercorporate transactions except to the
extent permitted by its certificate of incorporation and bylaws;
(e) It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the Mortgage
Loans to the Trustee.
Upon discovery by any of the Seller, the Master Servicer, the
Transferor, the Certificate Insurer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 3.1(c) which materially
and adversely affects the interests of the Owners or of the Certificate Insurer,
the party discovering such breach shall give prompt written notice to the other
parties and the Certificate Insurer; provided that, the Trustee shall have no
duty or responsibility to inquire, investigate, determine or obtain actual
knowledge of facts or events constituting a breach of any such representations
or warranties. Within 30 days of its discovery or its receipt of notice of
breach, the Master Servicer shall cure such breach in all material respects and,
upon the Master Servicer's continued failure to cure such breach, may thereafter
be removed pursuant to Section 11.1 hereof.
Section 3.2. Covenants of the Seller to Take Certain Actions with
Respect to the Mortgage Loans in Certain Situations. (a) Upon the actual
knowledge of the Seller, the Master Servicer, the Transferor, the Certificate
Insurer or the Trustee that the statements set forth in (ii), (x), (xiii),
(xix), (xxxii), (xxxiii) or (xxxix) of subsection (b) below were untrue in any
material respect as of the Startup Day or that any of the other statements set
forth in subsection (b) below were untrue as of the Startup Day with the result
that the interests of the Owners or the interests of the Certificate Insurer are
materially and adversely affected, the party discovering such breach shall give
prompt written notice to the other parties and the Certificate Insurer.
Upon the earliest to occur of the Seller's discovery, its receipt of
notice of breach from any one of the other parties or the Certificate Insurer or
such time as a situation resulting from an existing statement which is untrue
materially and adversely affects the interests of the Owners or of the
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Certificate Insurer as set forth above, the Seller hereby covenants and warrants
that it shall promptly cure such breach in all material respects or it shall,
subject to the further requirements of this paragraph, on the second Remittance
Date next succeeding such discovery, receipt of notice or such time (i)
substitute in lieu of each Mortgage Loan which has given rise to the requirement
for action by the Seller a Qualified Replacement Mortgage and, if the
outstanding principal amount of such Qualified Replacement Mortgage as of the
applicable Replacement Cut-Off Date is less than the Principal Balance of such
Mortgage Loan as of such Replacement Cut-Off Date, deliver an amount equal to
such difference together with accrued and unpaid interest on such amount
calculated at the related Coupon Rate less the rate at which the Master
Servicing Fee is calculated, if any, of the Mortgage Loan being replaced (such
aggregate amount, the "Substitution Amount"), together with the aggregate amount
of all unreimbursed Delinquency Advances and Servicing Advances theretofore made
with respect to such Mortgage Loan to the Master Servicer for deposit in the
Principal and Interest Account or (ii) purchase such Mortgage Loan from the
Trust at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Master Servicer for deposit in the
Principal and Interest Account. In connection with any such proposed purchase or
substitution, the Seller at its expense, shall cause to be delivered to the
Trustee and to the Certificate Insurer an opinion of counsel experienced in
federal income tax matters stating whether or not such a proposed purchase or
substitution would constitute a Prohibited Transaction for the Trust or would
jeopardize the status of either REMIC as a REMIC and the Seller shall only be
required to take either such action to the extent such action would not
constitute a Prohibited Transaction for the Trust or would not jeopardize the
status of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC.
Notwithstanding the foregoing, the fact that a remedy would constitute a
Prohibited Transaction with respect to a Mortgage Loan shall not reduce the
obligation hereunder of the Seller to effect another remedy with respect to such
Mortgage Loan. It is understood and agreed that the obligation of the Seller so
to cure the defect, substitute or purchase any Mortgage Loan as to which such a
statement set forth below is untrue in any material respect and has not been
remedied, along with the indemnification remedy available under Section 12.21(b)
shall constitute the sole remedies available to the Owners, the Trustee or the
Certificate Insurer respecting any such statement.
(b) (i) The information with respect to each Mortgage Loan set forth
in the related Mortgage Loan Schedule is true and correct in all material
respects as of the Cut-Off Date;
(ii) Each Mortgage Loan File has been or will be delivered to
the Trustee on the Startup Day;
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(iii) Each Mortgage Loan being transferred to the Trustee is a
Qualified Mortgage and is a Mortgage;
(iv) 1.29% of the Original Group I Pool Principal Balance,
0.5% of the Original Group II Pool Principal Balance and 1.67% of the
Original Group III Pool Principal Balance have corresponding Properties
that are improved by a one-to-four family residential dwelling and the
remaining Mortgage Loans have corresponding Properties that are improved
by modular housing, manufactured housing, PUD, SF row houses, townhouses
or duplexes;
(v) As of the Cut-Off Date, no Mortgage Loan in Group I had a
Loan-to-Value Ratio in excess of 90% and the weighted average
Loan-to-Value Ratio for Group I was approximately 72.8%, no Mortgage Loan
in Group II had a Loan-to-Value Ratio in excess of 90% and the weighted
average Loan-to-Value Ratio for Group II was approximately 78.41%, no
Mortgage Loan in Group III had a Loan-to-Value Ratio in excess of 80% and
the weighted average Loan-to-Value Ratio for Group III was approximately
72.61%.
(vi) Each Mortgage Loan is being serviced by or on behalf of
the Master Servicer;
(vii) The Note related to each Group I Mortgage Loan bears a
fixed Coupon Rate of at least 8% per annum; the Note related to each Group
II Mortgage Loan bears interest based on an index of six-month LIBOR,
adjusts either every sixth month or every twenty-fourth month or every
thirty-sixth month, has a margin of at least 3.375%, an adjustment cap of
at least 1%, a lifetime cap of at least 13.625% and a Coupon Rate as of
the Cut-Off Date of at least 7.625%; the Note related to each Group III
Mortgage Loan bears interest based on an index of six-month LIBOR, adjusts
either every sixth month or every twenty-fourth month or every
thirty-sixth month, has a margin of at least 3.825%, an adjustment cap of
at least 1%, a lifetime cap of at least 13.375% and a Coupon Rate as of
the Cut-Off Date of at least 6.99%;
(viii) Notes representing not more than 52.33% of the Original
Group I Pool Principal Balance of the Mortgage Loans provide for a
"balloon" payment at the end of the 15th year, notes representing not more
than 0.09% of the Original Group II Pool Principal Balance of the Mortgage
Loans provide for a "balloon" payment at the end of the 15th year (such
Mortgage Loans having 30-year amortization schedules) and notes
representing not more than 0% of the Original Group III Pool Principal
Balance of the Mortgage Loans provide for a "balloon" payment at the end
of the 15th year (such Mortgage Loans having 30-year amortization
schedules);
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(ix) As of the Cut-Off Date, each Mortgage is a valid and
subsisting first or second lien (as identified in the Mortgage Loan
Schedule) of record on the Property subject in the case of any Second
Mortgage Loan only to a Senior Lien on such Property and subject in all
cases to the exceptions to title set forth in the title insurance policy
with respect to the related Mortgage Loan, which exceptions are generally
acceptable to banking institutions in connection with their regular
mortgage lending activities, and such other exceptions to which similar
properties are commonly subject and which do not individually, or in the
aggregate, materially and adversely affect the benefits of the security
intended to be provided by such Mortgage;
(x) Immediately prior to the transfer and assignment
contemplated by the Sale Agreement, the Seller held good and indefeasible
title to, and was the sole owner of, each Mortgage Loan conveyed by the
Seller subject to no liens, charges, mortgages, encumbrances or rights of
others except as set forth in paragraph (ix) or other liens which will be
released simultaneously with such transfer and assignment; and immediately
upon the transfer and assignment contemplated the Trust will hold good and
indefeasible title to, and be the sole owner of, each Mortgage Loan
subject to no liens, charges, mortgages, encumbrances or rights of others
except as set forth in paragraph (ix) or other liens which will be
released simultaneously with such transfer and assignment;
(xi) As of the Cut-Off Date, no Mortgage Loan is more than 59
days delinquent, and Mortgage Loans (in the aggregate) representing no
more than 3.78% of the Original Group I Pool Principal Balance of the
Mortgage Loans are 30-59 days delinquent, no more than 5.78% of the
Original Group II Pool Principal Balance of the Mortgage Loans are 30-59
days delinquent and no more than 2.29% of the Original Group III Pool
Principal Balance of the Mortgage Loans are 30-59 days delinquent;
(xii) As of the Startup Day, each Property is free of
substantial damage and is in good repair;
(xiii) As of the Startup Day, there is no valid and enforceable
offset, defense or counterclaim to any Note or Mortgage, including the
obligation of the related Mortgagor to pay the unpaid principal of or
interest on such Note;
(xiv) As of the Startup Day, there is no delinquent tax or
assessment lien on any Property, nor is there any claim for work, labor or
material affecting any Property which is or may be a lien prior to, or
equal with, the lien of the related Mortgage except, in each case, those
which are insured against by any title insurance policy referred to in
paragraph (xvi) below;
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(xv) Each Mortgage Loan complies and at the time it was made
complied in all material respects with all applicable state and federal
laws and regulations, including, without limitation, the federal
Truth-in-Lending Act, Real Estate Settlement Procedure Act and other
consumer protection laws, usury, equal credit opportunity, disclosure and
recording laws;
(xvi) With respect to each Mortgage Loan, a lender's title
insurance policy, issued in standard California Land Title Association
form or American Land Title Association form in the state in which the
related Property is situated, in an amount at least equal to the Original
Principal Balance of such Mortgage Loan insuring the mortgagee's interest
under the related Mortgage Loan as the holder of a valid first mortgage
lien of record in the case of each First Mortgage Loan or second mortgage
lien of record in the case of each Second Mortgage Loan on the real
property described in the related Mortgage, as the case may be, subject
only to exceptions of the character referred to in paragraph (ix) above,
was effective on the date of the origination of such Mortgage Loan, and,
as of the Startup Day, such policy will be valid and thereafter such
policy shall continue in full force and effect. The assignment to the
Trust of the benefits of the mortgage title insurance does not require the
consent of or notification to the insurer. No claims have been made under
such mortgage title insurance policies and no prior holder of the related
mortgage has done, by act or omission, anything that would impair the
coverage of such mortgage title insurance policy;
(xvii) At the Startup Day, the improvements upon each Property
are covered by a valid and existing hazard insurance policy (which may be
a blanket policy of the type described in Section 10.11(c) hereof) with a
generally acceptable carrier that provides for fire and extended coverage
representing coverage not less than the least of (A) the outstanding
principal balance of the related Mortgage Loan (together, in the case of a
Second Mortgage Loan, with the outstanding principal balance of the Senior
Lien), (B) the minimum amount required to compensate for damage or loss on
a replacement cost basis or (C) the full insurable value of the Property
and in any event which is not less than the amount necessary to avoid the
operation of any coinsurance provisions with respect to the Property in
the event of any loss less than the amount of the insurance coverage and
consistent with the amount that would have been required as of the date of
origination by the related originator in its normal residential mortgage
lending activities with respect to similar properties in the same
locality. All hazard insurance policies are the valid and binding
obligation of the insurer and contain a standard mortgagee clause naming
the originator, its successors and assigns, as mortgagee. All premiums
thereon have been paid. Such insurance policy requires prior notice to the
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insured of termination or cancellation, and no such notice has been
received. The Mortgage obligates the Mortgagor thereunder to maintain all
such insurance at the Mortgagor's cost and expense, and upon the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor;
(xviii) If any Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy (which may be a blanket policy of
the type described in Sections 10.11(b) and 10.11(c) hereof) in a form
meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect with respect to such Property with a
generally acceptable carrier in an amount representing coverage not less
than the least of (A) the outstanding principal balance of the related
Mortgage Loan (together, in the case of a Second Mortgage Loan, with the
outstanding principal balance of the Senior Lien), (B) the minimum amount
required to compensate for damage or loss on a replacement cost basis or
(C) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended. All flood insurance policies
are the valid and binding obligation of the insurer and contain a standard
mortgagee clause naming the originator, its successors and assigns, as
mortgagee. All premiums thereon have been paid. Such flood insurance
policy requires prior notice to the insured of termination or
cancellation, and no such notice has been received. The Mortgage obligates
the Mortgagor thereunder to maintain all such flood insurance at the
Mortgagor's cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such flood
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
(xix) Each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with its
terms, except only as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity (whether considered in a proceeding or action in equity or at law),
and all parties to each Mortgage Loan had full legal capacity to execute
all documents relating to such Mortgage Loan and convey the estate therein
purported to be conveyed; there is only one original Note with respect to
each Mortgage Loan;
(xx) The Seller has caused and will cause to be performed any
and all acts required to be performed to preserve the rights and remedies
of the Trust in any Insurance Policies applicable to any Mortgage Loans
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delivered by the Seller including, to the extent such Mortgage Loan is not
covered by a blanket policy described in Section 10.11(c) hereof, any
necessary notifications of insurers, assignments of policies or interests
therein, and establishments of co-insured, joint loss payee and mortgagee
rights in favor of the Trustee;
(xxi) Each original Mortgage was recorded or is in the process
of being recorded, and all subsequent assignments of the original Mortgage
have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof for the benefit of
the Trustee (or, subject to Section 3.3 hereof, are in the process of
being recorded);
(xxii) The terms of each Note and each Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the interests
of the Owners and which has been delivered to the Trustee. The substance
of any such alteration or modification is reflected on the related
Mortgage Loan Schedule;
(xxiii) The proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to make
future advances thereunder. Any and all requirements as to completion of
any on-site or off-site improvements and as to disbursements of any escrow
funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing or recording such Mortgage Loans were paid;
(xxiv) Except for one Group I Mortgage Loan with a Principal
Balance of $83,016 as of the Cut-Off Date, no Mortgage Loan was originated
under a buydown plan;
(xxv) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature;
(xxvi) Each Property is located in the state identified in the
related Mortgage Loan Schedule and consists of one parcel of real property
(or several parcels secured by a blanket mortgage) with a residential
dwelling erected thereon;
(xxvii) Each Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the related Mortgage
Loan in the event the related Property is sold without the prior consent
of the mortgagee thereunder;
(xxviii) Any advances made after the date of origination of a
Mortgage Loan but prior to the Cut-Off Date have been consolidated with
the outstanding principal amount secured by the related Mortgage, and the
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secured principal amount, as consolidated, bears a single interest rate
and single repayment term reflected on the Mortgage Loan Schedule. The
consolidated principal amount does not exceed the original principal
amount of the related Mortgage Loan. No Note permits or obligates the
Master Servicer to make future advances to the related Mortgagor at the
option of the Mortgagor;
(xxix) There is no proceeding pending or threatened for the
total or partial condemnation of any Property, nor is such a proceeding
currently occurring, and each Property is undamaged by waste, fire,
earthquake or earth movement;
(xxx) All of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie wholly
within the boundaries and building restriction lines of such Property, and
no improvements on adjoining properties encroach upon such Property,
except in each case exceptions which are stated in the title insurance
policy and affirmatively insured;
(xxxi) 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 Owners
or the Trust to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the related Mortgagor;
(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Property of the benefits
of the security, including (A) in the case of a Mortgage designated as a
deed of trust, by trustee's sale and (B) otherwise by judicial
foreclosure. There is no homestead or other exemption available that would
materially interfere with the right to sell the related Property at a
trustee's sale or the right to foreclose on the related Mortgage;
(xxxiii) Except as provided by clause (xi) of this subsection
3.2(b), there is no default, breach, violation or event of acceleration
existing under any Mortgage or the related Note and no event which, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration; and the Seller has not waived any default, breach, violation
or event of acceleration;
(xxxiv) No instrument of release or waiver has been executed in
connection with any Mortgage Loan, and no Mortgagor has been released, in
whole or in part;
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(xxxv) Each Mortgage Loan conforms, and all such Mortgage Loans
in the aggregate conform, in all material respects to the description
thereof set forth in the Registration Statement;
(xxxvi) A full appraisal was performed with respect to each
Mortgage Loan; such appraisal was performed in material compliance with
the appraisal description set forth in the Prospectus;
(xxxvii) No more than 4.02% of the Original Pool Principal Balance
of the Mortgage Loans in Group I is secured by condominiums, townhouses or
rowhouses, no more than 4.03% of the Original Pool Principal Balance of
the Mortgage Loans in Group II is secured by condominiums, townhouses or
rowhouses and no more than 7.99% of the Original Pool Principal Balance of
the Mortgage Loans in Group III is secured by condominiums, townhouses or
rowhouses;
(xxxviii) The credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the description thereof
set forth in the Prospectus and the Prospectus Supplement and each
Mortgage Loan was underwritten in accordance therewith;
(xxxix) As of the Startup Day, the Seller had no actual knowledge
that there exists on any Property any hazardous substances, hazardous
wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation and Recovery Act of 1976, or other federal, state or local
environmental legislation;
(xl) No more than 0.634% of the Original Pool Principal
Balance of the Mortgage Loans in Group I is secured by Properties located
within any single zip code area, no more than 0.7534% of the Original Pool
Principal Balance of the Mortgage Loans in Group II is secured by
Properties located within any single zip code area and no more than
0.7905% of the Original Pool Principal Balance of the Mortgage Loans in
Group III is secured by Properties located within any single zip code
area; no more than 10.03% of the Original Pool Principal Balance of the
Mortgage Loans in Group I is located within any single state, no more than
13.15% of the Original Pool Principal Balance of the Mortgage Loans in
Group II is located within any single state and no more than 11.92% of the
Original Pool Principal Balance of the Mortgage Loans in Group III is
located within any single state.
(xli) At least 92.74% of the Original Group I Pool Principal
Balance, at least 98.43% of the Original Group II Pool Principal Balance
is secured by Properties that are owner occupied and at least 90.37% of
the Original Group III Pool Principal Balance is secured by Properties
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that are Owner occupied;
(xlii) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid;
(xliii) Except for payments in the nature of escrow payments,
including, without limitation, taxes and insurance payments, the Seller
has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage, except
for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is greater, to the day
which precedes by one month the due date of the first installment of
principal and interest;
(xliv) No improvement 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 all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities and the Mortgaged
Property is lawfully occupied under applicable law;
(xlv) The related Mortgage Note is not and has not been secured
by any collateral, pledged account or other security except the lien of
the corresponding Mortgage;
(xlvi) There is no obligation on the part of the Seller, the
originator, the Master Servicer, the Transferor, the Trustee or any other
Person to make payments in addition to those made by the Mortgagor;
(xlvii) With respect to each Second Mortgage Loan, the related
Senior Lien requires equal monthly payments, or if it bears an adjustable
interest rate, the monthly payments for the related Senior Lien may be
adjusted no more frequently than monthly;
(xlviii) With respect to each Second Mortgage Loan, either (i) no
consent for the Mortgage Loan is required by the holder of the related
Senior Lien or (ii) such consent has been obtained and is contained in the
File;
(xlix) With respect to any Senior Lien that provided for
negative amortization or deferred interest, the balance of such Senior
Lien used to calculate the Loan-to-Value Ratio for the Second Mortgage
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Loan is based on the maximum amount of negative amortization or deferred
interest possible under such Senior Lien;
(l) The maturity date of each Second Mortgage Loan is prior
to the maturity date of the related Senior Lien if such Senior Lien
provides for a balloon payment;
(li) All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Property is located, and (2)(A)
organized under the laws of such state, or (B) qualified to do business in
such state, or (C) federal savings and loans associations or national
banks having principal offices in such state or (D) not doing business in
such state so as to require qualification or licensing;
(lii) All amounts received on and after the Cut-Off Date with
respect to the Mortgage Loans to which the Master Servicer is not entitled
have been deposited into the Principal and Interest Account and are, as of
the Startup Day, in the Principal and Interest Account;
(liii) The Mortgage Loans were not selected for inclusion in
the Trust on any basis intended to adversely affect the Trust;
(liv) With respect to each Property subject to a land trust (a
"Land Trust Mortgage") (a) a trustee, duly qualified under applicable law
to serve as such, has been properly designated and currently so serves and
is named as such in the land trust agreement and such trustee is named in
the Land Trust Mortgage as Mortgagor; (b) all fees and expenses of the
land trustee which have previously become due and owing have been paid and
no fees or expenses are or will become payable by the Owners or the Trust
to the land trustee under the land trust agreement; (c) the beneficiary is
solely obligated to pay any fees and expenses of the land trustee and the
priority of the lien of the Land Trust Mortgage is not and will not be
primed by the land trustee; (d) the Mortgaged Property is occupied by the
beneficiary under the land trust agreement and, if such land trust
agreement terminates, the beneficiary will become the owner of the
Mortgaged Property; (e) the beneficiary is obligated to make payments
under the Note and will have personal liability for deficiency judgments;
(f) the Land Trust Mortgage and assignment of beneficial interest relating
to such land trust held by the Trust was made in compliance with the
related land trust agreement, was validly entered into by the related land
trust trustee or beneficiary and, does not currently, and will not in the
future, violate any provision of the related land trust agreement, nor any
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agreement between or amongst the beneficiaries of such land trust; (g) a
UCC financing statement has been filed, continued, and will be continued,
without intervening liens, as the first lien upon any assignment of
beneficial interest in the Land Trust Mortgage; (h) the assignment of
beneficial interest with respect to such Land Trust Mortgage held by the
Trust was at the time of such assignment the only assignment of such
beneficial interest in the Land Trust Mortgage, such assignment was
accepted by, and noted in the records of the land trust trustee,
subsequent assignment of the beneficial interest in whole or in part has
not been made, and such subsequent assignment of the beneficial interest
or any part thereof is not permitted pursuant to a written agreement
between the respective beneficiary and the Mortgagee, until the expiration
of the Note relating to the Land Trust Mortgage; (i) the Land Trust
Mortgage is the first or second lien on the Property; no lien is in place
against the beneficial interests, or any part thereof, of such Land Trust
Mortgage or collateral assignment of beneficial interest, which liens are
superior to the interest held by the Seller and the beneficial interest,
or any part thereof, of any such Land Trust Mortgage or collateral
assignment of beneficial interest has not been pledged as security for any
other debt; and the beneficiary or land trust trustee is forbidden,
pursuant to a written agreement between the beneficiary or the land trust
trustee (as applicable) and the Mortgagee, from using the land trust
property or beneficial interest, or any part of either, as security for
any other debt until the expiration date of its respective Note; and (x)
the terms and conditions of the land trust agreement do not prevent the
free and absolute marketability of the Mortgaged Property. As of the
Cut-Off Date, the aggregate Principal Balances of Land Trust Mortgage
Loans with related Mortgaged Properties subject to land trusts does not
exceed 2.50% of the Original Pool Principal Balance.
(lv) With respect to each Property subject to a ground lease
(a) the current ground lessor has been identified and all ground rents
which previously became due and owing have been paid; (b) the ground lease
term extends, or is automatically renewable, for at least five years
beyond the maturity date of the related Mortgage Loan; (c) the ground
lease has been duly executed and recorded; (d) the amount of the ground
rent and any increases therein are clearly identified in the lease and are
for predetermined amounts at predetermined times; (e) the ground rent
payment is included in the Mortgagor's monthly payment as an expense item;
(f) the Trust has the right to cure defaults on the ground lease; and (g)
the terms and conditions of the leasehold do not prevent the free and
absolute marketability of the Property. As of the Cut-Off Date, the
aggregate Principal Balance of Mortgage Loans with related Mortgaged
Properties subject to ground leases does not exceed 5% of the Original
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Pool Principal Balance.
(lvi) None of the Mortgage Loans are subject to a plan of
bankruptcy or have borrowers that have sought protection or relief under
any state or federal bankruptcy or insolvency law during the term of the
related Mortgage. With respect to each Mortgage Loan which has been the
subject of bankruptcy or insolvency proceedings, (a) as of the Cut-Off
Date, the Mortgagor is not contractually delinquent more than 30 days with
respect to any payment due under the related plan, (b) the current
Loan-to-Value Ratio is less than or equal to 85% and (c) either (i) if the
current Loan-to-Value Ratio is between 60% and 85%, as of the Cut-Off
Date, the Mortgagor has made at least six consecutive payments under the
related Plan or (ii) if the current Loan-to-Value Ratio is less than 60%
as of the Cut-Off Date, the Mortgagor has made at least three consecutive
payments under the related plan.
(lvii) To the best of the Seller's knowledge, there is no error,
omission, misrepresentation, fraud or similar occurrence with respect to a
Mortgage Loan has taken place on the part of any person, including without
limitation the Mortgagor, any appraiser, any builder or developer, or any
other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan.
(c) In the event that any Qualified Replacement Mortgage is
delivered by the Seller to the Trust pursuant to this Section 3.2, the Seller
shall be obligated to take the actions described in subsection (a) above with
respect to such Qualified Replacement Mortgage upon the discovery by any of the
Owners, the Seller, the Master Servicer, the Transferor, the Certificate
Insurer, any Sub-Servicer or the Trustee that the statements set forth in
subsections (ii), (x), (xiii), (xix), (xxxii), (xxxiii) or (xxxix) of subsection
(b) above are untrue in any material respect on the date such Qualified
Replacement Mortgage is conveyed to the Trust or that any of the other
statements set forth in subsection (b) hereof are untrue on the date such
Qualified Replacement Mortgage is conveyed to the Trust such that the interests
of the Owners or the Certificate Insurer in the related Qualified Replacement
Mortgage are materially and adversely affected; provided, however, that for the
purposes of this subsection (c) the statements in subsection (b) hereof
referring to items "as of the Cut-Off Date" or "as of the Startup Day" shall be
deemed to refer to such items as of the date such Qualified Replacement Mortgage
is conveyed to the Trust.
(d) It is understood and agreed that the covenants set forth in this
Section 3.2 shall survive delivery of the respective Mortgage Loans (including
Qualified Replacement Mortgage Loans) to the Trustee.
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(e) The Seller hereby assigns to the Trustee on behalf of the Owners
and the Certificate Insurer all of its rights to recovery for breaches of
representations and warranties given by the originators of such Mortgage Loans
that are similar in import to the following (but only to the extent such
representations are given and to the extent such rights are assignable): no
error omission, misrepresentation, fraud or similar occurrence with respect to a
Mortgage Loan has taken place on the part of any person, including without
limitation the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination of the Mortgage Loan or in the application of
any insurance in relation to such Mortgage Loan. Notwithstanding such
assignment, none of the Owners, the Certificate Insurer or the Trustee may
enforce any such remedy except to the extent that the Seller is unwilling to
enforce the remedy.
Section 3.3. Conveyance of the Mortgage Loans and Qualified
Replacement Mortgages. (a) The Transferor hereby transfers, assigns, sets over
and otherwise conveys without representation, warranty or recourse, to the
Trust, all right, title and interest of the Transferor in and to each Mortgage
Loan listed on the Mortgage Loan Schedule delivered by the Transferor on the
Startup Day, and all its right, title and interest in and to (i) scheduled
payments of interest due on each Mortgage Loan after the Cut-Off Date, (ii)
scheduled payments of principal due, and unscheduled collections of principal
received, on each Mortgage Loan on and after the Cut-Off Date, and (iii) its
Insurance Policies; such transfer of the Mortgage Loans set forth on the
Mortgage Loan Schedule to the Trust is absolute and is intended by the Owners
and all parties hereto to be treated as a sale to the Trust.
(b) In connection with the transfer and assignment of the Mortgage
Loans by the Seller to the Transferor pursuant to the Purchase and Sale
Agreement, and by the Transferor to the Trust pursuant to this Agreement, on the
Startup Day, the Seller agrees to:
(i) deliver, or cause to be delivered, without recourse to the
Trustee on behalf of the Trust on the Startup Day with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule (A) the original Notes
or, if any original Note has been lost or destroyed, certified copies
thereof (together with a lost note affidavit), endorsed without recourse
by the originator (or most recent payee) thereof "Pay to the order of The
Chase Manhattan Bank, as Trustee", (B) originals (subject to the
provisions of paragraph (d) below relating to items in the process of
being recorded) of all intervening assignments, showing a complete chain
of assignment from origination to assignment to the Trustee, including
warehousing assignments, with evidence of recording thereon, (C) originals
of all assumption and modification agreements, if any, and (D) either: (1)
the original Mortgage (subject to the provisions of paragraph (d) below
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relating to items in the process of being recorded), with evidence of
recording thereon, or (2) a copy of the Mortgage certified by the public
recording office in those instances where the original recorded Mortgage
has been lost and (E) the original lender's title insurance policy issued
on the date of origination of such Mortgage Loan, together with any
endorsements thereto; provided, however, that, subject to Sections 3.3(d)
and 3.4(b), the Seller shall not be required to prepare an assignment for
any Mortgage as to which the original recording information is lacking;
and provided, further, that pending the issuance of the final title
policy, the Seller shall deliver the title commitment or title binder to
insure same; and
(ii) cause, within 10 Business Days following the Startup Day,
assignments of the Mortgages from the related originator to The Chase
Manhattan Bank to be submitted for recording in the appropriate
jurisdictions to perfect the Trustee's lien thereunder as against
creditors of or purchasers from the Seller, provided, however, that the
Seller need not cause any assignment to be submitted with respect to which
the Seller provides to the Trustee an opinion of counsel reasonably
acceptable to the Certificate Insurer to the effect that such recordation
is not necessary; the above-listed items constituting the "File" for the
related Mortgage Loan;
(c) Notwithstanding anything to the contrary contained in this
Section 3.3, in those instances where the public recording office retains the
original Mortgage, the assignment of a Mortgage or the intervening assignments
of the Mortgage after it has been recorded, the Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage, such assignment or assignments of Mortgage certified by the
public recording office to be a true copy of the recorded original thereof.
(d) Not later than ten days following the end of the 10-Business
Day period referred to in clause (b)(ii) above, the Seller shall deliver, or
cause to be delivered, to the Trustee copies of all Mortgage assignments
submitted for recording, together with a list of all Mortgages for which no
Mortgage assignment has yet been submitted for recording, which list shall state
the reason why such Mortgage assignments have not been submitted for recording.
With respect to any Mortgage assignment disclosed on such list as not yet
submitted for recording for a reason other than a lack of original recording
information, the Trustee shall make an immediate demand on the Seller to
prepare, or cause to be prepared, such Mortgage assignments, and shall inform
the Certificate Insurer of the Seller's failure to prepare such Mortgage
assignments. Thereafter, the Trustee shall cooperate in executing any documents
submitted to the Trustee in connection with this provision. Thereafter, the
Seller shall prepare, or cause to be prepared, a Mortgage assignment for any
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Mortgage for which original recording information is Mortgage assignment for any
Mortgage for which original recording information is subsequently received by
the Seller, and shall promptly deliver a copy of such Mortgage assignment to the
Trustee.
Neither the Master Servicer nor the Trustee shall be responsible for
the costs of recording any Mortgage or any assignment of Mortgage pursuant to
this Section 3.3.
Copies of all Mortgage assignments received by the Trustee shall be
kept in the related File. The Seller shall promptly deliver, or cause to be
delivered, to the Trustee such original Mortgage or intervening mortgage
assignment with evidence of recording indicated thereon upon receipt thereof
from the public recording official. If the Seller within nine months from the
Startup Day shall not have received such original Mortgage or intervening
mortgage assignment from the public recording official, it shall obtain and
deliver, or cause to be delivered, to the Trustee within ten months from the
Startup Day, a copy of such original Mortgage or mortgage assignment certified
by such public recording official to be a true and complete copy of such
original Mortgage or mortgage assignment as recorded by such public recording
office.
(e) In the case of Mortgage Loans which have been prepaid in full on
or after the Cut-Off Date and prior to the Startup Day, the Seller, in lieu of
the foregoing, will deliver within 15 days after the Startup Day to the Trustee
a certification of an Authorized Officer in the form set forth in Exhibit J.
(f) The Seller (or an affiliate thereof) shall sell, transfer,
assign, set over and otherwise convey without recourse, to the Trustee all its
right, title and interest in and to any Qualified Replacement Mortgage delivered
by it to the Trustee on behalf of the Trust pursuant to Section 3.2 or 3.4
hereof and all its right, title and interest to principal collected and interest
accruing on such Qualified Replacement Mortgage on and after the applicable
Replacement Cut-Off Date; provided, however, that the Seller (or such affiliate)
shall reserve and retain all right, title and interest in and to payments of
principal and interest due on such Qualified Replacement Mortgage prior to the
applicable Replacement Cut-Off Date.
(g) As to each Mortgage Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee
will transfer, assign, set over and otherwise convey without representation,
warranty or recourse, on the Seller's order, all of its right, title and
interest in and to such released Mortgage Loan and all the Trust's right, title
and interest in and to principal collected and interest accruing on such
released Mortgage Loan on and after the applicable Replacement Cut-Off Date;
provided, however, that the Trust shall reserve and retain all right, title and
interest in and to payments of principal collected and interest accruing on
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such released Mortgage Loan prior to the applicable Replacement Cut-Off Date.
(h) In connection with any transfer and assignment of a Qualified
Replacement Mortgage to the Trustee on behalf of the Trust, the Seller agrees to
deliver to the Trustee the items described in Section 3.3(b) on the date of such
transfer and assignment or, if a later delivery time is permitted by Section
3.3(b), then no later than such later delivery time.
(i) As to each Mortgage Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage the Trustee shall
deliver on the date of conveyance of such Qualified Replacement Mortgage and on
the order of the Seller (i) the original Note, or the certified copy, relating
thereto, endorsed without recourse, to the Seller, and (ii) such other documents
as constituted the File with respect thereto.
(j) If a Mortgage assignment is lost during the process of
recording, or is returned from the recorder's office unrecorded due to a defect
therein, the Seller shall prepare or cause to be prepared a substitute
assignment or cure such defect, as the case may be, and thereafter cause each
such assignment to be duly recorded.
(k) The Seller shall reflect on its records that the Mortgage Loans
have been sold to the Trust.
Section 3.4. Acceptance by Trustee; Certain Substitutions of
Mortgage Loans; Certification by Trustee. (a) The Trustee agrees to execute and
deliver on the Startup Day an acknowledgment of receipt of the items delivered
by the Seller in the form attached as Exhibit K hereto (the "Initial Trustee
Certification"), and declares that it will hold such documents and any
amendments, replacement or supplements thereto, as well as any other assets
included in the definition of Trust Estate and delivered to the Trustee, as
Trustee in trust upon and subject to the conditions set forth herein for the
benefit of the Owners. The Trustee agrees, for the benefit of the Owners, to
review such items within 45 days after the Startup Day (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Replacement Mortgage, within 45 days after the
assignment thereof) and to deliver to the Seller, the Master Servicer, any
Sub-Servicer, the Transferor and the Certificate Insurer a Pool Certification in
the form attached hereto as Exhibit L (the "Interim Trustee Certification").
Within 12 months from the Startup Day, the Trustee shall review the contents of
the Files and deliver to the Seller, the Master Servicer, any Sub-Servicer, the
Transferor and the Certificate Insurer a Pool Certification in the form attached
hereto as Exhibit M (the "Final Trustee Certification").
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The Trustee shall certify in the Initial Trustee Certification that
it has examined each Note to confirm that except as otherwise described in such
certification it is in possession of an executed original Note endorsed to the
Trustee. The Trustee shall certify in the Interim and Final Trustee
Certifications that except as described in such certification, 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 are in its possession and have been
executed, (ii) the original Note bearing an original endorsement to the Trustee
from the original payee (or set of original endorsements evidencing a complete
chain of title from the original payee to the Trustee) is in its possession;
(iii) such documents have been reviewed by it and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Mortgage Loan
identified in the Mortgage Loan Schedule and (iv) based on its examination and
only as to the foregoing documents, the information set forth on the Mortgage
Loan Schedule as to loan number, name of mortgagor and address, date of
origination, the original stated maturity date, the Original Principal Balance,
the Coupon Rate, the scheduled monthly payment of principal and interest and the
date in each month or which the related payments are due, accurately reflects
the information set forth in the File. The Trustee shall be under no duty or
obligation pursuant to this Section 3.4 to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face, nor shall the Trustee be
under any duty to determine independently whether there are any intervening
assignments or assumption or modification agreements with respect to any
Mortgage Loan. In the Interim and Final Trustee Certifications, the Trustee
based on its examination of the Files shall also either confirm, or list as an
exception that:
(i) each Note and Mortgage bears an original signature or signatures
purporting to be that of the person or persons named as the maker and
mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by the Mortgage is
identical to the original principal amount of the Note;
(iii) the assignment of Mortgage is in the form "The Chase Manhattan Bank,
as Trustee" and bears a signature that purports to be the signature of an
authorized officer of the Person which the related File suggests was the
immediately prior record holder of such Mortgage;
(iv) if intervening assignments are included in the File, each such
intervening assignment bears a signature that purports to be the signature of
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the mortgagee/beneficiary and/or the assignee;
(v) the address of the real property set forth in the title insurance
policy or preliminary title report or commitment to issue a title policy is
identical to the real property address contained in the Mortgage and such policy
or commitment is for an amount equal to the original principal amount of the
Note; and
(vi) it has received an original Mortgage with evidence of recordation and
assignment, in each case, with evidence of recordation thereon or a copy thereof
certified to be true and correct by the public recording office in possession of
such Mortgage and assignment.
Following the delivery of the Final Trustee Certification, the Trustee shall
provide to the Seller, the Master Servicer, the Transferor and the Certificate
Insurer no less frequently than monthly, updated certifications indicating the
then current status of exceptions, until all such exceptions have been
eliminated.
(b) If the Trustee during such 45-day period in connection with the
Interim Trustee Certification, or 12-month period in connection with the Final
Trustee Certification finds any document constituting a part of a File which is
not properly executed, has not been received, or is unrelated to the Mortgage
Loans identified in the Mortgage Loan Schedule or the Trustee is unable to make
any of the other required certifications, or that any Mortgage Loan does not
conform in a material respect to the description thereof as set forth in the
Mortgage Loan Schedule, the Trustee shall promptly so notify the Seller, the
Master Servicer, the Transferor and the Certificate Insurer. In performing any
such review, the Trustee may conclusively rely on the Seller as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's review of the items delivered by the Seller
pursuant to Section 3.3(b)(i) is limited solely to such procedures as are
necessary to enable the Trustee to complete Exhibits K, L and M hereto.
The Seller agrees to use reasonable efforts to remedy a material
defect in a document constituting part of a File of which it is so notified by
the Trustee. If, however, (i) in the case of a defect consisting of the failure
of the Seller to deliver an original Mortgage and any intervening mortgage
assignment evidencing a complete chain of title to the Trustee with evidence of
recording thereon, on the first Remittance Date following the 12 month period
from the Startup Day and (ii) in the case of all other defects within 60 days
after the Trustee's notice to it respecting such defect the Seller has not
remedied the defect and the defect materially and adversely affects the interest
in the related Mortgage Loan of the Owners or of the Certificate Insurer, the
Seller will on the next succeeding Remittance Date (i) substitute in lieu of
such Mortgage Loan a Qualified Replacement Mortgage and, deliver the
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Substitution Amount applicable thereto to the Master Servicer for deposit in the
Principal and Interest Account or (ii) purchase such Mortgage Loan at a purchase
price equal to the Loan Purchase Price thereof, which purchase price shall be
delivered to the Master Servicer for deposit in the Principal and Interest
Account.
In connection with any such proposed purchase or substitution the
Seller shall cause at the Seller's expense to be delivered to the Trustee and to
the Certificate Insurer an opinion of counsel experienced in federal income tax
matters stating whether or not such a proposed purchase or substitution would
constitute a Prohibited Transaction for the Trust or would jeopardize the status
of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, and the
Seller shall only be required to take either such action to the extent such
action would not constitute a Prohibited Transaction for either the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC or would not jeopardize the status of
either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC. Any required
purchase or substitution, if delayed by the absence of such opinion shall
nonetheless occur upon the earlier of (i) the occurrence of a default or
imminent default with respect to the Mortgage Loan or (ii) the delivery of such
opinion.
Section 3.5. Cooperation Procedures. (a) The Seller shall, in
connection with the delivery of each Qualified Replacement Mortgage to the
Trustee, provide the Trustee with the information set forth in the related
Mortgage Loan Schedule with respect to such Qualified Replacement Mortgage.
(b) The Seller and the Trustee covenant to provide each other and
the Certificate Insurer with all data and information required to be provided by
them hereunder at the times required hereunder, and additionally covenant
reasonably to cooperate with each other in providing any additional information
required by any of them or the Certificate Insurer in connection with their
respective duties hereunder.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
Section 4.1. Issuance of Certificates. On the Startup Day, upon the
Trustee's receipt from the Seller of an executed Delivery Order in the form set
forth as Exhibit H hereto, the Trustee shall execute, authenticate and deliver
the Certificates on behalf of the Trust in accordance with the directions set
forth in such Delivery Order.
Section 4.2. Sale of Certificates. At 11 a.m. New York City time on
the Startup Day, at the offices of Dewey Ballantine, 1301 Sixth Avenue, New
York, New York, the Seller will sell and convey the Mortgage Loans and the
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money, instruments and other property related thereto to the Trustee, and the
Trustee will (i) hold the Class A Certificates as transfer agent for the
Depository, with an aggregate Percentage Interest in each Class equal to 100%,
registered in the name of Cede & Co. or in such other names as the Underwriters
shall direct against payment of the purchase price thereof by wire transfer of
immediately available funds to the Trustee for disbursement to the Seller and
(ii) deliver to the Seller, the Class B Certificates and the Residual
Certificates, with an aggregate Percentage Interest equal to 100%, registered as
the Seller shall request. Upon receipt of the proceeds of the sale of the
Certificates, the Seller shall (a) pay the initial premiums due to the
Certificate Insurer and (b) pay other fees and expenses identified by the
Seller.
ARTICLE V
CERTIFICATES AND TRANSFER OF INTERESTS
Section 5.1. Terms. (a) The Certificates are pass-through securities
having the rights described therein and herein. Distributions on the
Certificates are payable solely from payments received on or with respect to the
Mortgage Loans (other than the Master Servicing Fees), moneys in the Certificate
Account, the Principal and Interest Account, the Supplemental Interest Payment
Account, Insured Payments made by the Certificate Insurer, Delinquency Advances
and Compensating Interest payments made by the Master Servicer or otherwise held
by the Master Servicer in trust for the Owners, except as otherwise provided
herein, and from earnings on moneys and the proceeds of property held as a part
of the Trust Estate. Each Certificate entitles the Owner thereof to receive
distributions in accordance with this Agreement and in a specified portion of
the aggregate distribution due to the related Class of Certificates, pro rata in
accordance with such Owner's Percentage Interest and in the case of the Class
A-6 Certificates and the Class A-7 Certificates, certain amounts payable from
the Supplemental Interest Payment Account.
(b) Each Owner is required, and hereby agrees, to return to the
Trustee any Certificate with respect to which the Trustee has made the final
distribution due thereon. Any such Certificate as to which the Trustee has made
the final distribution thereon shall be deemed cancelled and shall no longer be
Outstanding for any purpose of this Agreement, whether or not such Certificate
is ever returned to the Trustee.
Section 5.2. Forms. The Certificates of each Class shall be in
substantially the forms set forth as the related Exhibits to this Agreement,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement or as may in the Seller's
judgment be necessary, appropriate or convenient to comply, or facilitate
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compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any applicable securities laws or as
may, consistently herewith, be determined necessary by the Authorized Officer of
the Trustee executing such Certificates, as evidenced by his execution thereof.
Section 5.3. Execution, Authentication and Delivery. Each
Certificate shall be executed on behalf of the Trust, by the manual signature of
one of the Trustee's Authorized Officers and shall be authenticated by the
manual signature of one of the Trustee's Authorized Officers.
Certificates bearing the manual signature of individuals who were at
any time the proper officers of the Trustee shall bind the Trust,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the execution and delivery of such Certificates or did not hold
such offices at the date of authentication of such Certificates.
No Certificate shall be valid until executed and authenticated as
set forth above.
Certificates delivered on the Startup Day shall be dated the Startup
Day; all Certificates delivered thereafter shall be dated the date of
authentication.
Section 5.4. Registration and Transfer of Certificates. (a) The
Trustee shall cause to be kept a register (the "Register") in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and the registration of transfer of
Certificates.
(b) Subject to the provisions of Section 5.8 hereof with respect to
the Unregistered Certificates, upon surrender for registration of transfer of
any Certificate at the office designated as the location of the Register, the
Trustee shall execute and authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of a like
Class and in the aggregate principal or notional amount of the Certificate so
surrendered.
(c) At the option of any Owner, Certificates of any Class owned by
such Owner may be exchanged for other Certificates authorized of like Class,
tenor and a like aggregate original principal or notional amount and bearing
numbers not contemporaneously outstanding, upon surrender of the Certificates to
be exchanged at the office designated as the location of the Register. Whenever
any Certificate is so surrendered for exchange, the Trustee shall execute and
authenticate and deliver the Certificate or Certificates which the Owner making
the exchange is entitled to receive.
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(d) All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid evidence of the same ownership interests
in the Trust and entitled to the same benefits under this Agreement as the
Certificates surrendered upon such registration of transfer or exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Owner thereof or his attorney duly authorized in writing.
(f) No service charge shall be made to an Owner for any registration
of transfer or exchange of Certificates, 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 registration of transfer or exchange of
Certificates; any other expenses in connection with such transfer or exchange
shall be an expense of the Trust.
(g) It is intended that the Class A Certificates be registered so as
to participate in a global book-entry system with the Depository, as set forth
herein. Each Class of Class A Certificates shall be initially issued in the form
of a single fully registered Class A Certificate of the related Class with a
denomination equal to the original principal balance of the related Class. Upon
initial issuance, the ownership of such Class A Certificates shall be registered
in the Register in the name of Cede & Co., or any successor thereto, as nominee
for the Depository.
The minimum denominations shall be $1,000 for any Class A
Certificate, $100,000 for any Class B Certificate, and 10% Percentage Interest
for any Residual Certificate.
The Seller and the Trustee are hereby authorized to execute and
deliver the Representation Letter with the Depository.
With respect to Class A Certificates registered in the Register in
the name of Cede & Co., as nominee of the Depository, the Seller, the Master
Servicer, the Transferor and the Trustee shall have no responsibility or
obligation to the Depository's "Direct Participants" or "Indirect Participants"
or beneficial owners for which the Depository holds Class A Certificates from
time to time as a Depository. Without limiting the immediately preceding
sentence, the Seller, the Master Servicer, the Transferor and the Trustee shall
have no responsibility or obligation with respect to (i) the accuracy of the
records of the Depository, Cede & Co., or any Direct or Indirect Participant
with respect to the ownership interest in the Class A Certificates, (ii) the
delivery to any Direct or Indirect Participant or any other Person, other than a
registered Owner of a Class A Certificate as shown in the Register, of any
notice with respect to the Class A Certificates or (iii) the payment to, or
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withholding with respect to, any Direct or Indirect Participant or any other
Person, other than a registered Owner of a Class A Certificate as shown in the
Register, of any amount with respect to any distribution of principal or
interest on the Class A Certificates. No Person other than a registered Owner of
a Class A Certificate as shown in the Register shall receive a certificate
evidencing such Class A Certificate. The Certificate Issuer shall have no
responsibility for or obligation with respect to the accuracy of the records of
the Depository, Cede & Co., or any Direct or Indirect Participant with respect
to the ownership interest in the Class A Certificates.
Upon delivery by the Depository to the Trustee of written notice to
the effect that the Depository has determined to substitute a new nominee in
place of Cede & Co., and subject to the provisions hereof with respect to the
payment of interest by the mailing of checks or drafts to the registered Owners
of Class A Certificates appearing as registered Owners in the registration books
maintained by the Trustee at the close of business on a Record Date, the name
"Cede & Co." in this Agreement shall refer to such new nominee of the
Depository.
(h) In the event that (i) the Depository or the Seller advises the
Trustee in writing that the Depository is no longer willing or able to discharge
properly its responsibilities as nominee and depository with respect to the
Class A Certificates and the Seller is unable to locate a qualified successor,
(ii) the Seller at its sole option elects to terminate the book-entry system
through the Depository or (iii) after an Event of Default, Owners of
Certificates evidencing at least 51% Percentage Interests of any Class affected
thereby notify the Seller that the continuation of a book-entry system is not in
the best interests of such Class of Owners, the Class A Certificates or any
Class, as applicable, shall no longer be restricted to being registered in the
Register in the name of Cede & Co. (or a successor nominee) as nominee of the
Depository. At that time, the Class A Certificates shall be registered in the
name of and deposited with a successor depository operating a global book-entry
system, as may be acceptable to the Seller, or such depository's agent or
designee but, if the Seller does not select such alternative global book-entry
system, then the Trustee shall notify the Owners of the Class A Certificates in
writing of the termination of the book-entry system and the Class A Certificates
may be registered in whatever name or names registered Owners of Class A
Certificates transferring Class A Certificates shall designate, in accordance
with the provisions hereof.
(i) Notwithstanding any other provision of this Agreement to the
contrary, so long as any Class A Certificate is registered in the name of Cede &
Co., as nominee of the Depository, all distributions of principal or interest on
such Class A Certificates and all notices with respect to such Class A
Certificates shall be made and given, respectively, in the manner provided in
the Representation Letter.
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Section 5.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) in the case of any mutilated Certificate, such mutilated
Certificate shall first be surrendered to the Trustee, and in the case of any
destroyed, lost or stolen Certificate, there shall be first delivered to the
Trustee such security or indemnity as may be reasonably required by it to hold
the Trustee 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 and authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and aggregate principal amount, bearing a number not
contemporaneously outstanding.
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; any other expense
in connection with such issuance shall be an expense of the Owner.
Every new Certificate issued pursuant to this Section in exchange
for or in lieu of any mutilated, destroyed, lost or stolen Certificate shall
constitute evidence of a substitute interest in the Trust, and shall be entitled
to all the benefits of this Agreement equally and proportionately with any and
all other Certificates of the same Class duly issued hereunder and such
mutilated, destroyed, lost or stolen Certificate shall not be valid for any
purpose.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Persons Deemed Owners. The Trustee and the Certificate
Insurer and any of their respective agents may treat the Person in whose name
any Certificate is registered as the Owner of such Certificate for the purpose
of receiving distributions with respect to such Certificate and for all other
purposes whatsoever, and neither the Trustee nor the Certificate Insurer nor any
of their respective agents shall be affected by notice to the contrary.
Section 5.7. Cancellation. All Certificates surrendered for
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. No Certificate shall be authenticated in lieu of or in exchange for any
Certificate cancelled as provided in this Section, except as expressly permitted
by this Agreement. All cancelled Certificates may be held or destroyed by the
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Trustee in accordance with its standard policies.
Section 5.8. Limitation on Transfer of Ownership Rights. (a) No sale
or other transfer of any Unregistered Certificate (other than the initial sale
of the Unregistered Certificates upon the issuance thereof) shall be made to any
Person unless such Person delivers to the Trustee (i) a completed certificate in
the form attached as Exhibit D hereto, (ii) if required by the terms of such
certificate, an opinion to the effect that such sale or other transfer will not
violate any applicable federal or state securities laws and (iii) an opinion
that such transfer will not jeopardize the REMIC status of either REMIC or the
deductibility of interest with respect to the Certificates; no sale or other
transfer of any Unregistered Certificate shall be made to any Person until such
Person delivers to the Trustee either (i) an opinion of counsel from the
prospective transferee of such Certificate, acceptable to, and in form and
substance satisfactory to the Seller, to the effect that such transferee is not
a pension or benefit plan or individual retirement arrangement that is subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
to Section 4975 of the Code or an entity whose underlying assets are deemed to
be assets of such a plan or arrangement by reason of such plan's or
arrangement's investments in the entity, as determined under U.S. Department of
Labor Regulations 29 C.F.R. ss. 2510.3-101 or otherwise, collectively, a "Plan"
or (ii) the representation set forth in Paragraph D of Exhibit D hereto.
(b) No sale or other transfer of record or beneficial ownership of a
Residual Certificate (whether pursuant to a purchase, a transfer resulting from
a default under a secured lending agreement or otherwise) shall be made to a
Disqualified Organization. The transfer, sale or other disposition of a Residual
Certificate (whether pursuant to a purchase, a transfer resulting from a default
under a secured lending agreement or otherwise) to a Disqualified Organization
shall be deemed to be of no legal force or effect whatsoever and such transferee
shall not be deemed to be an Owner for any purpose hereunder, including, but not
limited to, the receipt of distributions on such Residual Certificate.
Furthermore, in no event shall the Trustee accept surrender for transfer,
registration of transfer, or register the transfer, of any Residual Certificate
nor authenticate and make available any new Residual Certificate unless the
Trustee has received an affidavit from the proposed transferee in the form
attached hereto as Exhibit E. Each holder of a Residual Certificate by his
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 5.8(b).
(c) Notwithstanding anything to the contrary herein, no sale or
other transfer of record or beneficial ownership of a Class B Certificate or a
Residual Certificate shall be made to any Person until such Person delivers to
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the Trustee either (i) an opinion of counsel from the prospective transferee of
such Certificate, acceptable to, and in form and substance satisfactory to the
Seller, to the effect that such transferee is not a Plan or (ii) the
representation set forth in Paragraph D of Exhibit D hereto. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Seller, the Master Servicer, the Transferor, the Certificate
Insurer and the Trustee against any liability, cost or expense (including
attorney's fees) that may result if the transfer is in violation of such
statute.
Section 5.9. Assignment of Rights. An Owner may pledge, encumber,
hypothecate or assign all or any part of its right to receive distributions
hereunder, but such pledge, encumbrance, hypothecation or assignment shall not
constitute a transfer of an ownership interest sufficient to render the
transferee an Owner of the Trust without compliance with the provisions of
Section 5.4 and Section 5.8 hereof.
ARTICLE VI
COVENANTS
Section 6.1. Distributions. On each Payment Date, the Trustee will
distribute, from funds comprising the Trust Estate, to the Owners of record of
the Certificates as of the related Record Date, such Owners' Percentage
Interests in the amounts required to be distributed to the Owners of each Class
of Certificates on such Payment Date. For so long as the Class A Certificates
are in book-entry form with the Depository, the only "Owner" of the Class A
Certificates will be the Depository.
Section 6.2. Money for Distributions to be Held in Trust;
Withholding. (a) All payments of amounts due and payable with respect to any
Certificate that are to be made from amounts withdrawn from the Certificate
Account pursuant to Section 7.3 hereof shall be made by and on behalf of the
Trustee.
(b) The Trustee on behalf of the Trust shall comply with all
requirements of the Code and applicable state and local law with respect to the
withholding from any distributions made by it to any Owner of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
(c) Any money held by the Trustee in trust for the payment of any
amount due with respect to any Class A Certificate, Class B Certificate or
Residual Certificate and remaining unclaimed by the Owner of such certificate
for three years after such amount has become due and payable shall be discharged
from such trust and be paid to the Seller; and the Owner of such Class A
Certificate, Class B Certificate or Residual Certificate shall thereafter, as an
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unsecured general creditor, look only to the Seller for payment thereof (but
only to the extent of the amounts so paid to the Seller), and all liability of
the Trustee with respect to such trust money shall thereupon cease; provided,
however, that the Trustee, before being required to make any such payment, shall
at the written request and expense of the Seller cause to be published once, in
the eastern edition of The Wall Street Journal, notice that such money remains
unclaimed and that, after a date specified therein, which shall be not fewer
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be paid to the Seller. The Trustee shall, at the
direction of the Seller, also adopt and employ, at the expense of the Seller,
any other reasonable means of notification of such payment (including, but not
limited to, mailing notice of such payment to Owners whose right to or interest
in moneys due and payable but not claimed is determinable from the records of
the Trustee at the last address of record for each such Owner).
Section 6.3. Protection of Trust Estate. (a) The Trustee will hold
the Trust Estate in trust for the benefit of the Owners and, upon request of the
Certificate Insurer or the Seller and at the expense of the Seller, will from
time to time execute and deliver all such supplements and amendments hereto
pursuant to Section 12.14 hereof and all instruments of further assurance and
other instruments, and will take such other action upon such reasonable request,
to:
(i) more effectively hold in trust all or any portion of the Trust
Estate;
(ii) perfect, publish notice of, or protect the validity of any
grant made or to be made by this Agreement;
(iii) enforce any of the Mortgage Loans;
(iv) preserve and defend title to the Trust Estate and the rights of
the Trustee, and the ownership interests of the Owners represented
thereby, in such Trust Estate against the claims of all Persons and
parties; or
(v) perfect a security interest in the Mortgage Loans, in the event
that the conveyance by the Seller did not constitute a sale.
(b) The Trustee shall have the power to enforce, and shall enforce
the obligations of the other parties to this Agreement by action, suit or
proceeding at law or equity, and shall also have the power to enjoin, by action
or suit in equity, any acts or occurrences which may be unlawful or in violation
of the rights of the Owners; provided, however, that nothing in this Section
shall require any action by the Trustee unless the Trustee shall first (i) have
been furnished indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such action and (ii) when required
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by this Agreement, have been requested to take such action by the Certificate
Insurer, or, with the consent of the Certificate Insurer by a majority of the
Percentage Interests represented by any Class of Class A Certificates, or, if
there are no longer any Class A Certificates then Outstanding, by such
percentage of the Percentage Interests represented by any Class of Class B
Certificates then Outstanding.
(c) The Trustee shall execute any instrument reasonably required
pursuant to this Section so long as such instrument does not conflict with this
Agreement or with the Trustee's fiduciary duties.
Section 6.4. Performance of Obligations. The Trustee will not take
any action that would release the Seller, the Master Servicer or the Transferor
from any of their respective covenants or obligations under any instrument or
document relating to the Trust Estate or the Certificates or which would result
in the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or document, except
with the prior written consent of the Certificate Insurer, or as expressly
provided in this Agreement or such other instrument or document.
Section 6.5. Negative Covenants. The Trustee will not,
to the extent within the control of the Trustee, take any of the
following actions:
(i) sell, transfer, exchange or otherwise dispose of any of the
Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of the Certificates (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Owner by reason of the payment of any taxes
levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty on behalf of the Trust any
indebtedness of any Person except pursuant to this Agreement;
(iv) dissolve or liquidate in whole or in part the Trust Estate,
except pursuant to Article VIII hereof; or
(v) (A) impair the validity or effectiveness of this Agreement, or
release any Person from any covenants or obligations with respect to the
Trust or to the Certificates under this Agreement, except as may be
expressly permitted hereby or (B) create or extend any lien, charge,
adverse claim, security interest, mortgage or other encumbrance to or
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upon the Trust Estate or any part thereof or any interest therein or the
proceeds thereof.
Section 6.6. No Other Powers. The Trustee will not, to the extent
within the control of the Trustee, permit the Trust to engage in any business
activity or transaction other than those activities permitted by Section 2.3
hereof.
Section 6.7. Limitation of Suits. No Owner shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Agreement
or the Certificate Insurance Policy, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Owner has previously given written notice to the Seller, the
Transferor, the Certificate Insurer and the Trustee of such Owner's
intention to institute such proceeding;
(2) the Owners of not less than 25% of the Percentage Interests
represented by any Class of Class A Certificates, or, if there are
no Class A Certificates then Outstanding, by such percentage of the
Percentage Interests of any Class of Class B Certificates then
Outstanding, shall have made written request to the Trustee to
institute such proceeding in its own name as representative of the
Owners;
(3) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute such proceeding; and
(4) no direction inconsistent with such written request has been given
to the Trustee during such 30-day period by the Certificate Insurer
or by the Owners of a majority of the Percentage Interests
represented by each Class of Class A Certificates or, if there are
no Class A Certificates then Outstanding, by such percentage of the
Percentage Interests represented by any Class of Class B
Certificates then Outstanding;
it being understood and intended that no one or more Owners shall have any right
in any manner whatever by virtue of, or by availing themselves of, any provision
of this Agreement to affect, disturb or prejudice the rights of any other Owner
of the same Class or to obtain or to seek to obtain priority or preference over
any other Owner of the same Class or to enforce any right under this Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all the Owners of the same Class.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Owners, each representing less
than a majority of the applicable Class of Certificates, the Trustee shall act
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at the direction of the Certificate Insurer.
Section 6.8. Unconditional Rights of Owners to Receive
Distributions. Notwithstanding any other provision in this Agreement, the Owner
of any Certificate shall have the right, which is absolute and unconditional, to
receive distributions to the extent provided herein and therein with respect to
such Certificate or to institute suit for the enforcement of any such
distribution, and such right shall not be impaired without the consent of such
Owner.
Section 6.9. Rights and Remedies Cumulative. Except as otherwise
provided herein, no right or remedy herein conferred upon or reserved to the
Seller, the Master Servicer, the Transferor, the Trustee, to the Owners or to
the Certificate Insurer is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. Except as otherwise
provided herein, the assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 6.10. Delay or Omission Not Waiver. No delay of the Seller,
Master Servicer, the Transferor, the Trustee, or any Owner of any Certificate or
the Certificate Insurer to exercise any right or remedy under this Agreement
shall impair any such right or remedy or constitute a waiver of any such right
or remedy. Every right and remedy given by this Article VI or by law to the
Seller or to the Owners or the Certificate Insurer may be exercised from time to
time, and as often as may be deemed expedient, by the Seller or by the Owners or
the Certificate Insurer, as the case may be.
the Certificate Insurer, as the case may be.
Section 6.11. Contro
or (y) with the consent of the Certificate Insurer, the Owners of a majority of
the Percentage Interests represented by each Class of Class A Certificates then
Outstanding or, if there are no Class A Certificates then Outstanding, by such
majority of the Percentage Interests represented by any Class of Class B
Certificates then Outstanding, may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, provided
that:
(1) such direction shall not be in conflict with any rule of law or with
this Agreement;
(2) the Trustee shall have been provided with indemnity satisfactory to
it; and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; provided, however,
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that the Trustee need not take any action which it determines might
involve it in liability or may be unjustly prejudicial to the Owners
not so directing.
ARTICLE VII
ACCOUNTS, FLOW OF FUNDS,
DISTRIBUTIONS AND REPORTS
Section 7.1. Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of all money and
other property payable to or receivable by the Trustee pursuant to this
Agreement, including (a) all payments due on the Mortgage Loans in accordance
with the respective terms and conditions of such Mortgage Loans and required to
be paid over to the Trustee by the Master Servicer, or by any Sub-Servicer and
(b) Insured Payments in accordance with the terms of the Certificate Insurance
Policy. The Trustee shall hold all such money and property received by it as
part of the Trust Estate and shall apply it as provided in this Agreement.
Section 7.2. Establishment of Accounts. The Trustee shall establish
and maintain, at the corporate trust office of the Trustee, a Certificate
Account, a Class A Group I Distribution Account, a Class A Group II Distribution
Account, a Class A Group III Distribution Account and a Class B Distribution
Account, each to be held by the Trustee as a segregated trust account so long as
the Trustee qualifies as a Designated Depository Institution and if the Trustee
does not so qualify, then by any Designated Depository Institution in the name
of the Trust for the benefit of the Owners of the Certificates and the
Certificate Insurer, as their interests may appear.
In administering the Accounts the Trustee may establish such
sub-Accounts as the Trustee deems desirable.
Section 7.3. Flow of Funds. (a) The Trustee shall deposit to the
Certificate Account:
(i) with respect to the Group I Mortgage Loans, without duplication,
upon receipt, each Group I Monthly Remittance remitted by the Master
Servicer or any Sub-Servicer, together with any amounts received by
the Trustee in connection with the termination of the Trust insofar
as such amounts relate to the Group I Mortgage Loans;
(ii) with respect to the Group II Mortgage Loans, without duplication,
upon receipt, each Group II Monthly Remittance remitted by the
Master Servicer or any Sub-Servicer, together with any amounts
received by the Trustee in connection with the termination of the
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Trust, insofar as such amounts relate to the Group II Mortgage
Loans; and
(iii) with respect to the Group III Mortgage Loans, without duplication,
upon receipt, each Group III Monthly Remittance remitted by the
Master Servicer or any Sub-Servicer, together with any amounts
received by the Trustee in connection with the termination of the
Trust, insofar as such amounts relate to the Group III Mortgage
Loans.
(b) On each Payment Date, the Trustee shall make the following
allocations, disbursements and transfers from the Group I Available Funds, from
the Group II Available Funds and from the Group III Available Funds in the
following order of priority, and each such allocation, transfer and disbursement
shall be treated as having occurred only after all preceding allocations,
transfers and disbursements have occurred:
(i) first, the Trustee shall pay first, to itself the related
Trustee's Fee then due;
(ii) [Reserved];
(iii) second, the Trustee shall allocate the following amounts in
the following order of priority:
(A) from the Available Funds then on deposit in the
Certificate Account with respect to each Group, the
lesser of (x) the Available Funds with respect to such
Group and (y) the Insured Distribution Amount with
respect to such Group shall be allocated to the Class A
Distribution Account with respect to such Group;
(B) from the remaining Available Funds then on deposit in
the Certificate Account with respect to each Group, the
lesser of (x) such remaining Available Funds, and (y)
the excess of (i) the Insured Distribution Amount with
respect to either of the other two Groups over (ii) the
amount then on deposit in the Class A Distribution
Account with respect to such Group (such excess, the
"Insured Shortfall" with respect to such Group), shall
be allocated to the Class A Distribution Accounts for
the other Groups; if both of the other Groups have an
Insured Shortfall on such Payment Date, such remaining
amount shall be applied to both other Groups pro rata
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in proportion to the relative amounts of their
respective Insured Shortfalls;
(C) (i) from the remaining Available Funds then on deposit
in the Certificate Account with respect to each Group to
the Certificate Insurer, the lesser of (x) such
remaining Available Funds with respect to each Group and
(y) the Premium Amount and any Reimbursement Amount then
due to the Certificate Insurer;
(ii) from the remaining Available Funds then on deposit
in the Certificate Account with respect to each Group to
the Certificate Insurer, the lesser of (x) such
remaining Available Funds and (y) any amounts remaining
due to the Certificate Insurer after application of
(c)(i) above with respect to either of the other two
Groups (such amount, a "Reimbursement Shortfall" with
respect to a Group) shall be paid to the Certificate
Insurer on behalf of the other Groups; if both of the
other Groups have a Reimbursement Shortfall on such
Payment Date, such remaining amount shall be applied to
both other Groups pro rata in proportion to their
respective Reimbursement Shortfalls;
(D) from the remaining Available Funds then on deposit in
the Certificate Account with respect to such Group, the
lesser of (x) such remaining Available Funds with
respect to such Group and (y) the excess of (i) the
Principal Distribution Amount applicable to such Group
and Payment Date over (ii) all amounts then on deposit
in the respective Class A Distribution Account that are
allocable to principal, shall be allocated to such Class
A Distribution Account;
(E) from the remaining Available Funds then on deposit in
the Certificate Account with respect to each Group, the
lesser of (x) such remaining Available Funds and (y) the
Subordination Deficiency Amount applicable to either of
the other two Groups on such Payment Date, shall be
allocated to the respective Class A Distribution Account
as a Subordination Increase Amount; if both of the other
Groups have a Subordination Deficiency Amount on such
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Payment Date, such Deficiency Amount on such Payment
Date, such remaining amount shall be applied to both
other Groups pro rata in proportion to their respective
Subordination Deficiency Amounts;
(F) from the remaining Available Funds then on deposit in
the Certificate Account with respect to each Group, the
lesser of (x) such remaining Available Funds with
respect to such Group and (y) the Class B Interest,
shall be allocated to the Class B Distribution Account
and applied as a distribution of interest on account of
the Class B Certificates;
(G) from the remaining Available Funds then on deposit in
the Certificate Account with respect to such Group, the
lesser of (x) such remaining Available Funds and (y) the
Class B Principal Balance as of such Payment Date,
assuming that the amount then on deposit in the Class B
Distribution Account as a result of the application of
clause (F) above has been applied as a distribution of
principal on account of the Class B Principal Balance on
such Payment Date, shall be allocated to the Class B
Distribution Account and applied as a distribution of
principal on the Class B Principal Balance; and
(H) all amounts then remaining on deposit in the Certificate
Account shall be distributed to the Owners of the
Residual Certificates on such Payment Date.
(c) On each Payment Date, the Trustee shall make the following
disbursements from amounts deposited in the Distribution Accounts pursuant to
Subsection (b) above, together with the amount of any Insured Payment with
respect to a Group deposited to the respective Distribution Account:
(i) the Trustee shall pay, pari passu from the amount then on
deposit in the Class A Group I Distribution Account:
(A) to the Owners of the Class A-1 Group I Certificates, the
Class A-1 Distribution Amount for such Payment Date;
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(B) to the Owners of the Class A-2 Group I Certificates, the
Class A-2 Distribution Amount for such Payment Date;
(C) to the Owners of the Class A-3 Group I Certificates, the
Class A-3 Distribution Amount for such Payment Date;
(D) to the Owners of the Class A-4 Group I Certificates, the
Class A-4 Distribution Amount for such Payment Date; and
(E) to the Owners of the Class A-5 Group I Certificates, the
Class A-5 Distribution Amount for such Payment Date;
provided, however, that if, on any Payment Date, (x) the
Certificate Insurer is then in default under the Certificate
Insurance Policy and (y) a Group I Subordination Deficit
exists, then any distribution of the Group I Principal
Distribution Amount on such Payment Date shall be made pro
rata to the Owners of each of the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates
and the Class A-5 Group I Certificates on such Payment Date.
(ii) the Trustee shall pay from the amount then on deposit in the
Class A Group II Distribution Account, to the Owners of the
Class A-6 Group II Certificates, the Class A-6 Distribution
Amount for such Payment Date;
(iii) the Trustee shall pay from the amount then on deposit in the
Class A Group III Distribution Account, to the Owners of the
Class A-7 Group III Certificates, the Class A-7 Distribution
Amount for such Payment Date; and
(iv) the Trustee shall transfer from the amounts then on deposit in
the Class B Distribution Account, to the Supplemental Interest
Payment Account, the Class B Distribution Amount for such
Payment Date; such transfer shall be deemed a distribution on
the Class B Certificates.
(d) Any amounts properly distributed to the Owners of the Class B
(d) Any amounts properly distributed to the Owners of the Class
of this Agreement shall be distributed free of the subordination described
herein, and any such amounts shall in no event be required to be returned to the
Trustee or paid over to the Owners of the Class A Certificates.
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(e) Whenever, during the administration of the Trust, there comes
into the possession of the Trustee any money or property which this Agreement
does not otherwise require to be distributed on account of the Class A
Certificates or the Class B Certificates, the Trustee shall distribute such
money or other property to the Owners of the Class RU Certificates.
(f) Each Owner of a Class A Certificate which pays any Preference
Amounts theretofore received by such Owner on account of such Class A
Certificate will be entitled to receive reimbursement for such amounts from the
Certificate Insurer in accordance with the terms of the Certificate Insurance
Policy, but only after (i) delivering a copy to the Trustee of a final,
nonappealable order (a "Preference Order") of a court having competent
jurisdiction under the United States Bankruptcy Code demanding payment of such
amount to the bankruptcy court and (ii) irrevocably assigning such Owner's claim
with respect to such Preference Order to the Certificate Insurer in such form as
is required by the Certificate Insurer. In no event shall the Certificate
Insurer pay more than one Insured Payment in respect of any Preference Amount.
Section 7.4. Investment of Accounts. (a) All or a portion of any
Account held by the Trustee shall be invested and reinvested by the Trustee in
the name of the Trustee for the benefit of the Owners, as described in Section
7.4(c) hereof. No investment in any Account shall mature later than the Business
Day immediately preceding the next Payment Date and shall be held until
maturity.
(b) Subject to Section 9.1 hereof, the Trustee shall not in any way
be held liable by reason of any insufficiency in any Account held by the Trustee
resulting from any loss on any Eligible Investment included therein (except to
the extent that the bank serving as Trustee is the obligor thereon).
(c) Until it is directed in writing by the Seller to invest in
another Eligible Investment, the Trustee shall invest in Eligible Investments
described in paragraph (h) of Section 7.5 hereof.
(d) All income or other gain from investments in any Account held by
the Trustee shall be deposited in such Account immediately on receipt, and any
loss resulting from such investments shall be charged to such Account.
Section 7.5. Eligible Investments. The following are
Eligible Investments:
(a) Direct general obligations of the United States or the
obligations of any agency or instrumentality of the United States, the timely
payment or the guarantee of which constitutes a full faith and credit obligation
of the United States.
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(b) Federal Housing Administration debentures, but excluding any
such securities whose terms do not provide for payment of a fixed dollar amount
upon maturity or call for redemption.
(c) FHLMC senior debt obligations, but excluding any such securities
whose terms do not provide for payment of a fixed dollar amount upon maturity or
call for redemption.
(d) FNMA senior debt obligations, but excluding any such securities
whose terms do not provide for payment of a fixed dollar amount upon maturity or
call for redemption.
(e) Federal funds, certificates of deposit, time and demand
deposits, and bankers' acceptances (having original maturities of not more than
365 days) of any domestic bank (which may include the Trustee or its affiliate),
the short-term debt obligations of which have been rated A-1 or better by S&P
and P-1 by Moody's.
(f) Deposits of any bank or savings and loan association which has
combined capital, surplus and undivided profits of at least $50,000,000 which
deposits are not in excess of the applicable limits insured by the Bank
Insurance Fund or the Savings Association Insurance Fund of the FDIC, provided
that the long-term deposits of such bank or savings and loan association are
rated at least "BBB" by S&P and "Baa3" by Moody's.
(g) Commercial paper (having original maturities of not more than
270 days) rated A-1 or better by S&P and P-1 by Moody's.
(h) Investments in money market funds (including those of the
Trustee or its affiliate) rated at least AAAm or AAAm-G by S&P and Aaa or P-1 by
Moody's.
(i) Such other investments as have been approved in writing by S&P,
Moody's and the Certificate Insurer;
provided that no instrument described above is permitted to evidence either the
right to receive (a) only interest with respect to obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further,
that no instrument described above may be purchased at a price greater than par
if such instrument may be prepaid or called at a price less than its purchase
price prior to stated maturity. Any Eligible Investment may be purchased by or
through the Trustee or any of its affiliates. The Trustee or its affiliates may
act as sponsor, manager, depository or advisor with regard to any Eligible
Investment.
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Section 7.6. Reports by Trustee. (a) On each Payment Date the
Trustee shall report in writing to each Owner and to the Seller, the Master
Servicer, and the Transferor with a copy to the Certificate Insurer, S&P and
Moody's:
(i) the amount of the distribution with respect to each Class of
Certificates;
(ii) the amount of such distributions allocable to principal,
separately identifying the aggregate amount of any Prepayments or other
unscheduled recoveries of principal included therein;
(iii) the amount of such distributions allocable to interest;
(iv) the amount of such distributions allocable to any Carry-Forward
Amount;
(v) the then-outstanding principal balance of each Class of Class A
Certificates as of such Payment Date, together with the principal amount,
by class, of each Class A Certificate (based on a Certificate in the
original principal amount of $1,000) then Outstanding, in each case after
giving effect to any payment of principal on such Payment Date;
(vi) the then-outstanding principal balance of each class of Class B
Certificates, together with the principal amount, by class, of each Class
B Certificate (based on a Certificate in the original principal amount of
$1,000) then Outstanding, in each case after giving effect to any payment
of principal on such Payment Date;
(vii) the total of any Substitution Amounts and any Loan Purchase
Prices included in such distribution;
(viii) the amount of any Supplemental Interest Payment Amount, Class
B-S Certificate distribution and any Interest Advance on such Payment
Date, together with the amount of any unreimbursed Interest Advance then
owed to the Designated Residual Owner;
(ix) the amount of the Master Servicing Fee paid with respect to
each of the two Mortgage Loan Groups with respect to the related
Remittance Period;
(x) the amount of any Group I Insured Payment, any Group II Insured
Payment or any Group III Insured Payment made with respect to such Payment
Date; and
(xi) as of such Payment Date, the Group I Subordinated Amount, the
Group II Subordinated Amount and the Group III Subordinated Amount.
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In preparing the report under this Section 7.6, the Trustee shall
rely solely upon the electronic report described in Section 10.8(d)(ii) hereof
being received from the Master Servicer or any Sub-Servicer. The Trustee shall
not be responsible for its obligations under this Section 7.6 unless and until
it receives such report from the Master Servicer.
(b) On each Payment Date the Trustee will additionally inform the
Seller, the Master Servicer, the Transferor, the Certificate Insurer, S&P and
Moody's with respect to the following:
(i) the Group I Available Funds, the Group II Available Funds and
the Group III Available Funds for the related Payment Date;
(ii) the Pool Principal Balance with respect to each of the two
Mortgage Loan Groups as of the end of the related Remittance Period;
(iii) the number and Principal Balances of all Mortgage Loans in
each of the two Mortgage Loan Groups which were the subject of Prepayments
during the related Remittance Period;
(iv) the total amount of payments in respect of or allocable to
interest on the Mortgage Loans in each of the three Mortgage Loan Groups
received or deemed to have been received from the related Mortgagors by
the Master Servicer or any Sub-Servicer during the related Remittance
Period (including any net income from REO Properties received during the
related Remittance Period);
(v) the aggregate of all principal payments received or deemed to
have been received from the related Mortgagors in each of the three
Mortgage Loan Groups by the Master Servicer or any Sub-Servicer during the
related Remittance Period;
(vi) the aggregate of any Insurance Proceeds received or deemed to
have been received by the Master Servicer or any Sub-Servicer during the
related Remittance Period with respect to each of the three Mortgage Loan
Groups;
(vii) the aggregate of any Released Mortgaged Property Proceeds
received or deemed to have been received by the Master Servicer or any
Sub-Servicer during the related Remittance Period with respect to each of
the three Mortgage Loan Groups;
(viii) the aggregate of any Liquidation Proceeds, Liquidation
Expenses and Net Liquidation Proceeds received or deemed to have been
received by the Master Servicer or any Sub-Servicer, and Net Realized
Losses incurred, during the related Remittance Period with respect to each
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of the three Mortgage Loan Groups, the Group I Cumulative Net Realized
Losses, the Group II Cumulative Net Realized Losses, the Group III
Cumulative Net Realized Losses and the aggregate Cumulative Net Realized
Losses since the Startup Day and during the prior 12-month period and the
Pool Rolling Three Month Delinquency Rate;
(ix) the total amount of Compensating Interest payments paid or to
be paid by the Master Servicer or any Sub-Servicer pursuant to Section
10.10 hereof with respect to each of the three Mortgage Loan Groups;
(x) the amount of Delinquency Advances made by the Master Servicer
or any Sub-Servicer pursuant to Section 10.9 hereof with respect to such
Payment Date with respect to each of the three Mortgage Loan Groups;
(xi) the monthly Master Servicing Fee and any additional servicing
fees paid to the Master Servicer or any Sub-Servicer pursuant to Section
10.15 hereof with respect to each of the three Mortgage Loan Groups;
(xii) the amount of Delinquency Advances with respect to each of the
three Mortgage Loan Groups reimbursable to the Master Servicer or any
Sub-Servicer during such Remittance Period pursuant to Section 10.9 hereof
and not previously reimbursed;
(xiii) the amount of any Servicing Advance made by the Master
Servicer or any Sub-Servicer pursuant to Sections 10.9 and 10.13 hereof
with respect to each of the three Mortgage Loan Groups and not previously
reimbursed;
(xiv) the Class A-1 Distribution Amount, the Class A-2 Distribution
Amount, the Class A-3 Distribution Amount, the Class A-4 Distribution
Amount, the Class A-5 Distribution Amount, the Class A-6 Distribution
Amount, the Class A-7 Distribution Amount, and the Class B Distribution
Amount, with the components thereof stated separately;
(xv) the weighted average remaining term to maturity and Net
Weighted Average Coupon Rate of the Mortgage Loans with respect to each of
the three Mortgage Loan Groups as of the close of business on the last day
of the related Remittance Period;
(xvi) the Group I Subordinated Amount, Group I Subordination
Deficiency Amount, Group I Specified Subordinated Amount, Group I
Subordination Increase Amount, the Group II Subordinated Amount, Group II
Subordination Deficiency Amount, Group II Specified Subordinated Amount,
Group II Subordination Increase Amount, Group III Subordinated Amount,
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Group III Subordination Deficiency Amount, Group III Specified
Subordinated Amount and Group III Subordination Increase Amount for the
related Payment Date;
(xvii) the Group I Excess Subordinated Amount, Group I Subordination
Reduction Amount, Group II Excess Subordinated Amount, Group II
Subordination Reduction Amount, Group III Excess Subordinated Amount and
the Group III Subordination Reduction Amount for the related Payment Date;
(xviii) the number of Mortgage Loans in each of the three Mortgage
Loan Groups at the beginning and end of the related Remittance Period;
(xix) the Group I Shortfall Amount, the Group II Shortfall Amount
and the Group III Shortfall Amount for the related Payment Date; and
(xx) such other information as the Certificate Insurer or the Seller
may reasonably request and which is derived from information which is
produced or available in the ordinary course of the Master Servicer's or
any Sub-Servicer's business or which otherwise materially relates to the
transactions contemplated hereby and is provided to the Trustee by the
electronic report described in Section 10.8(d)(ii) hereof.
(c) In addition, on each Payment Date the Trustee will disseminate
to each Owner, the Seller, the Master Servicer and to the Transferor with a copy
to the Certificate Insurer, S & P and Moody's, together with the information
described in Subsection (a) preceding, the following information with respect to
each of the three Mortgage Loan Groups as of the close of business on the last
day of the related Remittance Period, which is required to be prepared by the
Master Servicer or a Sub-Servicer and furnished to the Trustee pursuant to
Section 10.8(d)(ii) hereof for such purpose on or prior to the related
Remittance Date:
(i) the total number of Mortgage Loans and the aggregate Principal
Balances thereof, together with the number and aggregate principal
balances of Mortgage Loans (a) 30-59 days Delinquent, (b) 60-89 days
Delinquent and (c) 90 or more days Delinquent;
(ii) the number and aggregate principal balances of all Mortgage
Loans in foreclosure proceedings (and whether any such Mortgage Loans are
also included in any of the statistics described in the foregoing clause
(i));
(iii) the number and aggregate principal balances of all Mortgage
Loans relating to Mortgagors in bankruptcy proceedings (and whether any
such Mortgage Loans are also included in any of the statistics described
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in the foregoing clauses (i) and (ii));
(iv) the number and aggregate principal balances of all Mortgage
Loans relating to REO Properties (and whether any such Mortgage Loans are
also included in any of the statistics described in the foregoing clauses
(i), (ii) and (iii));
(v) the number and aggregate principal balances of all Mortgage
Loans as to which foreclosure proceedings were commenced during the prior
Remittance Period;
(vi) a schedule regarding cumulative foreclosures since the Cut-Off
Date; and
(vii) the book value of any REO Property and any income received
from REO Properties during the prior Remittance Period.
The Seller, the Master Servicer, the Transferor and the Trustee on
behalf of Certificateholders and the Trust (the "Trust Parties") hereby
authorize the Certificate Insurer to include the information contained in
reports provided to the Certificate Insurer hereunder (the "Information") on
Bloomberg, an on-line computer based information network maintained by Bloomberg
L.P. ("Bloomberg"), or in other electronic or print information services. The
Trust Parties agree not to commence any actions or proceedings, or otherwise
assert any claims, against the Certificate Insurer or its affiliates or any of
the Certificate Insurer's or its affiliates' respective agents, representatives,
directors, officers or employees (collectively, the "Certificate Insurer
Parties"), arising out of, or related to or in connection with the dissemination
and/or use of any Information by the Certificate Insurer, including, but not
limited to, claims based on allegations of inaccurate, incomplete or erroneous
transfer of information by the Certificate Insurer to Bloomberg or otherwise
(other than in connection with the Certificate Insurer's gross negligence or
willful misconduct). The Trust Parties waive their rights to assert any such
claims against the Certificate Insurer Parties and fully and finally release the
Certificate Insurer Parties from any and all such claims, demands, obligations,
actions and liabilities (other than in connection with the Certificate Insurer's
gross negligence or willful misconduct). The Certificate Insurer makes no
representations or warranties, expressed or implied, of any kind whatsoever with
respect to the accuracy, adequacy, timeliness, completeness, merchantability or
fitness for any particular purpose of any Information in any form or manner. The
Certificate Insurer reserves the right at any time to withdraw or suspend the
dissemination of the Information by the Certificate Insurer. The authorizations,
covenants and obligations of the Trust Parties under this section shall be
irrevocable and shall survive the termination of this Agreement.
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Section 7.7. Drawings under the Certificate Insurance Policy and
Reports by Trustee. (a) On each Determination Date the Trustee shall determine,
no later than 12:00 noon on such Determination Date, whether a Group I Shortfall
Amount, a Group II Shortfall Amount or a Group III Shortfall Amount has
theretofore occurred and will remain uncured on the following Payment Date, and
whether a Group I Shortfall Amount, a Group II Shortfall Amount or a Group III
Shortfall Amount with respect to either the Group I Mortgage Loans, the Group II
Mortgage Loans or the Group III Mortgage Loans will occur on the following
Payment Date. If the Trustee determines that a Group I Shortfall Amount, a Group
II Shortfall Amount or a Group III Shortfall Amount has theretofore occurred and
will remain uncured or will occur, the Trustee shall furnish the Certificate
Insurer and the Seller with a completed Notice in the form set forth as Exhibit
A to the Certificate Insurance Policy. The Notice shall specify the amount of
the Insured Payment and shall constitute a claim for an Insured Payment pursuant
to the Certificate Insurance Policy.
(b) The Trustee shall report to the Seller, the Master Servicer, the
Transferor and the Certificate Insurer with respect to the amounts then held in
each Account held by the Trustee and the identity of the investments included
therein, as the Seller, the Master Servicer, the Transferor or the Certificate
Insurer may from time to time request. Without limiting the generality of the
foregoing, the Trustee shall, at the request of the Seller, the Master Servicer,
the Transferor or the Certificate Insurer transmit promptly to the Seller, the
Master Servicer, the Transferor and the Certificate Insurer copies of all
accountings of receipts in respect of the Mortgage Loans furnished to it by the
Master Servicer or a Sub-Servicer.
(c) Upon receipt of Insured Payments from the Certificate Insurer
under the Certificate Insurance Policy, the Trustee shall deposit such Insured
Payments in the Policy Payments Account. The Trustee shall withdraw Insured
Payments from the Policy Payments Account in accordance with section 13.4(a).
The Trustee shall distribute all Insured Payments received, or the proceeds
thereof, in accordance with Section 7.3(b) and 7.3(c) to the Owners of the Class
A Certificates of the related Class.
(d) The Trustee shall (i) receive Insured Payments as
attorney-in-fact of each Owner of the Class A Certificates of the related Class
receiving any Insured Payment from the Certificate Insurer and (ii) disburse
such Insured Payment to the Owners of the related Class A Certificates as set
forth in Section 7.3(b) and 7.3(c). The Certificate Insurer shall be entitled to
receive the related Reimbursement Amount pursuant to Section 7.5(b)(iii)(C)
hereof with respect to each Insured Payment made by the Certificate Insurer. The
Trustee hereby agrees on behalf of each Owner of Class A Certificates and the
Trust for the benefit of the Certificate Insurer that it recognizes that to the
extent the Certificate Insurer makes Insured Payments, either directly or
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indirectly (as by paying through the Trustee), to the Owners of such Class A
Certificates, the Certificate Insurer will be entitled to receive the related
Reimbursement Amount pursuant to Section 7.5(b)(iii)(C) hereof.
(e) Insured Payments disbursed by the Trustee from proceeds of the
Certificate Insurance Policy shall not be considered payment by the Trust Fund
nor shall such payments discharge the obligation of the Trust Fund with respect
to the related Class A Certificates, and the Certificate Insurer shall become
the owner of such unpaid amounts due from the Trust Fund in respect of the
related Class A Certificates. The Trustee hereby agrees on behalf of each Holder
of a related Class A Certificate for the benefit of the Certificate Insurer that
it recognizes that to the extent the Certificate Insurer makes Insured Payments,
either directly or indirectly (as by paying through the Trustee), to the Owners
of any Class A Certificates, the Certificate Insurer will be subrogated to the
rights of such Owners with respect to such Insured Payment, shall be deemed to
the extent of payments so made to be a registered Owner of such Class A
Certificates and shall receive all future distributions until all such Insured
Payments by the Certificate Insurer, together with interest thereon at the
interest rate borne by the related Class A Certificates, have been fully
reimbursed. To evidence such subrogation, the Trustee shall note the Certificate
Insurer's rights as subrogee on the registration books maintained by the Trustee
upon receipt from the Certificate Insurer of proof of payment of any Insured
Payment.
Section 7.8. Allocation of Realized Losses. If, on any Payment Date,
following the making of all allocations, transfers and distributions (other than
as provided in this Section) on such Payment Date (x) the sum of the Class A-1
Principal Balance, the Class A-2 Principal Balance, the Class A-3 Principal
Balance, the Class A-4 Principal Balance, the Class A-5 Principal Balance, the
Class A-6 Principal Balance, the Class A-7 Principal Balance, and the Class B
Principal Balance exceeds (y) the Pool Principal Balance as of the close of
business on the last day of the related Remittance Period (any such excess,
"Allocable Losses"), such Allocable Losses shall be applied as a reduction of
the Class B Principal Balance until the Class B Principal Balance has been
reduced to zero.
Section 7.9. Supplemental Interest Payments.
(a) The parties hereto do hereby create and establish a trust, the
"Access Financial Supplemental Interest Trust 1996-4" (the "Supplemental
Interest Trust"). The Supplemental Interest Trust shall hold a trust account,
the "Supplemental Interest Payment Account", to be held by the Trustee in its
name on behalf of the Supplemental Interest Trust.
If, on any Determination Date, the Trustee determines that the
amount to be available on the next Payment Date in the Supplemental Interest
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Payment Account (such amount, the "Supplemental Interest Payment Amount") is
less than the sum of (A) the excess of (i) the Class A-6 Full Interest
Distribution Amount over (ii) the Class A-6 Interest Distribution Amount as of
such Payment Date (the "Class A-6 Formula Interest Shortfall") and (B) the
excess of (i) the Class A-7 Full Interest Distribution Amount over (ii) the
Class A-7 Interest Distribution Amount as of such Payment Date (the "Class A-7
Formula Interest Shortfall"), the Trustee shall deliver a notice in the form of
Exhibit O hereto to the Designated Residual Owner demanding that the Designated
Residual Owner fund the Class A-6 Formula Interest Shortfall and/or the Class
A-7 Formula Interest Shortfall on the related Payment Date. The amount so funded
by the Designated Residual Owner on any such Payment Date is the "Interest
Advance" for such Payment Date. The Trustee shall deposit any Interest Advance
received by it (i) in the amount of the Class A-6 Formula Interest Shortfall
into the Class A Group II Distribution Account and (ii) in the amount of the
Class A-7 Formula Interest Shortfall into the Class A Group III Distribution
Account.
On each Payment Date the Trustee shall withdraw from the
Supplemental Interest Payment Account and deposit in (i) the Group II
Distribution Account the Class A-6 Formula Interest Shortfall and (ii) the Group
III Distribution Account the Class A-7 Formula Interest Shortfall; provided that
the amount to be withdrawn may not exceed the Supplemental Interest Payment
Amount and to the extent such amount is not sufficient to pay the Class A-6 and
Class A-7 Formula Shortfalls, such amount will be divided between the Group II
and Group III Distribution Accounts pro rata in proportion to the relative
amounts of the Class A-6 and Class A-7 Formula Shortfalls (such amount, the
"Funded Amount").
(b) Any portion of the Supplemental Interest Payment Amount after
application of clause (a) above (the "Remaining Amount") shall be applied in the
following order of priority:
(i) first, to the Designated Residual Owner, as
reimbursement for unpaid Interest Advances, together with interest thereon
(the "Interest Advance Reimbursement Amount"), with the earliest Interest
Advances being deemed to be paid first; and
(ii) second, to the Owners of the Class B-S Certificates,
all remaining amounts then on deposit in the Supplemental Interest Payment
Account, to such Owners pro rata in accordance with the Percentage
Interests.
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ARTICLE VIII
TERMINATION OF TRUST
Section 8.1. Termination of Trust. The Trust created hereunder and
all obligations created by this Agreement will terminate upon the earlier of (i)
the payment to the Owners of all Certificates of all amounts held by the Trustee
and required to be paid to such Owners pursuant to this Agreement upon the later
to occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Trust is effected as described below. To effect a termination of this Agreement
pursuant to clause (b) above, the Owners of all Certificates then Outstanding
shall (x) unanimously direct the Trustee on behalf of the Trust to adopt a plan
of complete liquidation with respect to each REMIC, as contemplated by Section
860F(a)(4) of the Code and (y) provide to the Trustee an opinion of counsel
experienced in federal income tax matters to the effect that such liquidation
constitutes a Qualified Liquidation and the Trustee either shall sell the
Mortgage Loans and distribute the proceeds of the liquidation of the Trust
Estate, or shall distribute equitably in kind all of the assets of the Trust
Estate to the remaining Owners of the Certificates each in accordance with such
plan, so that the liquidation or distribution of the Trust Estate, the
distribution of any proceeds of the liquidation and the termination of this
Agreement occur no later than the close of the 90th day after the date of
adoption of the plan of liquidation and such liquidation qualifies as a
Qualified Liquidation. In no event, however, will the Trust created by this
Agreement continue beyond the expiration of twenty-one (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 United Kingdom, living on the date
hereof. The Trustee shall give written notice of termination of the Agreement to
the Certificate Insurer and each Owner in the manner set forth in Section 12.5
hereof.
Section 8.2. Termination Upon Option of the Seller.
(a) On any Remittance Date on or after the Remittance Date on which
the then-outstanding aggregate Principal Balances of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance, the Seller may determine
to purchase and may cause the purchase from the Trust of all (but not fewer than
all) Mortgage Loans and all property theretofore acquired in respect of any
Mortgage Loan by foreclosure, deed in lieu of foreclosure, or otherwise then
remaining in the Trust Estate at a price equal to 100% of the aggregate
Principal Balances of the related Mortgage Loans as of the day of termination
minus amounts remitted from the Principal and Interest Account to the
Certificate Account representing collections of principal on the Mortgage Loans
during the current Remittance Period, plus one month's interest on such amount
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computed at the weighted average Coupon Rate for the related Mortgage Loan
Group, and plus the aggregate amount of any unreimbursed Delinquency Advances,
including amounts which would be Delinquency Advances which the Master Servicer
has theretofore failed to remit plus any amount owing to the Trustee, any
Reimbursement Amount owing to the Certificate Insurer and the Trustee and any
Insured Payment due on the related Payment Date. The Seller shall pay such
termination price to the Trustee for deposit in the Certificate Account. In
connection with such termination, the Master Servicer shall remit to the Trustee
all amounts (net of investment earnings and providing for investment losses
pursuant to Section 10.8(b) hereof, net of the Master Servicing Fee and net of
amounts reimbursable for Delinquency Advances and Servicing Advances) then on
deposit in the Principal and Interest Account for deposit to the Certificate
Account, which deposit shall be deemed to have occurred immediately preceding
such purchase.
(b) In connection with any such purchase, the Seller shall provide
to the Trustee an opinion of counsel experienced in federal income tax matters
to the effect that such purchase constitutes a Qualified Liquidation with
respect to each REMIC.
(c) Promptly following any such purchase, the Trustee will release
the Files, with appropriate endorsements and transfer documents, to the Seller
or otherwise upon its order.
Section 8.3. Auction Sale. If the Seller fails, by the ninetieth day
following the first Remittance Date on which such option may be exercised, to
exercise its purchase option pursuant to Section 8.2 hereof, then upon receipt
of written notice and direction from the Seller, the Trustee will notify the
Representative (or, if the Representative is unable or unwilling, another
investment banking or whole-loan trading firm selected by the Seller (the
Representative or such other investment bank or trading firm, the "Advisor") who
will solicit on behalf of the Trustee competitive bids for the purchase of the
Mortgage Loans for fair market value. Such solicitation shall be conducted
substantially in the manner described in Exhibit N hereto. In the event that
satisfactory bids are received as described below, the proceeds of the sale of
such assets shall be deposited into the Certificate Account. The Trustee will
ask the Advisor to solicit, on behalf of the Trustee, good-faith bids from no
fewer than two prospective purchasers that are considered at the time to be
competitive participants in the home equity market. The Advisor will consult
with any securities brokerage houses identified by the Seller as then making a
market in the Class A Certificates to obtain a determination as to whether the
fair market value of such assets has been offered.
Any purchaser of such Mortgage Loans must agree to the continuation
of the Master Servicer or any successor Master Servicer as servicer of the
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assets on terms substantially similar to those in this Agreement.
If the highest good-faith bid received by the Advisor from a
qualified bidder is, in the judgment of the Representative, not less than the
fair market value of such Mortgage Loans and if such bid would equal the amount
set forth in the following sentence, the Trustee, following consultation with
and written direction from the Advisor and the Seller, will sell and assign such
Mortgage Loans without representation, warranty or recourse to such highest
bidder and will redeem the Class A Certificates. For the Trustee to consummate
the sale, the bid must be at least equal to the termination price set forth in
Section 8.2(a) hereof. In addition, the bid must be in an amount sufficient to
pay the fees and expenses of the Trustee owing hereunder. If such conditions are
not met, the Trustee will, following consultation with the Advisor and the
Seller, decline to consummate such sale. In addition, the Trustee will decline
to consummate such sale unless it receives from the Advisor an opinion of
counsel addressed to it and the Certificate Insurer that such sale will not give
rise either to any "prohibited transaction" tax under section 860F(a)(1) of the
Code or to any tax on contributions to the REMIC after the "startup day" under
section 860G(d)(1) of the Code. In the event such sale is not consummated in
accordance with the foregoing, the Trustee will not be under any obligation to
solicit any further bids or otherwise to negotiate any further sale of the
Mortgage Loans. In such event, however, if directed by the Seller, the Trustee
may solicit bids from time to time in the future for the purchase of the
Mortgage Loans upon the same terms described above. The Trustee may consult with
the Advisor and the advice of the Advisor shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder. The Seller shall reimburse the Trustee for any fees incurred
under this Section 8.3 if a sale is not consummated.
On each Payment Date following the Trustee's failure to obtain a
satisfactory bid as described in this Section 8.3, the Class A-5 Pass-Through
Rate shall be 7.650%.
Section 8.4. Disposition of Proceeds. The Trustee shall, upon
receipt thereof, deposit the proceeds of any liquidation or termination of the
Trust Estate pursuant to this Article VIII to the Certificate Account for
application as provided in Section 7.3 hereof.
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ARTICLE IX
THE TRUSTEE
Section 9.1. Certain Duties and Responsibilities.
(a) The Trustee (i) except during the continuance of an Event of
Default, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee and (ii) in
the absence of bad faith on its part, may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished pursuant to and conforming to the
requirements of this Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement.
During the continuance of an Event of Default, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances with respect to such person's property
or affairs.
(b) Notwithstanding the retention of the Master Servicer pursuant
hereto and subject to the provisions of Section 11.1 hereof, the Trustee is
hereby empowered (but not obligated) to perform the duties of the Master
Servicer hereunder following the failure of the Master Servicer to perform
pursuant hereto. Specifically, and not in limitation of the foregoing, the
Trustee shall have the power (but not the obligation):
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption
and substitution agreements as permitted by Article X hereof;
(iv) to deliver instruments of satisfaction pursuant to Article X
hereof;
(v) to enforce the Mortgage Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to pay
Compensating Interest, in the manner required by this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
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to act or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
clause (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by an Authorized Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Seller or the Certificate
Insurer or, with the Certificate Insurer's consent, of the
Owners of a majority in Percentage Interest of the
Certificates of the affected Class or Classes 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
relating to such Certificates;
(iv) The Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any default by the Seller or by
the Master Servicer unless the Trustee shall have received
written notice thereof. In the absence of actual receipt of
such notice, the Trustee may conclusively assume that there is
no such default; and
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section, the Trustee shall
have no duty (A) to see to any recording, filing, or
depositing of this Agreement, any Mortgage or any agreement
referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or
to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, (C) to see the payment or
discharge of any tax, assessment, or other governmental charge
or any lien or encumbrance of any kind owing with respect to,
assessed or levied against, any property of the Trust, (D) to
confirm or verify the contents of any reports or certificates
of the Master Servicer or any Sub-Servicer delivered to the
Trustee pursuant to this Agreement or any Sub-Servicing
Agreement believed by the Trustee to be genuine and to have
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been signed or presented by the proper party or parties.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Master Servicer
hereunder except during such time, if any, as the Trustee shall be the successor
to, and be vested with the rights, duties and powers and privileges of, the
Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated
in this Agreement shall not be construed as a duty and the Trustee shall not be
answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit,
or to take any remedial proceeding under this Agreement, or to take any steps in
the execution of the trusts hereby created or in the enforcement of any rights
and powers hereunder until it shall be indemnified to its reasonable
satisfaction against any and all costs and expenses, outlays and counsel fees
and other reasonable disbursements and against all liability, except liability
which is adjudicated to have resulted from its negligence or willful misconduct,
in connection with any action so taken.
Section 9.2. Removal of Trustee for Cause. (a) The Trustee may be
removed pursuant to clause (b) hereof upon the occurrence of any of the
following events (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Trustee shall fail to distribute to the Owners entitled thereto
on any Payment Date amounts available for distribution in accordance
with the terms hereof; or
(2) the Trustee shall fail in the performance of, or breach, any
covenant or agreement of the Trustee in this Agreement, or if any
representation or warranty of the Trustee made in this Agreement
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or in any certificate or other writing delivered pursuant hereto or
in connection herewith shall prove to be incorrect in any material
respect as of the time when the same shall have been made, and such
failure or breach shall continue or not be cured for a period of 30
days after there shall have been given, by registered or certified
mail, to the Trustee by the Seller or the Certificate Insurer or by
the Owners of at least 25% of the aggregate Percentage Interest
represented by any Class of Class A Certificates, or, if there are
no Class A Certificates then Outstanding, by such Percentage
Interest represented by any Class of Class B Certificates, a written
notice specifying such failure or breach and requiring it to be
remedied (unless the Trustee is aware of such breach as evidenced by
notice from the Trustee pursuant to Section 9.2(b) in which case the
30 day cure period shall begin at the time such notice was given);
or
(3) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Trustee, and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(4) a conservator or receiver or liquidator or sequestrator or custodian
of the property of the Trustee is appointed in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Trustee or relating to all
or substantially all of its property; or
(5) the Trustee shall become insolvent (however insolvency is
evidenced), generally fail to pay its debts as they come due, file
or consent to the filing of a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take corporate action for the purpose of any of the
foregoing.
(b) The Seller and the Trustee shall give notice to each other, to
the Certificate Insurer, the Transferor and to each Owner if it becomes aware
that an event described in Subsection (a) has occurred and is continuing.
(c) If any event described in Subsection (a) occurs and is
continuing, then and in every such case (x) the Seller or the Certificate
Insurer or (y) with the consent of the Certificate
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Insurer, the Owners of a majority of the Percentage Interest represented by any
Class of Class A Certificates, or, if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by any Class of Class B
Certificates then Outstanding, may, whether or not the Trustee resigns pursuant
to Section 9.9 hereof, immediately, concurrently with the giving of notice to
the Trustee, appoint a successor trustee pursuant to the terms of Section 9.9
hereof.
Section 9.3. Certain Rights of the Trustee. Except as otherwise
provided in Section 9.1 hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Seller or the Owners of any
Class of Certificates mentioned herein shall be sufficient if evidenced in
writing;
(c) whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reasonable reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or
direction of any of the Owners pursuant to this Agreement, unless such
Owners shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) 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, direction, consent, order,
bond, note or other paper or document, but the Trustee in its discretion
may make such further inquiry or investigation into such facts or matters
as it may see fit;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized by the
Authorized Officer of any Person or within its rights or powers under this
Agreement other than as to validity and sufficiency of its authentication
of the Certificates.
Section 9.4. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except any
such recitals relating to the Trustee, shall be taken as the statements of the
Seller and the Master Servicer and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the validity or
sufficiency of this Agreement, any offering materials relating to the
Certificates, or of the Certificates other than as to the validity and
sufficiency of its authentication of the Certificates.
Section 9.5. May Hold Certificates. The Trustee or any other agent
of the Trust, in its individual or any other capacity, may become an Owner or
pledgee of Certificates and may otherwise deal with the Trust with the same
rights it would have if it were not Trustee or such other agent.
Section 9.6. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other trust funds except to the extent
required herein or required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Seller and except to the extent of income or other gain on investments which
are deposits in or certificates of deposit of the Trustee in its commercial
capacity and income or other gain actually received by the Trustee on Eligible
Investments.
Section 9.7. Compensation and Reimbursement. The Trustee shall
receive compensation for fees and reimbursement for expenses pursuant to Section
2.5 hereof and Section 7.3(b)(i) hereof. The Trustee shall have no lien on the
Trust Estate for the payment of such fees and expenses.
Section 9.8. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a corporation or association
acceptable to the Certificate Insurer and organized and doing business under the
laws of the United States of America or of any State authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
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least $100,000,000, subject to supervision or examination by the United States
of America, having a rating or ratings acceptable to the Seller and having a
long-term deposit rating of at least BBB from S&P and Baa2 from Moody's (or such
lower rating as may be acceptable to S&P, Moody's and the Certificate Insurer).
If such Trustee publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall, upon the request of the Seller or the
Certificate Insurer resign immediately in the manner and with the effect
hereinafter specified in this Article IX.
Section 9.9. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
trustee pursuant to this Article IX shall become effective until the acceptance
of appointment by the successor trustee under Section 9.10 hereof.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
resign at any time by giving written notice of resignation to the Certificate
Insurer, the Seller, the Master Servicer and to the Transferor and by mailing
notice of resignation by first-class mail, postage prepaid, to the Owners at
their addresses appearing on the Register. Upon receiving notice of resignation,
the Seller shall promptly appoint a successor trustee or trustees satisfying the
eligibility requirements of Section 9.8 by written instrument, in duplicate,
executed on behalf of the Trust by an Authorized Officer of the Seller, one copy
of which instrument shall be delivered to the Trustee so resigning and one copy
to the successor trustee or trustees. If no successor trustee shall have been
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Owner may, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
trustee.
(c) If at any time the Trustee shall cease to be eligible under
Section 9.8 hereof and shall fail to resign after written request therefor by
the Seller or the Certificate Insurer, the Seller or the Certificate Insurer may
remove the Trustee and the Seller, with the consent of the Certificate Insurer,
or the Certificate Insurer may appoint a successor trustee by written
instrument, in duplicate, executed on behalf of the Trust by an Authorized
Officer of the Seller or the Certificate Insurer, one copy of which instrument
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shall be delivered to the Trustee so removed and one copy to the successor
trustee.
(d) The Owners of a majority of the Percentage Interests represented
by any Class of Class A Certificates with the consent of the Certificate
Insurer, or, if there are no Class A Certificates then Outstanding, by such
Percentage Interest represented by any Class of Class B Certificates then
Outstanding, may at any time remove the Trustee and appoint a successor trustee
by delivering to the Trustee to be removed, to the successor trustee so
appointed, to the Seller and to the Certificate Insurer, copies of the record of
the act taken by the Owners, as provided for in Section 12.3 hereof.
(e) If the Trustee fails to perform its duties in accordance with
the terms of this Agreement or becomes ineligible to serve as Trustee, the
Seller or the Certificate Insurer may remove the Trustee and the Seller, with
the consent of the Certificate Insurer, or the Certificate Insurer may appoint a
successor trustee by written instrument, in triplicate, signed by the Seller or
the Certificate Insurer duly authorized, one complete set to the Seller, one
complete set to the Trustee so removed and one complete set to the successor
trustee so appointed.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Seller shall promptly appoint a successor trustee satisfying the eligibility
requirements of Section 9.8.
(g) The Seller shall give notice of any removal of the Trustee by
mailing notice of such event by first-class mail, postage prepaid, to the Owners
as their names and addresses appear in the Register. Each notice shall include
the name of the successor trustee and the address of its corporate trust office.
Section 9.10. Acceptance of Appointment by Successor Trustee. Every
successor trustee appointed hereunder shall execute, acknowledge and deliver to
the Seller on behalf of the Trust and to its predecessor Trustee an instrument
accepting such appointment hereunder and stating its eligibility to serve as
Trustee 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 vested with all the rights, powers,
trusts, duties and obligations of its predecessor hereunder; but, on request of
the Seller or the successor trustee, such predecessor Trustee shall, upon
payment of its charges then unpaid, execute and deliver an instrument
transferring to such successor trustee all of the rights, powers and trusts of
the Trustee so ceasing to act, and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such trustee so ceasing to
act hereunder. Upon request of any such successor trustee, the Seller on behalf
of the Trust shall execute any and all instruments for more fully and certainly
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vesting in and confirming to such successor trustee all such rights, powers and
trusts. The Seller shall reimburse the Trustee for any costs reasonably incurred
hereunder resulting from the Trustee's removal under Section 9.09(d) hereof.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Seller shall mail notice thereof by first-class mail, postage
prepaid, to the Owners at their last addresses appearing in the Register. The
Seller shall send a copy of such notice to the Rating Agencies. If the Seller
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 Seller.
No successor trustee shall accept its appointment unless at the time
of such acceptance such successor shall be qualified and eligible under this
Article IX.
Section 9.11. Merger, Conversion, Consolidation or Succession to
Business of the Trustee. Any corporation or association into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such corporation or
association shall be otherwise qualified and eligible under this Article IX. In
case any Certificates have been executed, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such Trustee
may adopt such execution and deliver the Certificates so executed with the same
effect as if such successor Trustee had itself executed such Certificates.
Section 9.12. Reporting; Withholding. (a) The Trustee shall timely
provide to the Owners the Internal Revenue Service's Form 1099 and any other
statement required by applicable Treasury regulations as determined by the
Seller, and shall withhold, as required by applicable law, federal, state or
local taxes, if any, applicable to distributions to the Owners, including but
not limited to backup withholding under Section 3406 of the Code and the
withholding tax on distributions to foreign investors under Sections 1441 and
1442 of the Code.
(b) The Trustee shall timely file all reports required to be filed
by the Trust with any federal, state or local governmental authority having
jurisdiction over the Trust, including other reports that must be filed with the
Owners, such as the Internal Revenue Service's Form 1066 and Schedule Q and the
form required under Section 6050K of the Code, if applicable. Furthermore, the
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Trustee shall report to Owners, if required, with respect to the allocation of
expenses pursuant to Section 212 of the Code in accordance with the specific
instructions to the Trustee by the Seller with respect to such allocation of
expenses. The Trustee shall collect any forms or reports from the Owners
determined by the Seller to be required under applicable federal, state and
local tax laws.
(c) The Trustee shall provide to the Internal Revenue Service and to
persons described in section 860(E)(e)(3) and (6) of the Code the information
described in Treasury Regulation section 1.860D-1(b)(5)(ii), or any successor
regulation thereto. Such information will be provided in the manner described in
Treasury Regulation section 1.860E-2(a)(5), or any successor regulation thereto.
Section 9.13. Liability of the Trustee. Except during the
continuance of an Event of Default, the Trustee shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Trustee herein. Neither the Trustee nor any of the directors,
officers, employees or agents of the Trustee shall be under any liability on any
Certificate or otherwise to any Account, the Seller, the Master Servicer, any
Sub-Servicer, the Transferor or any Owner 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
Trustee or any such Person against any liability which would otherwise be
imposed by reason of negligent action, negligent failure to act or bad faith in
the performance of duties or by reason of reckless disregard of obligations and
duties hereunder. Subject to the foregoing sentence, the Trustee shall not be
liable for losses on investments of amounts in any Account (except for any
losses on obligations on which the bank serving as Trustee is the obligor). In
addition, the Seller covenants and agrees to indemnify the Trustee, and when the
Trustee is acting as Master Servicer, the Trustee in its capacity as Master
Servicer, from, and hold it harmless against, any and all losses, liabilities,
damages, claims or expenses (including reasonable and documented legal fees and
expenses) other than those resulting from the negligence or bad faith of the
Trustee. The Trustee and any director, officer, employee or agent of the Trustee
may rely and shall be protected in acting or refraining from acting in good
faith on any certificate, notice or other document of any kind prima facie
properly executed and submitted by the Authorized Officer of any Person
respecting any matters arising hereunder.
Section 9.14. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Property may at the time be located, the Master
Servicer and the Trustee acting jointly and with the consent of the Certificate
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Insurer 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, of all or any part of the Trust Estate or
separate Trustee or separate Trustees of any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Owners and the Certificate Insurer, such title to the Trust Estate, or any part
thereof, and, subject to the other provisions of this Section 9.14, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. If the Master Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in the case any event indicated in Section 9.2 of this Agreement
shall have occurred and be continuing, the Trustee alone (with the consent of
the Certificate Insurer) 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 9.8 and no notice to Owners of
the appointment of any co-Trustee or separate Trustee shall be required under
Section 9.9.
Every separate Trustee and co-Trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
(i) 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
(it being understood that such separate Trustee or co-Trustee is not
authorized to act separately without the Trustee joining in such act),
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 Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate Trustee or
co-Trustee, but solely at the direction of the Trustee;
(ii) No co-Trustee hereunder shall be held personally liable by
reason of any act or omission of any other co-Trustee hereunder; and
(iii) The Master Servicer and the Trustee acting jointly with the
consent of the Certificate Insurer may at any time accept the resignation
of or remove any separate Trustee or co-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
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separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Section 9.14. 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 and a copy thereof given to the
Master Servicer.
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.
ARTICLE X
SERVICING AND ADMINISTRATION
OF MORTGAGE LOANS
Section 10.1. General Servicing Procedures. (a) Acting directly or
through one or more Sub-Servicers as provided in Section 10.3, the Master
Servicer shall service and administer the Mortgage Loans in accordance with this
Agreement and shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable and consistent with the
terms of this Agreement. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Master Servicer shall not have any duties,
responsibilities, or fiduciary relationship with the parties hereto except those
expressly set forth herein, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or shall otherwise exist against the Master Servicer.
(b) The Master Servicer may, and is hereby authorized to, perform
any of its servicing responsibilities with respect to all or certain of the
Mortgage Loans through a Sub-Servicer as it may from time to time designate, but
no such designation of a Sub-Servicer shall serve to release the Master Servicer
from any of its obligations under this Agreement. Such Sub-Servicer shall have
all the rights and powers of the Master Servicer with respect to such Mortgage
Loans under this Agreement.
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(c) Without limiting the generality of the foregoing, but subject to
the provisions of this Article X, the Master Servicer in its own name or in the
name of a Sub-Servicer hereby is authorized and empowered, which authorization
may further be evidenced, at the reasonable request of the Master Servicer, by a
power of attorney executed and delivered by the Trustee, on behalf of itself,
the Owners and the Trustee or any of them, (i) to execute and deliver 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 with respect to the Properties, (ii) to institute foreclosure
proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of
any Property in the name of the Trust, and (iii) to hold title in the name of
the Trust to any Property upon such foreclosure or deed in lieu of foreclosure
on behalf of the Trustee; provided, however, that to the extent any instrument
described in clause (i) preceding would be delivered by the Master Servicer
outside of its ordinary procedures for mortgage loans held for its own account
the Master Servicer shall, prior to executing and delivering such instrument,
obtain the prior written consent of the Certificate Insurer, and provided
further, however, that Section 10.14(a) shall constitute a power of attorney
from the Trustee to the Master Servicer to execute an instrument of satisfaction
(or assignment of mortgage without recourse) with respect to any Mortgage Loan
paid in full (or with respect to which payment in full has been escrowed).
Subject to Sections 10.13 and 10.14, the Trustee shall execute any powers of
attorney and other documents as the Master Servicer or such Sub-Servicer shall
reasonably request and that are provided to the Trustee to enable the Master
Servicer and such Sub-Servicer to carry out their respective servicing and
administrative duties hereunder. The costs to the Master Servicer of delivering
any satisfactions described in clause (i) above shall be paid by the Master
Servicer to the extent not recoverable from the related Mortgagor under
applicable state law.
(d) The Master Servicer, with the approval of the Seller, shall have
the right to approve requests of Mortgagors for consent to (i) partial releases
of Mortgages and (ii) alterations and removal, demolition or division of
Properties subject to Mortgages. No such request shall be approved by the Master
Servicer unless: (1) (x) the provisions of the related Note and Mortgage have
been complied with; (y) the Loan-to-Value Ratio (which may, for this purpose, be
determined at the time of any such action in a manner reasonably acceptable to
the Certificate Insurer) after any release does not exceed the Loan-to-Value
Ratio set forth for such Mortgage Loan in the Mortgage Loan Schedule; and (z)
the lien priority, monthly payment, Coupon Rate or maturity date of the related
Mortgage is not affected (except in accordance with Section 10.2) or (2) the
Certificate Insurer shall have approved the granting of such request and shall
not unreasonably withhold such approval.
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(e) The Master Servicer shall give prompt notice to the Seller, the
Transferor, the Trustee and to the Certificate Insurer of any action, of which
the Master Servicer has actual knowledge, to (i) assert a claim against the
Trust or (ii) assert jurisdiction over the Trust.
(f) Servicing Advances incurred by the Master Servicer or any
Sub-Servicer in connection with the servicing of the Mortgage Loans (including
any penalties in connection with the payment of any taxes and assessments or
other charges) on any Property shall be recoverable by the Master Servicer or
such Sub-Servicer to the extent described in this Agreement.
(g) Each of the Seller, the Master Servicer, any Sub-Servicer, the
Transferor, the Trustee and the Certificate Insurer shall be entitled to rely,
and shall be fully protected in relying, upon any promissory note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Mortgagor(s)), independent accountants and other experts selected by the Seller,
the Master Servicer, each Sub-Servicer, the Transferor, the Trustee or the
Certificate Insurer. The Master Servicer shall be fully justified in failing or
refusing to take any action under this Agreement for which failure or refusal it
has sought and received instructions from the Owners and which failure or
refusal has been consented to by the Certificate Insurer. The Master Servicer
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the Mortgage Loans in accordance with an express
written request of the Owners to which the Certificate Insurer has consented,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon the Seller, the Master Servicer, the Transferor, the Trustee,
the Certificate Insurer and all Owners. In the event of any conflicting
instructions or requests, the instructions or requests delivered by the
Certificate Insurer shall prevail, unless such instructions or requests violate
the express terms of this Agreement or violate applicable law.
(h) The Master Servicer shall have no liability to the Seller, the
Transferor, the Trustee, the Certificate Insurer, the Owners or any other Person
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 the foregoing shall not apply to any breach of representations or
warranties made by the Master Servicer herein, or to any specific liability
imposed upon the Master Servicer pursuant to this Agreement or any liability
that would otherwise be imposed upon the Master Servicer by reason of its
willful misconduct, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations or duties
hereunder.
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Section 10.2. Collection of Certain Mortgage Loan Payments. The
Master Servicer shall generally service the Mortgage Loans in a prudent manner
consistent with the Master Servicer's Servicing and Collection Guide (the
"Servicing Standards"), and agrees to 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,
follow collection procedures for all Mortgage Loans at least as rigorous as
those the Master Servicer would take in servicing similar mortgage loans and in
collecting payments thereunder for its own account. Consistent with the
foregoing, the Master Servicer may (i) in its discretion waive or permit to be
waived any late payment charge or assumption fee or any other fee or charge
which the Master Servicer would be entitled to retain pursuant to Section 10.15
as servicing compensation, (ii) extend the due date for payments due on a Note
for a period (with respect to each payment as to which the due date is extended)
not greater than 125 days after the initially scheduled due date for such
payment and (iii) amend any Note to extend the maturity thereof, provided that
no maturity shall be extended beyond the maturity date of the Mortgage Loan with
the latest maturity date and that no more than 1.0% of the Original Pool
Principal Balance of the Mortgage Loans shall have a maturity date which has
been extended beyond the maturity date thereof at the Cut-off Date; provided
further, with respect to clauses (i), (ii) and (iii), that such action does not
violate applicable REMIC provisions. In the event the Master Servicer shall
consent to the deferment of the due dates for payments due on a Note, the Master
Servicer shall nonetheless make payment of any required Delinquency Advance with
respect to the payments so extended to the same extent as if such installment
were due, owing and Delinquent and had not been deferred, and shall be entitled
to reimbursement therefor in accordance with Sections 10.8(d)(i)(D) and 10.9(a)
hereof.
The Master Servicer may not waive prepayment charges or penalty
interest in connection with Prepayments. Any such amounts so received shall be
paid over to the Seller as received.
Section 10.3. Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers. The Master Servicer may enter into Sub-Servicing Agreements for
any servicing and administration of Mortgage Loans with any institution which is
in compliance with the laws of each state necessary to enable it to perform its
obligations under such Sub-Servicing Agreement and which (i) has been designated
an approved seller-servicer by FHLMC or FNMA for first and second mortgage loans
and (ii) (except for LSI Financial Group), has equity of at least $15,000,000,
as determined in accordance with generally accepted accounting principles, and
(iii) must have demonstrated proficiency in the servicing of mortgage loans
having similar characteristics (including credit characteristics) to the
Mortgage Loans. The Master Servicer shall give notice to the Seller, the
Transferor, the Trustee, Moody's, S&P and the Certificate Insurer of the removal
or appointment of any Sub-Servicer. Any such Sub-Servicing Agreement shall be
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consistent with and not violate the provisions of this Agreement. For purposes
of this Agreement, the Master Servicer shall be deemed to have received payments
on or with respect to Mortgage Loans when any Sub-Servicer has received such
payments. For purposes of this Agreement, the Master Servicer shall be deemed to
have made a payment required to be made by it hereunder when any Sub-Servicer
has made such payment in the manner required of the Master Servicer hereunder.
For purposes of this Agreement, the Master Servicer shall be deemed to have
delivered any document required to be delivered by it hereunder when any
Sub-Servicer has delivered such document in the manner required of the Master
Servicer hereunder. As of the Startup Day, the only Sub-Servicer is LSI
Financial Group.
Section 10.4. Successor Sub-Servicers. Each Sub-Servicing Agreement
shall expressly provide that the Master Servicer or the Trustee shall be
entitled to terminate any Sub-Servicing Agreement in accordance with the terms
and conditions of such Sub-Servicing Agreement and to enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 10.3. The
Trustee shall have no duty or obligation hereunder to monitor or supervise the
performance of any Sub-Servicer.
Section 10.5. Liability of Master Servicer. The Master Servicer
shall not be relieved of its obligations under this Agreement notwithstanding
any Sub-Servicing Agreement or any of the provisions of this Agreement relating
to agreements or arrangements between the Master Servicer and a Sub-Servicer or
otherwise, and the Master Servicer shall be obligated to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans. The Master Servicer shall be entitled to enter
into any agreement with a Sub-Servicer for indemnification of the Master
Servicer by such Sub-Servicer and nothing contained in such Sub-Servicing
Agreement shall be deemed to limit or modify this Agreement.
Section 10.6. No Contractual Relationship Between Sub-Servicer and
Trustee or the Owners. Any Sub-Servicing Agreement and any other transactions or
services relating to the Mortgage Loans involving a Sub-Servicer (other than the
Sub-Servicing Agreement dated the date hereof among the Master Servicer, LSI
Financial Group and the Trustee) shall be deemed to be between the Sub-Servicer,
the Master Servicer and any other parties thereto alone and the Transferor, the
Trustee and the Owners shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to any
Sub-Servicer except as set forth in Sections 10.4 and 10.7, unless expressly
made a party thereto.
Section 10.7. Assumption or Termination of Sub-Servicing Agreement
by Trustee. In connection with the assumption of the responsibilities, duties
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and liabilities and of the authority, power and rights of the Master Servicer
hereunder by the Trustee pursuant to Section 11.1, it is understood and agreed
that the Master Servicer's rights and obligations under any Sub-Servicing
Agreement then in force between the Master Servicer and a Sub-Servicer may be
assumed or terminated by the Trustee at its option, and the Master Servicer
shall cause each Sub-Servicing Agreement to so provide. Each Sub-Servicing
Agreement shall contain term provisions at least as restrictive as those
contained herein with respect to the Master Servicer.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party documents and
records relating to each Sub-Servicing Agreement and an accounting of amounts
collected and held by it and otherwise use its best reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party.
Section 10.8. Principal and Interest Account.
(a) The Master Servicer shall establish and maintain at one or more
Designated Depository Institutions the Principal and Interest Account as a
segregated account.
Subject to Subsections (c) and (d) below, the Master Servicer and
any Sub-Servicer shall deposit all collections (other than amounts escrowed for
taxes and insurance) related to the Mortgage Loans to the Principal and Interest
Account on a daily basis (but no later than the first Business Day after
receipt).
On or before the Startup Day, the Master Servicer shall deposit to
the Principal and Interest Account (i) all scheduled payments due and collected
(other than amounts escrowed for taxes and insurance) on the Mortgage Loans
after the Cut-Off Date and prior to the Startup Day and (ii) all unscheduled
collections (other than amounts escrowed for taxes and insurance) on the
Mortgage Loans received on or after the Cut-Off Date and prior to the Startup
Day.
(b) All funds in the Principal and Interest Account shall be
invested in Eligible Investments maturing not later than the Business Day
immediately preceding the related Remittance Date; provided, however, in the
event that Trustee is acting as Successor Master Servicer, such amounts may be
held uninvested. The Principal and Interest Account shall be held in trust in
the name of the Trustee for the benefit of the Owners. Any investment earnings
on funds held in the Principal and Interest Account shall be for the account of
the Master Servicer and may only be withdrawn from the Principal and Interest
Account by the Master Servicer immediately following the remittance of the
Monthly Remittances by the Master Servicer. Any investment losses shall be paid
by the Master Servicer to the Principal and Interest Account from the Master
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Servicer's own funds. Any references herein to amounts on deposit in the
Principal and Interest Account shall refer to amounts net of such investment
earnings and to additional amounts in respect of investment losses. The Trustee
shall have no responsibility or liability for actions taken by the Master
Servicer, including withdrawals, with respect to the Principal and Interest
Accounts.
(c) The Master Servicer shall deposit to the Principal and Interest
Account all principal and interest payments from the related Mortgagors received
by the Master Servicer (including any Prepayments), Net Proceeds, other
recoveries or amounts related to the Mortgage Loans received by the Master
Servicer, Compensating Interest, Delinquency Advances together with any amounts
which are reimbursable to the Master Servicer from the Principal and Interest
Account, the amount of any Loan Purchase Price received or paid by the Master
Servicer, the amount of any Substitution Amount received by the Master Servicer,
REO income pursuant to Section 10.13(c) hereof, and amounts required to be
deposited therein pursuant to Section 10.11 hereof in connection with blanket
insurance policies and any proceeds received by the Master Servicer in
connection with the termination of the Trust, but net of (i) the Master
Servicing Fee with respect to each Mortgage Loan and other servicing
compensation to the Master Servicer as permitted by Section 10.15 hereof, (ii)
Net Proceeds to the extent such Net Proceeds exceed the sum of (I) the Principal
Balance of the related Mortgage Loan, plus (II) accrued and unpaid interest on
such Mortgage Loan at the Coupon Rate applicable to the related Remittance
Period (net of the Master Servicing Fee) and (iii) prepayment charges and
similar amounts to be paid over to the Seller pursuant to Section 10.2 hereof.
Amounts described in clause (ii) of the preceding sentence shall be retained by
the Master Servicer as additional servicing compensation or paid over to the
related Mortgagor if required by law.
(d) (i) The Master Servicer may make withdrawals from the Principal
and Interest Account only for the following purposes:
(A) to effect the timely remittance to the Trustee of the related
Monthly Remittance due on each Remittance Date;
(B) to withdraw investment earnings on amounts on deposit in the
Principal and Interest Account;
(C) to withdraw amounts that have been deposited to the Principal
and Interest Account in error;
(D) to reimburse itself for amounts which represent Reimbursable
Advances made by the Master Servicer from its own funds and
subsequently collected from the related Mortgagor; and
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(E) to clear and terminate the Principal and Interest Account in
connection with the termination of the Trust.
(ii) On the tenth day of each month (or the immediately following
Business Day if the tenth day does not fall on a Business Day), the Master
Servicer shall send to the Trustee a report, in such electronic form as may be
agreed upon by the Master Servicer, the Seller, the Certificate Insurer and the
Trustee, detailing the payments on the Mortgage Loans for each of the Mortgage
Loan Groups during the prior Remittance Period. Such report shall be in the form
and have the specifications as may be agreed to between the Master Servicer, the
Seller, and the Trustee from time to time and, in any event, shall have such
information as shall be necessary to enable the Trustee to perform its
obligations hereunder.
In addition, on or prior to each Remittance Date, the Master
Servicer will furnish to the Seller, the Transferor, the Trustee and to the
Certificate Insurer the following information for each of the three Mortgage
Loan Groups as of the close of business on the first business day of the current
calendar month:
(A) the total number of Mortgage Loans and the aggregate Principal
Balances thereof, together with the number and aggregate
principal balances of Mortgage Loans (a) 30-59 days
Delinquent, (b) 60-89 days Delinquent and (c) 90 or more days
Delinquent;
(B) the number and aggregate principal balances of all Mortgage
Loans in foreclosure proceedings (and whether any such
Mortgage Loans are also included in any of the statistics
described in the foregoing clause (A));
(C) the number and aggregate principal balances of all Mortgage
Loans relating to Mortgagors in bankruptcy proceedings (and
whether any such Mortgage Loans are also included in any of
the statistics described in the foregoing clauses (A) and
(B));
(D) the number and aggregate principal balances of all Mortgage
Loans relating to REO Properties (and whether any such
Mortgage Loans are also included in any of the statistics
described in the foregoing clauses (A), (B) and (C));
(E) the number and aggregate principal balances of all Mortgage
Loans as to which foreclosure proceedings were commenced
during the prior Remittance Period;
(F) a schedule regarding cumulative foreclosures since the Cut-Off
Date;
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(G) a schedule regarding the Group I Cumulative Net Realized
Losses, the Group II Cumulative Net Realized Losses, the Group
III Cumulative Net Realized Losses and the Cumulative Net
Realized Losses;
(H) the book value of any REO Property and any income received
from REO Properties during the prior Remittance Period; and
(I) such other information as the Trustee, the Seller, the
Certificate Insurer or the Transferor may reasonably request
and as is produced by the Master Servicer in the ordinary
course of its business.
(iii) On each Remittance Date the Master Servicer shall remit the
Group I Monthly Remittance, the Group II Monthly Remittance and the Group III
Monthly Remittance to the Trustee by wire transfer, or otherwise make funds
available in immediately available funds.
(e) In connection with any exercise by the Seller of its option and
related termination under Article VIII hereof, upon written request of the
Seller, the Master Servicer shall remit to the Trustee all amounts (net of
investment earnings and providing for investment losses pursuant to Section
10.8(b), net of the Master Servicing Fee and net of amounts reimbursable for
Delinquency Advances and Servicing Advances) then on deposit in the Principal
and Interest Account for deposit to the Certificate Account, which deposit shall
be deemed to have occurred immediately preceding such purchase.
Section 10.9. Delinquency Advances and Servicing Advances. (a) If
the amount on deposit in the Principal and Interest Account with respect to any
Mortgage Loan Group as of any Remittance Date is less than the related Monthly
Remittance for such Remittance Date, the Master Servicer shall deposit to the
Principal and Interest Account with respect to such Mortgage Loan Group a
sufficient amount of its own funds to make such amount equal to the related
Monthly Remittance for such Remittance Date. Such amounts of the Master
Servicer's own funds so deposited are "Delinquency Advances". Any Delinquency
Advances funded by the Master Servicer from its own funds are reimbursable from
subsequent collections on or with respect to the related Mortgage Loan,
including Liquidation Proceeds, Insurance Proceeds, Released Mortgaged Property
Proceeds, and payments from the related Mortgagor. Notwithstanding anything to
the contrary contained in this Agreement, no Delinquency Advance or Servicing
Advance shall be required to be made by the Master Servicer if such Delinquency
Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance.
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The Master Servicer shall be permitted to fund its payment of
Delinquency Advances on any Remittance Date from collections on any Mortgage
Loan deposited to the Principal and Interest Account subsequent to the related
Remittance Period, and shall deposit to the Certificate Account with respect to
Delinquency Advances funded from amounts on deposit in the Principal and
Interest Account (i) collections from the Mortgagor whose delinquency gave rise
to the shortfall which resulted in such Delinquency Advance and (ii) Net
Liquidation Proceeds recovered on account of the related Mortgage Loan to the
extent of the amount of aggregate Delinquency Advances related thereto. In any
event, to the extent the Master Servicer uses such funds, the Master Servicer
must reimburse the Principal and Interest Account by the next Remittance Date to
the extent necessary to provide for the related Monthly Remittance.
(b) The Master Servicer will pay all reasonable and customary
"out-of-pocket" costs and expenses (including reasonable legal fees) incurred in
the performance of its servicing obligations including, but not limited to, the
cost of (i) Preservation Expenses, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of REO Property
(including, without limitation, realtors' commissions) and (iv) advances made
for taxes, insurance and other charges against the Property. Each such
expenditure will constitute a "Servicing Advance". The Master Servicer may
recover Servicing Advances from the Mortgagors to the extent permitted by the
Mortgage Loans or, if not theretofore recovered from the Mortgagor on whose
behalf such Servicing Advance was made, from Liquidation Proceeds, Insurance
Proceeds and/or Released Mortgage Property Proceeds realized with respect to the
related Mortgage Loan. In no case may the Master Servicer recover Servicing
Advances from the principal and interest payments on any Mortgage Loan or from
any amounts relating to any other Mortgage Loan.
Section 10.10. Compensating Interest. A full month's interest at the
related Coupon Rate less the Master Servicing Fee is due to the Trustee on the
outstanding Principal Balance of each Mortgage Loan as of the beginning of each
Remittance Period. If a Prepayment of a Mortgage Loan occurs during any calendar
month, any difference between the interest collected from the Mortgagor during
such calendar month and the full month's interest at the related Coupon Rate
less the Master Servicing Fee with respect to such Mortgage Loan ("Compensating
Interest") that is due shall be deposited prior to the Remittance Date by the
Master Servicer to the Principal and Interest Account and shall be included in
the related Monthly Remittance to be made available to the Trustee on the next
succeeding Remittance Date. The Master Servicer shall not be entitled to
reimbursement for Compensating Interest payments.
Section 10.11. Maintenance of Insurance. (a) The Master Servicer
shall cause to be maintained with respect to each Mortgage Loan a hazard
insurance policy with a generally acceptable carrier licensed in the state in
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which the Property is located that provides for fire and extended coverage, and
which provides for a recovery by the Trust of insurance proceeds relating to
such Mortgage Loan in an amount not less than the least of (i) the outstanding
principal balance of the Mortgage Loan (together in the case of a Second
Mortgage Loan, with the outstanding principal balance of the Senior Lien), (ii)
the minimum amount required to compensate for loss or damage on a replacement
cost basis and (iii) the full insurable value of the premises and which
otherwise conforms to the description thereof set forth in clause (xvii) of
Section 3.2(b). The Master Servicer shall indemnify the Trust out of the Master
Servicer's own funds for any loss to the Trust resulting from the Master
Servicer's failure to maintain the insurance required by this paragraph.
(b) If the Mortgage Loan at the time of origination relates to a
Property in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Master Servicer will
cause to be maintained with respect thereto a flood insurance policy in a form
meeting the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable carrier, and which provides for a
recovery by the Master Servicer on behalf of the Trust of insurance proceeds
relating to such Mortgage Loan of not less than the least of (i) the outstanding
principal balance of the Mortgage Loan, (ii) the minimum amount required to
compensate for damage or loss on a replacement cost basis and (iii) the maximum
amount of insurance that is available under the Flood Disaster Protection Act of
1973, as amended and which otherwise conforms to the description thereof set
forth in clause (xviii) of Section 3.2(b). The Master Servicer shall indemnify
the Trust and the Certificate Insurer out of the Master Servicer's own funds for
any loss to the Trust and the Certificate Insurer resulting from the Master
Servicer's failure to maintain the insurance required by this Section.
(c) In the event that the Master Servicer shall obtain and maintain
a blanket policy with an insurer acceptable to the Certificate Insurer insuring
against fire and hazards of extended coverage on all of the Mortgage Loans,
then, to the extent such policy names the Master Servicer as loss payee and
provides coverage in an amount equal to the aggregate unpaid principal balance
on the Mortgage Loans with co-insurance, and otherwise complies with the
requirements of this Section 10.11, the Master Servicer shall be deemed
conclusively to have satisfied its obligations with respect to fire and hazard
insurance coverage under this Section 10.11, it being understood and agreed that
such blanket 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 Property a policy complying with subsection (a) of this Section 10.11,
and there shall have been a loss which would have been covered by such policy,
deposit in the Principal and Interest Account from the Master Servicer's own
funds the difference, if any, between the amount that would have been payable
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under a policy complying with subsection (a) of this Section 10.11 and the
amount paid under such blanket policy. Upon the request of the Trustee, the
Master Servicer shall cause to be delivered to the Trustee, a certified true
copy of such policy.
(d) The Seller shall indemnify the Master Servicer for any loss to
the Master Servicer if any Mortgage Loan does not, at the time the Master
Servicer assumed the servicing of such Mortgage Loan, have in place the
insurance described in Sections 3.2(b)(xvi) and (xvii) hereof and described
herein and, if applicable, Section 3.2(b)(xviii) hereof. Without limiting the
obligations of the Seller pursuant to Section 3.2, the Master Servicer shall
only be required to maintain insurance on any Property if such insurance was in
place at the time the Master Servicer assumed the servicing of the related
Mortgage Loan.
Section 10.12. Due-on-Sale Clauses; Assumption and Substitution
Agreements. (a) When a Property has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall, to the extent it has knowledge of such
conveyance or prospective conveyance, exercise its rights to accelerate the
maturity of the related Mortgage Loan under any "due on sale" clause contained
in the related Mortgage or Note; provided, however, that the Master Servicer
shall not exercise any such right if the "due on sale" clause, in the reasonable
belief of the Master Servicer, is not enforceable under applicable law; and
provided, further, that the Master Servicer may refrain from exercising any such
right if the Certificate Insurer gives its prior consent to such
non-enforcement.
(b) The Mortgage Loan, if assumed, shall conform in all respects to
the requirements, representations and warranties of this Agreement. The Master
Servicer shall notify the Trustee in writing that any applicable assumption or
substitution agreement has been completed and shall forward to the Trustee the
original recorded copy of such assumption or substitution agreement, which copy
shall be added by the Trustee in writing to the related File and which shall,
for all purposes, be considered a part of such File to the same extent as all
other documents and instruments constituting a part thereof. The Master Servicer
shall be responsible for recording any such assumption or substitution
agreements. In connection with any such assumption or substitution agreement,
the required monthly payment on the related Mortgage Loan shall not be changed
but shall remain as in effect immediately prior to the assumption or
substitution, the stated maturity or outstanding principal amount of such
Mortgage Loan shall not be changed, the Coupon Rate shall not be changed nor
shall any required monthly payments of principal or interest be deferred or
forgiven. Any fee collected by the Master Servicer or the Sub-Servicer for
consenting to any such conveyance or entering into an assumption or substitution
agreement shall be retained by or paid to the Master Servicer as additional
servicing compensation.
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(c) Notwithstanding the foregoing clauses (a) and (b) 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 which
the Master Servicer may be restricted by law from preventing, for any reason
whatsoever.
Section 10.13. Realization Upon Defaulted Mortgage Loans. (a) The
Master Servicer shall foreclose upon or otherwise comparably effect the
ownership in the name of the Trust of Properties relating to defaulted Mortgage
Loans as to which no satisfactory arrangements can be made for collection of
Delinquent payments and which the Master Servicer has not purchased pursuant to
Section 10.13(f), unless the Master Servicer reasonably believes that Net
Liquidation Proceeds with respect to such Mortgage Loan would not be increased
as a result of such foreclosure or other action, in which case such Mortgage
Loan will be charged-off and will become a Liquidated Loan. The Master Servicer
shall have no obligation to purchase any Property at any foreclosure sale. The
Master Servicer will give notice of any such charge-off to the Certificate
Insurer by delivery of a Liquidation Report in the form attached as Exhibit G
hereto. In connection with such foreclosure or other conversion, the Master
Servicer shall exercise foreclosure procedures with the same degree of care and
skill in their exercise or use, as it would exercise or use under the
circumstances in the conduct of its own affairs. Any amounts, including
Liquidation Expenses, advanced by the Master Servicer in connection with such
foreclosure or other action shall constitute "Servicing Advances" within the
meaning of Section 10.9(b) hereof.
(b) The Master Servicer shall sell any REO Property within 23 months
of its acquisition by the Trust, unless the Master Servicer obtains for the
Trustee an opinion of counsel experienced in federal income tax matters,
addressed to the Trustee, the Certificate Insurer and the Master Servicer, to
the effect that the holding by the Trust of such REO Property for a greater
specified period will not result in the imposition of taxes on "Prohibited
Transactions" of the Trust as defined in Section 860F of the Code or cause the
REMICs to fail to qualify under the REMIC Provisions at any time that any
Certificates are outstanding.
(c) Notwithstanding the generality of the foregoing provisions, the
Master Servicer shall manage, conserve, protect and operate each REO Property
for the Owners solely for the purpose of its prompt disposition and sale in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust of any "income from non-permitted 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 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
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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 Owners and the Certificate
Insurer, rent the same, or any part thereof, as the Master Servicer deems to be
in the best interest of the Owners and the Certificate Insurer for the period
prior to the sale of such REO Property. The net income from the sale of an REO
Property shall be deposited in the Principal and Interest Account.
(d) If the Master Servicer has reason to believe that a Property
which the Master Servicer is contemplating acquiring in foreclosure or by deed
in lieu of foreclosure contains environmental or hazardous waste risks known to
the Master Servicer, the Master Servicer shall notify the Seller, the
Transferor, the Trustee and the Certificate Insurer prior to acquiring the
Property. The Master Servicer shall not institute foreclosure actions with
respect to such a property if it reasonably believes that such action would not
be consistent with the Servicing Standards, and the Master Servicer is not
permitted to take any action with respect to such a Property without the prior
written approval of the Seller, the Transferor, the Trustee, and the Certificate
Insurer, and in no event shall the Master Servicer be required to manage,
operate or take any other action with respect thereto which the Master Servicer
in good faith believes will result in "clean-up" or other liability under
applicable law, unless the Master Servicer receives an indemnity acceptable to
it in its sole discretion.
(e) The Master Servicer shall determine, with respect to each
defaulted Mortgage Loan, when it has recovered, whether through trustee's sale,
foreclosure sale or otherwise, all amounts, if any, it expects to recover from
or on account of such defaulted Mortgage Loan, whereupon such Mortgage Loan
shall become a "Liquidated Loan". The Master Servicer shall deliver to the
Seller, the Transferor, the Trustee and the Certificate Insurer on each
Remittance Date a Liquidation Report in the form annexed as Exhibit G hereto
with respect to each Mortgage Loan as to which the Master Servicer made a
determination that such Mortgage Loan has become a Liquidated Loan during the
related Remittance Period.
(f) The Master Servicer has the right and the option, but not the
obligation, to purchase for its own account any Mortgage Loan which becomes
Delinquent, in whole or in part, as to four consecutive monthly installments or
any Mortgage Loan as to which enforcement proceedings have been brought by the
Master Servicer pursuant to this Section 10.13 or which is in default or as to
which a default is imminent. Any such Mortgage Loan so purchased shall be
purchased on a Remittance Date at a purchase price equal to the Loan Purchase
Price thereof, which purchase price shall be deposited in the Principal and
Interest Account.
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(g) The Master Servicer shall consult with the Seller with respect
to its obligations under this Section 10.13.
Section 10.14. Trustee to Cooperate; Release of Files. (a) Upon the
payment in full of any Mortgage Loan (including the repurchase of any Mortgage
Loan or any liquidation of such Mortgage Loan through foreclosure or otherwise),
or the receipt by the Master Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer
shall deliver to the Trustee a Master Servicer's Trust Receipt. Upon receipt of
such Master Servicer's Trust Receipt, the Trustee shall promptly release the
related File, in trust to (i) the Master Servicer, (ii) an escrow agent or (iii)
any employee, agent or attorney of the Trustee, in each case pending its release
by the Master Servicer, such escrow agent or such employee, agent or attorney of
the Trustee, as the case may be. Upon any such payment in full, or the receipt
of such notification that such funds have been placed in escrow, the Master
Servicer is authorized to give, as attorney-in-fact for the Trustee and the
mortgagee under the Mortgage which secured the Note, an instrument of
satisfaction (or assignment of Mortgage without recourse) regarding the Property
relating to such Mortgage, which instrument of satisfaction or assignment, as
the case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of payment in full, it being understood and agreed that
no expense incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Principal and
Interest Account. In lieu of executing any such satisfaction or assignment, as
the case may be, the Master Servicer may prepare and submit to the Trustee, a
satisfaction (or assignment without recourse, if requested by the Person or
Persons entitled thereto) in form for execution by the Trustee with all
requisite information completed by the Master Servicer; in such event, the
Trustee shall execute and acknowledge such satisfaction or assignment, as the
case may be, and deliver the same with the related File, as aforesaid.
(b) From time to time and as appropriate in the servicing of any
Mortgage Loan, including, without limitation, foreclosure or other comparable
conversion of a Mortgage Loan or collection under any applicable Insurance
Policy, the Trustee shall (except in the case of the payment or liquidation
pursuant to which the related File is released to an escrow agent or an
employee, agent or attorney of the Trustee), promptly upon request of the Master
Servicer and delivery to the Trustee of a Master Servicer's Trust Receipt,
release the related File to the Master Servicer and shall execute such documents
as shall be reasonably necessary to the prosecution of any such proceedings,
including, without limitation, an assignment without recourse of the related
Mortgage to the Master Servicer. The Trustee shall complete in the name of the
Trustee any endorsement in blank on any Note prior to releasing such Note to the
Master Servicer. Such receipt shall obligate the Master Servicer to return the
File to the Trustee when the need therefor by the Master Servicer no longer
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exists unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of the liquidation information, in physical or electronic form, the Master
Servicer's Trust Receipt shall be released by the Trustee to the Master
Servicer.
Notwithstanding the foregoing, at no time shall the Trustee release
to the Master Servicer pursuant to this Section 10.14 a quantity of Files in
excess of 10% of the number of Mortgage Loans within the Pool, excluding Files
relating to Mortgage Loans which have been paid in full or have become
Liquidated Loans (unless otherwise approved by the Certificate Insurer).
(c) In all cases where the Master Servicer needs the Trustee to sign
any document or to release a File within a particular period of time, the Master
Servicer shall notify an Authorized Officer of the Trustee by telephone or
telecopy of such need and the Trustee shall thereupon use its best efforts to
comply with the Master Servicer's needs, but in any event will comply within two
Business Days of such request.
Section 10.15. Master Servicing Compensation. As compensation for
its activities hereunder, the Master Servicer shall be entitled to retain the
amount of the Master Servicing Fee with respect to each Mortgage Loan.
Additional servicing compensation in the form of release and satisfaction fees
(to the extent allowed by law), bad check charges, assumption fees, late payment
charges, and any other servicing-related fees, Net Proceeds not required to be
deposited in the Principal and Interest Account pursuant to Section 10.8(c)(ii)
and similar items may, to the extent collected from Mortgagors, be retained by
the Master Servicer.
Section 10.16. Annual Statement as to Compliance. The Master
Servicer, at its own expense, will deliver to the Seller, the Transferor, the
Trustee and the Certificate Insurer, annually, commencing in 1998, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Master Servicer during such preceding fiscal year and of
performance under this Agreement has been made under such officer's supervision,
and (ii) to the best of such officer's knowledge, based on such review, the
Master Servicer has fulfilled all its obligations under this Agreement for such
year, or, if there has been a default in the fulfillment of one or more such
obligations, specifying each such default known to such officer and the nature
and status thereof including the steps being taken by the Master Servicer to
remedy such default. Any Sub-Servicer which is not a Master Servicer Affiliate
also shall deliver an annual statement as to compliance in the form described
above or the Master Servicer shall cover their performance in their statement.
These statements shall be available to Owners upon written request.
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Section 10.17. Annual Independent Certified Public Accountants'
Reports. Annually, commencing in 1998, the Master Servicer, at its own expense,
shall cause to be delivered to the Seller, the Transferor, the Trustee, the
Certificate Insurer, Moody's and S&P a letter or letters of a firm of
independent, nationally recognized certified public accountants reasonably
acceptable to the Certificate Insurer stating that such firm has, with respect
to the Master Servicer's overall servicing operations (i) performed applicable
tests in accordance with the compliance testing procedures as set forth in
Appendix 3 of the "Audit Guide for Audits of HUD Approved Non-Supervised
Mortgages" or (ii) examined such operations in accordance with the requirements
of the Uniform Single Attestation Program for Mortgage Bankers, and stating such
firm's conclusions relating thereto. These reports will be made available to
Owners upon written request.
Section 10.18. Access to Certain Documentation and Information
Regarding the Mortgage Loans; Confidentiality. The Master Servicer shall provide
to the Seller, the Transferor, the Trustee, the Certificate Insurer, and the
supervisory agents and examiners (as required in the latter case by applicable
state and federal regulations) of each of the foregoing access to the
documentation regarding the Mortgage Loans, such access being afforded without
charge but only upon reasonable request and during normal business hours at the
offices of the Master Servicer designated by it.
Upon any change in the format of the computer tape maintained by the
Master Servicer in respect of the Mortgage Loans, the Master Servicer shall
deliver a copy of such computer tape to the Trustee and the Seller and in
addition shall provide a copy of such computer tape to the Trustee and the
Seller at such other times as the Trustee and the Seller may request.
The Master Servicer, the Trustee, and the Certificate Insurer shall
keep confidential (including from affiliates thereof) information concerning the
Mortgage Loans and the underwriting criteria for the Mortgage Loans, except as
required by law.
Each of the Seller, the Transferor, the Trustee and the Certificate
Insurer acknowledges the proprietary nature of the software, software
procedures, software development tools, know-how, methodologies, processes and
technologies of the Master Servicer and any Sub-Servicer and agrees (i) that it
shall use the same means as it uses to protect its own confidential information,
but in no event less than reasonable means, to avoid disclosure by it or its
agents or employees to any third party of any confidential or proprietary
information of the Master Servicer or any Sub-Servicer, and (ii) that all such
software, software procedures, software development tools, know-how,
methodologies, process and technologies that are based upon trade secrets or
proprietary information of the Master Servicer or any Sub-Servicer shall be and
remain the property of the Master Servicer or any Sub-Servicer and that each of
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the Seller, the Transferor, the Trustee and the Certificate Insurer will have no
interest therein or claim thereto. Each Sub-Servicer shall be a third-party
beneficiary of this paragraph.
Section 10.19. Assignment of Agreement. The Master Servicer may not
assign its obligations under this Agreement, in whole or in part, unless it
shall have first obtained (i) the written consent of the Seller, the Trustee and
Certificate Insurer and (ii) the Trustee and Certificate Insurer shall have
received a confirmation letter from one or more rating agencies confirming the
rating of the Class A Certificates as AAA or its equivalent; provided, however,
that any assignee must meet the eligibility requirements set forth in Section
11.1(g) hereof for a successor servicer.
Section 10.20. Inspections by Certificate Insurer and Account
Parties; Errors and Omissions Insurance. (a) At any reasonable time and from
time to time upon reasonable notice, the Seller, the Transferor, the Certificate
Insurer, the Trustee, or any agents or representatives thereof may inspect the
Master Servicer's servicing operations and discuss the servicing operations of
the Master Servicer. The out-of-pocket costs and expenses incurred by the Master
Servicer or its agents or representatives in connection with any such
examinations or discussions shall be paid by the requesting party prior to the
occurrence and continuance of an Event of Default, and by the Master Servicer
after the occurrence and during the continuance of an Event of Default.
(b) The Master Servicer agrees to maintain or cause a Sub-Servicer
to maintain errors and omissions coverage and a fidelity bond, each at least to
the extent required by Section 305 of Part I of FNMA Guide or any successor
provision thereof or such other insurance arrangements reasonably satisfactory
to the Certificate Insurer.
Section 10.21. Financial Statements. The Master Servicer understands
that, in connection with the transfer of the Certificates, Owners may request
that the Master Servicer make available upon written request to prospective
Owners any publicly available annual audited financial statements of the Master
Servicer for one or more of the most recently completed four fiscal years for
which such statements are available, which request shall not be unreasonably
denied. Such financial statements shall also be supplied to the Certificate
Insurer.
The Master Servicer also agrees to make available on a reasonable
basis to the Seller, the Transferor, the Trustee, the Certificate Insurer, any
Owner or any prospective Owner a knowledgeable financial or accounting officer
for the purpose of answering reasonable questions respecting recent developments
affecting the Master Servicer or the financial statements of the Master Servicer
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and to permit the Seller, the Transferor, the Trustee, the Certificate Insurer,
any Owner or any prospective Owner to inspect the Master Servicer's servicing
facilities during normal business hours for the purpose of satisfying the
Seller, the Transferor, the Trustee, the Certificate Insurer, any Owner or such
prospective Owner that the Master Servicer has the ability to service the
Mortgage Loans in accordance with this Agreement.
Each requesting party shall use the same means as it uses to protect
its own confidential information, but in no event less than reasonable means, to
avoid disclosure by it or its agents or employees to any third party of any
confidential or proprietary information of the Master Servicer.
Section 10.22. REMIC. The Master Servicer covenants and agrees for
the benefit of the Owners (i) to take no action which would result in the
termination of REMIC status for either REMIC, (ii) not to engage in any
"prohibited transaction", as such term is defined in Section 860F(a)(2) of the
Code and (iii) not to engage in any other action which may result in the
imposition of any other taxes under the Code.
Section 10.23. The Designated Depository Institution. The Master
Servicer shall give the Seller, the Transferor, the Trustee and the Certificate
Insurer (a) at least thirty days' prior written notice of any anticipated change
of the Designated Depository Institution at which the Principal and Interest
Account is maintained and (b) written notice of any change in the ratings of
such Designated Depository Institution of which the Master Servicer is aware,
within two Business Days after discovery.
Section 10.24. Appointment of Custodian. If the Master Servicer
determines that the Trustee is unable to deliver Files to the Master Servicer as
required pursuant to Section 10.14 hereof, the Master Servicer shall so notify
the Seller, the Transferor, the Trustee, the Certificate Insurer, S&P and
Moody's, and make request that a custodian acceptable to the Seller, the Master
Servicer, the Transferor and the Certificate Insurer be appointed to retain
custody of the Files on behalf of the Trustee. The Seller, the Transferor and
the Trustee agree to co-operate reasonably with the Master Servicer in
connection with the appointment of such custodian. The Trustee shall pay from
the Trustee's Fee all reasonable fees and expenses of such custodian, in an
amount not to exceed 1 basis point of the Pool Principal Balance.
ARTICLE XI
EVENTS OF DEFAULT; REMOVAL OF MASTER SERVICER; MERGER
Section 11.1. Removal of Master Servicer; Resignation of Master
Servicer. (a) The Certificate Insurer (or, with the consent of the Certificate
Insurer, the Seller or the Owners of Class A Certificates evidencing at least
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a majority in Percentage Interest of all Class A Certificates) may remove the
Master Servicer upon the occurrence of any of the following events (each, an
"Event of Default"):
(i) The Master Servicer shall (I) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian or similar
entity with respect to itself or its property, (II) admit in writing its
inability to pay its debts generally as they become due, (III) make a
general assignment for the benefit of creditors, (IV) be adjudicated a
bankrupt or insolvent, (V) commence a voluntary case under the federal
bankruptcy laws of the United States of America or file a voluntary
petition or answer seeking reorganization, an arrangement with creditors
or an order for relief or seeking to take advantage of any insolvency law
or file an answer admitting the material allegations of a petition filed
against it in any bankruptcy, reorganization or insolvency proceeding or
(VI) cause corporate action to be taken by it for the purpose of effecting
any of the foregoing; or
(ii) If without the application, approval or consent of the Master
Servicer, a proceeding shall be instituted in any court of competent
jurisdiction, under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking in respect of the Master
Servicer an order for relief or an adjudication in bankruptcy,
reorganization, dissolution, winding up, liquidation, a composition or
arrangement with creditors, a readjustment of debts, the appointment of a
trustee, receiver, conservator, liquidator or custodian or similar entity
with respect to the Master Servicer or of all or any substantial part of
its assets, or other like relief in respect thereof under any bankruptcy
or insolvency law, and, if such proceeding is being contested by the
Master Servicer in good faith, the same shall (A) result in the entry of
an order for relief or any such adjudication or appointment or (B)
continue undismissed or pending and unstayed for any period of sixty (60)
consecutive days; or
(iii) The Master Servicer shall fail to perform any one or more of
its obligations hereunder (other than its obligations referenced in
clauses (vi) and (vii) below) and shall continue in default thereof for a
period of thirty (30) days after the earlier to occur of (x) the date on
which an Authorized Officer of the Master Servicer knows or reasonably
should know of such failure or (y) receipt by the Master Servicer of a
written notice from the Trustee, any Owner, the Seller, the Transferor or
the Certificate Insurer of said failure; or
(iv) The Master Servicer shall fail to cure any breach of any of its
representations and warranties set forth in Section 3.1(c) which
materially and adversely affects the interests of the Owners or
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Certificate Insurer for a period of thirty (30) days after the earlier of
(x) the date on which an Authorized Officer of the Master Servicer knows
or reasonably should know of such breach or (y) receipt by the Master
Servicer of a written notice from the Trustee, any Owner, the Seller, the
Transferor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the
Certificate Insurance Policy, or if the Certificate Insurer otherwise
funds any shortfall with its own money, because the amounts available to
the Trustee (other than from the Certificate Insurer) are insufficient to
make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required
Servicing Advance for a period of 30 days following the earlier of (x) the
date on which an Authorized Officer of the Master Servicer knows or
reasonably should know of such failure or (y) receipt by the Master
Servicer of a written notice from the Trustee, any Owner, the Seller, the
Transferor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required
Delinquency Advance, to pay any Compensating Interest or to pay over any
Monthly Remittance or other amounts required to be remitted by the Master
Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month
Delinquency Rate (including all foreclosures and REO Properties) exceeds
4.75% during the period November 1, 1996 through October 31, 1997, 5.50%
during the period November 1, 1997 through October 31, 1998, 6.25% during
the period November 1, 1998 through October 31, 1999, 7.25% during the
period November 1, 1999 through October 31, 2000, 8.25% during the period
November 1, 2000 through October 31, 2001, or 10.00% after November 1,
2001; or
(ix) If on any Payment Date occurring in November of any year,
commencing in November 1997, the aggregate Pool Cumulative Net Realized
Losses over the prior twelve month period exceed 0.75% of the average Pool
Principal Balance as of the close of business on the last day of each of
the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net
Realized Losses for all prior Remittance Periods since the Startup Day
exceed 3.25% of the Original Pool Principal Balance;
provided, however, that (x) prior to any removal of the Master Servicer pursuant
to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable
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grace period granted by any such clause shall have expired prior to the time
such occurrence shall have been remedied and (y) in the event of the refusal or
inability of the Master Servicer to comply with its obligations described in
clause (vii) above, such removal shall be effective (without the requirement of
any action on the part of the Seller, the Transferor, the Certificate Insurer or
of the Trustee) at 4 p.m. New York City time on the second Business Day
following the day on which the Trustee notifies an Authorized Officer of the
Master Servicer that a required amount described in clause (vii) above has not
been received by the Trustee, unless the required amount described in clause
(vii) above is paid by the Master Servicer prior to such time or the Certificate
Insurer grants an extension of time for such payment. Upon the Trustee's
obtaining actual knowledge that a required amount described in clause (vii)
above has not been made by the Master Servicer, the Trustee shall so notify an
Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon
as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in
clauses (viii), (ix) or (x) of Section 11.1(a), the Certificate Insurer may
remove the Master Servicer; provided, however, that if such occurrence of an
Event of Default is the result of circumstances beyond the Master Servicer's
control, the Master Servicer shall not be removed, and provided further, that in
the event of any disagreement between the Seller and the Certificate Insurer,
the decision of the Certificate Insurer shall control.
(c) The Master Servicer shall not resign from the obligations and
duties hereby imposed on it, except upon determination that its duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it, the other
activities of the Master Servicer so causing such a conflict being of a type and
nature carried on by the Master Servicer at the date of this Agreement. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an opinion of counsel to such effect which shall be delivered to
the Seller, the Transferor, the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become
effective until the Trustee or a successor Master Servicer acceptable to the
Certificate Insurer shall have assumed the Master Servicer's responsibilities
and obligations in accordance with this Section.
(e) Upon removal or resignation of the Master Servicer, the Master
Servicer also shall promptly deliver or cause to be delivered to a successor
Master Servicer or the Trustee all the books and records (including, without
limitation, records kept in electronic form) that the Master Servicer has
maintained for the Mortgage Loans, including all tax bills, assessment notices,
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insurance premium notices and all other documents as well as all original
documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or
resignation shall be endorsed by it to the Trustee and remitted directly and
immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee
(x) may solicit bids for a successor Master Servicer as described below, and (y)
pending the appointment of a successor Master Servicer as a result of soliciting
such bids, shall serve as Master Servicer; provided, however, that the Trustee
shall not be liable for any acts, omissions or obligations of the Master
Servicer prior to such succession or for any breach by the Master Servicer of
any of its representations and warranties contained in this Agreement or in any
related document or agreement. The Trustee shall, if it is unable to obtain a
qualifying bid and is prevented by law from acting as Master Servicer, appoint,
or petition a court of competent jurisdiction to appoint, any housing and home
finance institution, bank or mortgage servicing institution which (i) has been
designated as an approved seller-servicer by FNMA or FHLMC for first and second
mortgage loans, (ii) has equity of not less than $15,000,000, as determined in
accordance with generally accepted accounting principles, and (iii) must have
demonstrated proficiency in the servicing of mortgage loans having similar
characteristics (including credit characteristics) to the Mortgage Loans, (iv)
and must be acceptable to the Certificate Insurer 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.
The compensation of any successor Master Servicer (including,
without limitation, the Trustee) so appointed shall be the aggregate Master
Servicing Fees, together with the other servicing compensation in the form of
assumption fees, late payment charges or otherwise as provided in Sections 10.8
and 10.15.
(h) In the event the Trustee solicits bids as provided above, the
Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above. Such public announcement shall specify that the
successor Master Servicer shall be entitled to the full amount of the aggregate
Master Servicing Fees as servicing compensation (including the servicing
compensation received in the form of assumption fees, late payment charges or
otherwise) as provided in Sections 10.8 and 10.15. Within thirty days after any
such public announcement, the Trustee shall, with the consent of the Certificate
Insurer, negotiate and effect the sale, transfer and assignment of the servicing
rights and responsibilities hereunder to the qualified party submitting the
highest satisfactory bid. The Trustee shall deduct from any sum received by the
Trustee from the successor to the Master Servicer in respect of such sale,
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transfer and assignment all costs and expenses of any public announcement and of
any sale, transfer and assignment of the servicing rights and responsibilities
hereunder. After such deductions, the remainder of such sum shall be paid by the
Trustee to the Master Servicer at the time of such sale, transfer and assignment
to the successor Master Servicer.
(i) The Trustee and such successor Master Servicer shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. The Master Servicer agrees to cooperate with the Trustee and
any successor Master Servicer in effecting the termination of the Master
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor Master Servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Master Servicer's functions hereunder and shall promptly also transfer to the
Trustee or such successor Master Servicer, as applicable, all amounts which then
have been or should have been deposited in the Principal and Interest Account by
the Master Servicer or which are thereafter received with respect to the
Mortgage Loans. Neither the Trustee nor any other successor Master Servicer
shall be held liable by reason of any failure to make, or any delay in making,
any distribution hereunder or any portion thereof caused by (i) the failure of
the Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
(j) The Trustee or any other successor Master Servicer, upon
assuming the duties of Master Servicer hereunder, shall immediately make all
Delinquency Advances and pay all Compensating Interest which the Master Servicer
has theretofore failed to remit with respect to the Mortgage Loans; provided,
however, that if the Trustee is acting as successor Master Servicer or another
successor Master Servicer has become the Master Servicer, the Trustee or such
other successor Master Servicer, as the case may be, shall only be required to
make Delinquency Advances (including the Delinquency Advances described in this
clause (j)) if, in the Trustee's or such other successor Master Servicer's, as
the case may be, reasonable good faith judgment, such Delinquency Advances will
ultimately be recoverable from the related Mortgage Loans. The Trustee, while
acting as Master Servicer hereunder, shall only be obligated to make payments
with respect to Compensating Interest to the extent of its Master Servicing Fee.
(k) The Master Servicer that is being removed or is resigning shall
give notice to the Mortgagors and to the Rating Agencies of the transfer of the
servicing to the successor Master Servicer.
(l) Any successor Master Servicer shall assume all rights and
obligations of the predecessor Master Servicer under this Agreement, except
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those arising before succession (other than the obligation to make Delinquency
Advances) and under Section 3.1(b) (insofar as such provisions relate to the
predecessor Master Servicer).
(m) If the Master Servicer is removed pursuant to Section 11.1(a) or
the first paragraph of Section 11.1(b) hereof the Master Servicer shall remain
entitled to reimbursement for Reimbursable Advances to the extent that the
related amounts are thereafter recovered with respect to the related Mortgage
Loans.
Section 11.2. Trigger Events; Removal of Master Servicer.
(a) Upon determination by the Certificate Insurer that a Trigger
Event has occurred, the Certificate Insurer shall give notice of such Trigger
Event to the Master Servicer, the Seller, the Trustee and to Moody's and S&P.
(b) At any time after such determination and while a Trigger Event
is continuing, the Certificate Insurer may direct the Trustee to remove the
Master Servicer if the Certificate Insurer makes a determination that the manner
of master servicing was a factor contributing to the end of the delinquencies or
losses incurred in the Trust Fund.
(c) Upon receipt of directions to remove the Master Servicer
pursuant to the preceding clause (b), the Trustee shall notify the Master
Servicer that it has been terminated and the Master Servicer shall be terminated
in the same manner as specified in Section 11.1.
(d) After notice of occurrence of a Trigger Event has been given and
while a Trigger Event is continuing, until and unless the Master Servicer has
been removed as provided in clause (b), the Master Servicer covenants and agrees
to act as the Master Servicer for a term from the occurrence of the Trigger
Event to the end of the calendar quarter in which such Trigger Event occurs,
which term may at the Certificate Insurer's discretion be extended by notice to
the Trustee for successive terms of three (3) calendar months each, until the
termination of the Trust Fund. The Master Servicer will, upon the receipt of
each such notice of extension (a "Master Servicer Extension Notice") become
bound for the duration of the term covered by such Master Servicer Extension
Notice to continue as Master Servicer subject to and in accordance with this
Agreement. If, as of the fifteenth (15th) day prior to the last day of any term
as the Master Servicer, the Trustee shall not have received any Master Servicer
Extension Notice from the Certificate Insurer, the Trustee shall, within five
(5) days thereafter, give written notice of such nonreceipt to the Certificate
Insurer and the Master Servicer. If any such term expires without a Master
Servicer Extension Notice then the Trustee shall act as Master Servicer as
provided in Section 11.1.
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(e) No provision of this Section 11.2 shall have the effect of
limiting the rights of the Company, the Trustee, the Certificateholders or the
Certificate Insurer under Section 11.1.
Section 11.3. Merger, Conversion, Consolidation or Succession to
Business of Master Servicer. Subject to the immediately succeeding sentence, any
corporation into which the Master Servicer 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 Master Servicer shall be a party, or
any corporation succeeding to all or substantially all of 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 (x) that such corporation meets the
qualifications set forth in Section 11.1(g) and (y) that any successor Master
Servicer must meet the qualifications set forth in Section 11.1(g). Any
Affiliate into which the Master Servicer may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation of the Master Servicer and an Affiliate, or any
Affiliate succeeding to all or substantially all of 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.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Compliance Certificates and Opinions. Upon any
application or request by the Seller, the Transferor or the Owners to the
Trustee to take any action under any provision of this Agreement, the Seller,
the Transferor or the Owners, as the case may be, shall furnish to the Trustee a
certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with, except that
in the case of any such application or request as to which the furnishing of any
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate need be
furnished.
Except as otherwise specifically provided herein, each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; and
(c) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 12.2. Form of Documents Delivered to the Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate of an Authorized Officer of the Trustee may be
based, insofar as it relates to legal matters, upon an opinion of counsel,
unless such Authorized Officer knows, or in the exercise of reasonable care
should know, that the opinion is erroneous. Any such certificate of an
Authorized Officer of the Trustee or any opinion of counsel may be based,
insofar as it relates to factual matters upon a certificate or opinion of, or
representations by, one or more Authorized Officers of the Seller, the Master
Servicer or of the Transferor, stating that the information with respect to such
factual matters is in the possession of the Seller, the Master Servicer or the
Transferor, unless such Authorized Officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous. Any opinion of
counsel may also be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Authorized Officer of the
Trustee, stating that the information with respect to such matters is in the
possession of the Trustee, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Any opinion of counsel may be based
on the written opinion of other counsel, in which event such opinion of counsel
shall be accompanied by a copy of such other counsel's opinion and shall include
a statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
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Section 12.3. Acts of Owners. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by the Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Owners in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, delivered to and with the consent of the Seller, the
Transferor and the Certificate Insurer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "act" of the Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Trust, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The ownership of Certificates shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Owner of any Certificate shall bind the Owner of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Trust in reliance thereon, whether or
not notation of such action is made upon such Certificates.
Section 12.4. Notices, etc. to Trustee. Any request, demand,
authorization, direction, notice, consent, waiver or act of the Owners or other
documents provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with the Trustee by any Owner or by the Seller shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with and received by the Trustee at its corporate trust office as
set forth in Section 12.19 hereof.
Section 12.5. Notices and Reports to Owners; Waiver of Notices.
Where this Agreement provides for notice to Owners of any event or the mailing
of any report to Owners, such notice or report shall be sufficiently given
(unless otherwise herein expressly provided) if mailed, first-class postage
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prepaid, to each Owner affected by such event or to whom such report is required
to be mailed, at the address of such Owner as it appears on the Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice or the mailing of such report. In any case where a
notice or report to Owners is mailed in the manner provided above, neither the
failure to mail such notice or report nor any defect in any notice or report so
mailed to any particular Owner shall affect the sufficiency of such notice or
report with respect to other Owners, and any notice or report which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given or provided.
Where this Agreement provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owners shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Agreement, then any manner of giving such
notice as the Seller shall direct to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Agreement provides for notice to any rating agency that
rated any Certificates, failure to give such notice shall not affect any other
rights or obligations created hereunder.
Section 12.6. Rules by Trustee and Seller. The Trustee may make
reasonable rules for any meeting of Owners. The Seller may make reasonable rules
and set reasonable requirements for its functions.
Section 12.7. Successors and Assigns. All covenants and agreements
in this Agreement by any party hereto shall bind its successors and assigns,
whether so expressed or not.
Section 12.8. Severability. In case any provision in this Agreement
or in the Certificates shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12.9. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, expressed or implied, shall give to any Person, other than the
Owners, the Certificate Insurer and the parties hereto and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under
this Agreement.
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Section 12.10. Legal Holidays. In any case where the date of any
Remittance Date, any Payment Date, any other date on which any distribution to
any Owner is proposed to be paid, or any date on which a notice is required to
be sent to any Person pursuant to the terms of this Agreement shall not be a
Business Day, then (notwithstanding any other provision of the Certificates or
this Agreement) payment or mailing need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made or mailed on the nominal date of any such Remittance Date, such Payment
Date, or such other date for the payment of any distribution to any Owner or the
mailing of such notice, as the case may be, and no interest shall accrue for the
period from and after any such nominal date, provided such payment is made in
full on such next succeeding Business Day.
Section 12.11. Governing Law. This Agreement and each Certificate
shall be construed in accordance with and governed by the laws of the State of
New York applicable to agreements made and to be performed therein.
Section 12.12. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 12.13. Usury. The amount of interest payable or paid on any
Certificate under the terms of this Agreement shall be limited to an amount
which shall not exceed the maximum nonusurious rate of interest allowed by the
applicable laws of the State of New York or any applicable law of the United
States permitting a higher maximum nonusurious rate that preempts such
applicable New York laws, which could lawfully be contracted for, charged or
received (the "Highest Lawful Rate"). In the event any payment of interest on
any Certificate exceeds the Highest Lawful Rate, the Trust stipulates that such
excess amount will be deemed to have been paid to the Owner of such Certificate
as a result of an error and the Owner receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the Trustee
on behalf of the Trust, refund the amount of such excess or, at the option of
such Owner, apply the excess to the payment of principal of such Certificate, if
any, remaining unpaid. In addition, all sums paid or agreed to be paid to the
Trustee for the benefit of Owners of Certificates for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
Certificates.
Section 12.14. Amendment. The Seller, the Master Servicer, the
Transferor and the Trustee, may at any time and from time to time, with the
prior written consent of the Certificate Insurer but without the consent of the
Owners, amend this Agreement, and the Trustee shall consent to such amendment,
for the purpose of (i) curing any ambiguity, or correcting or supplementing any
provision hereof which may be inconsistent with any other provision hereof, or
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to add provisions hereto which are not inconsistent with the provisions hereof,
(ii) upon receipt of an opinion of counsel experienced in federal income tax
matters to the effect that no entity-level tax will be imposed on the Trust or
upon the transferor of a Residual Certificate as a result of the ownership of
any Residual Certificate by a Disqualified Organization, removing the
restriction on transfer set forth in Section 5.8(b) hereof or (iii) complying
with the requirements of the Code and the regulations proposed or promulgated
thereunder; provided, however, that any such action shall not, as evidenced by
an opinion of counsel delivered to the Trustee, materially and adversely affect
the interests of any Owner or materially and adversely affect (without its
written consent) the rights and interests of the Certificate Insurer.
This Agreement may also be amended by the Seller, the Master
Servicer, the Transferor and the Trustee at any time and from time to time, with
the prior written approval of the Certificate Insurer and of not less than 66
2/3% of the Percentage Interest represented by each affected Class of
Certificates then Outstanding, for the purpose of adding any provisions or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Owners hereunder; provided,
however, that no such amendment shall (a) change in any manner the amount of, or
change the timing of, payments which are required to be distributed to any Owner
without the consent of the Owner of such Certificate or (b) reduce the aforesaid
percentages of Percentage Interests which are required to consent to any such
amendments, without the consent of the Owners of all Certificates of the Class
or Classes affected then Outstanding.
The Trustee shall be entitled to receive upon request, and shall be
fully protected in relying in good faith upon, an opinion of counsel reasonably
acceptable to the Trustee stating that the execution of such amendment is
authorized or permitted by this Agreement.
Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Owner and to the Rating Agencies.
The Certificate Insurer and the Owners, if they so request, shall be
provided with copies of any amendments to this Agreement, together with copies
of any opinions or other documents or instruments executed in connection
therewith.
The Trustee shall not be required to enter into any amendment which
affects its rights or obligations hereunder.
The definitions of "Group I Specified Subordinated Amount", "Group
II Specified Subordinated Amount" and "Group III Specified Subordinated Amount"
may be amended by the Seller, the Master Servicer, the Transferor and the
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Trustee, with the consent of the Certificate Insurer, in any respect without the
consent of, or notice to, the Owners of any Certificates; provided, (x) that the
Certificate Insurer is not then in default, (y) that the effect of such change
would not be to alter materially (in the judgment of the Seller) the weighted
average life of the related Class A Certificates and (z) the then-current
ratings on the related Class A Certificates are not thereby reduced.
Section 12.15. REMIC Status; Taxes. (a) The Tax Matters Person shall
prepare and file or cause to be filed with the Internal Revenue Service Federal
tax or information returns with respect to each REMIC and the Certificates
containing such information and at the times and in such manner as may be
required by the Code or applicable Treasury regulations, and shall furnish to
Owners such statements or information at the times and in such manner as may be
required thereby. For this purpose, the Tax Matters Person may, but need not,
rely on any proposed regulations of the United States Department of the
Treasury. The Tax Matters Person shall indicate the election to treat each REMIC
as a REMIC (which election shall apply to the taxable period ending December 31,
1996 and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe. The Trustee, as Tax Matters Person appointed
pursuant to Section 12.17 hereof shall sign all tax information returns filed
pursuant to this Section 12.16. The Tax Matters Person shall provide information
necessary for the computation of tax imposed on the transfer of a Residual
Certificate to a Disqualified Organization, or an agent of a Disqualified
Organization, or a pass-through entity in which a Disqualified Organization is
the record holder of an interest. The Trustee shall not be required to file a
separate tax return for the Supplemental Interest Trust.
(b) The Tax Matters Person shall timely file all reports required to
be filed by the Trust with any federal, state or local governmental authority
having jurisdiction over the Trust, including other reports that must be filed
with the Owners, such as the Internal Revenue Service's Form 1066 and Schedule Q
and the form required under Section 6050K of the Code, if applicable to REMICs.
Furthermore, the Tax Matters Person shall report to Owners, if required, with
respect to the allocation of expenses pursuant to Section 212 of the Code in
accordance with the specific instructions to the Tax Matters Person by the
Seller with respect to such allocation of expenses. The Tax Matters Person shall
collect any forms or reports from the Owners determined by the Seller to be
required under applicable federal, state and local tax laws.
(c) The Tax Matters Person shall provide to the Internal Revenue
Service and to persons described in Section 860E(e)(3) and (6) of the Code the
information described in Treasury Regulation Section 1.860D-1(b)(5)(ii), or any
successor regulation thereto. Such information will be provided in the manner
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described in Treasury Regulation Section 1.860E-2(a)(5), or any successor
regulation thereto.
(d) The Seller covenants and agrees to within ten Business Days
after the Startup Day provide to the Trustee any information necessary to enable
the Trustee to meet its obligations under subsections (b) and (c) above.
(e) The Trustee, the Seller and the Master Servicer each covenants
and agrees for the benefit of the Owners (i) to take no action which would
result in the termination of "REMIC" status for either REMIC, (ii) not to engage
in any "prohibited transaction", as such term is defined in Section 860F(a)(2)
of the Code and (iii) not to engage in any other action which may result in the
imposition on the Trust of any other taxes under the Code, including, without
limitation, for purposes of this paragraph any alteration, modification,
amendment, extension, waiver or forbearance with respect to any Mortgage Loan.
(f) The Trust shall, for federal income tax purposes, maintain books
on a calendar year basis and report income on an accrual basis.
(g) No Eligible Investment shall be sold prior to its stated
maturity (unless sold pursuant to a plan of liquidation in accordance with
Article VIII hereof).
(h) Neither the Seller nor the Trustee shall enter into any
arrangement by which the Trustee will receive a fee or other compensation for
services rendered pursuant to this Agreement, which fee or other compensation is
paid from the Trust Estate, other than as expressly contemplated by this
Agreement.
(i) Notwithstanding the foregoing clauses (g) and (h), the Trustee,
the Seller may engage in any of the transactions prohibited by such clauses,
provided that the Trustee shall have received an opinion of counsel experienced
in federal income tax matters to the effect that such transaction does not
result in a tax imposed on the Trustee or cause a termination of REMIC status
for either REMIC; provided, however, that such transaction is otherwise
permitted under this Agreement.
Section 12.16. Additional Limitation on Action and Imposition of
Tax. (a) Any provision of this Agreement to the contrary notwithstanding, the
Trustee shall not, without having obtained an opinion of counsel experienced in
federal income tax matters to the effect that such transaction does not result
in a tax imposed on the Trust or cause a termination of REMIC status for either
REMIC, (i) sell any assets in the Trust Estate, (ii) accept any contribution of
assets after the Startup Day or (iii) agree to any modification of this
Agreement.
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(b) In the event that any tax is imposed on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" as defined in Section 860G(c) of the Code, on any
contribution to either REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, such tax shall be paid by (i) the
Trustee, if such tax arises out of or results from the Trustee's negligence or
willful misconduct, (ii) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
this Agreement, or otherwise (iii) the Owners of the Residual Certificates in
proportion to their Percentage Interests. To the extent such tax is chargeable
against the Owners of the Residual Certificates, notwithstanding anything to the
contrary contained herein, the Trustee is hereby authorized to retain from
amounts otherwise distributable to the Owners of the Residual Certificates on
any Payment Date sufficient funds for the payment of such tax.
Section 12.17. Appointment of Tax Matters Person. A Tax Matters
Person will be appointed by the Owners of the Residual Certificates for all
purposes of the Code and such Tax Matters Person will perform, or cause to be
performed, such duties and take, or cause to be taken, such actions, as are
required to be performed or taken by the Tax Matters Person under the Code. The
Trustee hereby agrees to act as the Tax Matters Person (and the Trustee is
hereby appointed by the Owners of the Residual Certificates as the Tax Matters
Person) for each REMIC held by the Trust.
Section 12.18. Reports to the Securities and Exchange Commission.
The Trustee shall, on behalf of the Trust, cause to filed with the Securities
and Exchange Commission any periodic reports required to be filed under the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder. Upon the
request of the Trustee, each of the Master Servicer and the Seller shall
cooperate with the Trustee in the preparation of any such report and shall
provide to the Trustee in a timely manner all such information as the Trustee
may reasonably request in connection with the performance of its duties and
obligations under this Section.
Section 12.19. Notices. All notices hereunder shall be given as
follows, until any superseding instructions are given to all other Persons
listed below:
The Seller: Access Financial Lending Corp.
and Master 400 Highway 169 South
Servicer Suite 300
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
Tel: (612) 542-6500
Fax: (612) 542-6510
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The Transferor: Access Financial Receivables Corp.
400 Highway 169 South
Suite 410
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
The Trustee: The Chase Manhattan Bank
450 West 33rd Street, 10th Floor
New York, NY 10001
Attention: Global Trust Services
Access Financial Mortgage
Loan Trust 1996-4
Tel: (212) 946-3237
Fax: (212) 946-8191
The Certificate
Insurer : Financial Security Assurance, Inc.
350 Park Avenue
New York, NY 10022
Attention: Senior Vice President-
Surveillance
Tel: (212) 826-0100
Fax: (212) 888-5278
or such other address or telecopy number as may hereafter
be furnished to the Trustee and the Master Servicer in
writing by the Certificate Insurer. In each case in which
a notice or other communication to the Certificate
Insurer refers to an Event of Default or a claim under
the Certificate Insurance Policy or with respect to which
failure on the part of the Certificate Insurer to respond
shall be deemed to constitute consent or acceptance, then
a copy of such notice or other communication should also
be sent to the attention of the General Counsel and the
Head-Financial Guaranty Group and shall be marked to
indicate "URGENT MATERIAL ENCLOSED."
Moody's: Moody's Investors Service
99 Church Street
New York, New York 10007
Attention: The Home Equity
Monitoring Department
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S & P: Standard & Poor's
26 Broadway
15th Floor
New York, New York 10004
Attention: Residential Mortgage
Surveillance Dept.
Underwriters: c/o Prudential Securities
Incorporated
One New York Plaza, 15th Floor
New York, New York 10292-2015
Tel: (212) 778-1000
Fax: (212) 778-7401
Section 12.20. Grant of Security Interest. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans and all other
assets constituting the Trust Estate by the Transferor to the Trust be, and be
construed as, a sale of the Mortgage Loans and such other assets constituting
the Trust Estate by the Transferor and not a pledge by the Seller to secure a
debt or other obligation of the Transferor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans and
other assets constituting the Trust Estate are held to be property of the
Seller, then (a) it is the express intent of the parties that such conveyance be
deemed as a pledge of the Mortgage Loans and all other assets constituting the
Trust Estate to the Trust to secure a debt or other obligation of the Seller and
this Agreement shall be deemed to be a security agreement within the meaning of
the Uniform Commercial Code and the conveyance provided for in Section 3.3
hereof shall be deemed a grant by the Transferor to the Trust of a security
interest in all of the Transferor's right, title and interest in and to the
Mortgage Loans and all other assets constituting the Trust Estate.
Accordingly, the Transferor hereby grants to the Trustee a security
interest in the Mortgage Loans and all other assets constituting the Trust
Estate for the purpose of securing to the Trust the performance by the
Transferor of the obligations under this Agreement. Notwithstanding the
foregoing, the parties hereto intend the conveyance pursuant to Section 3.3 to
be a true, absolute and unconditional sale of the Mortgage Loans and all other
assets constituting the Trust Estate by the Transferor to the Trust, the
Transferor shall take such actions, and the Trustee shall take such actions as
directed by the Transferor, as may be necessary to ensure that if this Agreement
were deemed to create a security interest, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such for the term of this Agreement. Without
limiting the generality of the foregoing, the Seller shall file, or shall cause
to be filed, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code to perfect the Trustee's
security interest in or lien on the Mortgage Loans for the benefit of the
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Owners, including, without limitation, (x) continuation statements and (y) such
other statements as may be occasioned by (i) any change of name of the
Transferor or Trustee, (ii) any change of location of the place of business or
the chief executive office of the Transferor or (iii) any transfer of any
interest of the Transferor in any Mortgage Loan; provided, however, that with
respect to clauses (i) through (iii) above, the Transferor shall notify the
Trustee of any changes related thereto.
Section 12.21. Indemnification.
(a) The Master Servicer agrees to indemnify and hold the Trustee,
the Transferor, the Certificate Insurer, each Certificateholder harmless against
any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other reasonable costs, fees and expenses
that were caused by (i) the failure of the Master Servicer to perform its duties
and service the Mortgage Loans in compliance with the terms of this Agreement
and the Servicing Standards and (ii) a breach of any of the Master Servicer's
representations, covenants and warranties contained in this Agreement. This
indemnity shall survive the termination of this Agreement and the payment of the
Mortgage Loans, provided, that the Master Servicer shall have no liability to
indemnify any such indemnified party under this Agreement to the extent that any
such losses, penalties, fines, forfeitures, costs, fees, judgments, liabilities,
damages, claims or expenses were caused by the negligence, willful misconduct or
bad faith of such indemnified party. If the Master Servicer shall have made any
indemnity payment pursuant to this Section 12.21(a) and the recipient thereafter
collects from another Person any amount relating to the matters covered by the
foregoing indemnity, the recipient shall promptly repay such amount to the
Master Servicer.
Promptly after receipt by any of the above-mentioned indemnified
parties of notice of any claim or commencement of any action discussed above,
such indemnified party shall, if a claim in respect thereof is to be made
against the Master Servicer, promptly notify the Master Servicer in writing of
the claim or the commencement of that action; provided, however, that the
failure to notify the Master Servicer shall not relieve it from any liability
which it may have under this Section 12.21(a) except to the extent it has been
materially prejudiced by such failure; and provided, further, that the failure
to notify the Master Servicer shall not relieve it from any liability which it
may have to the above-mentioned indemnified parties otherwise than under this
Section 12.21(a).
(b) The Seller agrees to indemnify and hold the Master Servicer, the
Transferor, the Certificate Insurer, the Trustee, each Certificateholder
harmless against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other reasonable costs,
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fees and expenses that were caused by (i) the failure of the Seller to perform
its duties in accordance with the terms of this Agreement or (ii) a breach of
any of the Seller's representations, covenants, and warranties contained in this
Agreement. This indemnity shall survive the termination of this Agreement, the
payment of the Mortgage Loans and the removal or resignation of the Trustee;
provided, that the Seller shall have no liability to indemnify any such
indemnified party under this Agreement to the extent that any such losses,
penalties, fines, forfeitures, costs, fees and judgments, liabilities, damages,
claims or expenses were caused by the negligence, willful misconduct or bad
faith of such indemnified party. If the Seller shall have made any indemnity
payment pursuant to this Section 12.21 and the recipient thereafter collects
from another Person any amount relating to the matters covered by the foregoing
indemnity, the recipient shall promptly repay such amount to the Seller.
Promptly after receipt by any of the above-mentioned indemnified
parties of notice of any claim or commencement of any action discussed above,
such indemnified party shall, if a claim in respect thereof is to be made
against the Seller, promptly notify the Seller in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
Seller shall not relieve it from any liability which it may have under this
Section 12.21(b) except to the extent it has been materially prejudiced by such
failure; and provided, further, that the failure to notify the Seller shall not
relieve it from any liability which it may have to the above-mentioned
indemnified parties otherwise than under this Section 12.21(b).
(c) The Seller hereby covenants and agrees to indemnify, exonerate
and hold the Master Servicer, the Transferor, the Trustee, the Trust Estate, the
Owners, the Certificate Insurer, their respective directors, officers, agents
and employees (collectively, the "Indemnified Persons") harmless from and
against any and all damages, losses, liabilities, obligations, penalties, fines,
claims, litigation, demands, defenses, judgments, suits, proceedings, costs,
disbursements or expenses (including, without limitation, reasonable attorneys'
and experts' fees and disbursements as they become due and without waiting for
the ultimate outcome of the matter) of any kind or of any nature whatsoever
which may at any time be imposed upon, incurred by or asserted or awarded
against any Indemnified Person arising from or out of any Hazardous Substances
(as defined below) on, in, under or affecting all or any portion of any of the
Properties. The matters covered by the foregoing indemnity shall include,
without limitation, all of the following: (i) the costs of removal of any and
all Hazardous Substances from all or any portion of the Properties or any
adjacent property, (ii) the costs required to take necessary precautions to
protect against the release of Hazardous Substances on, in, under or affecting
any of the Properties into the air, ground, water, other public domain or any
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adjacent property to the extent required by applicable Environmental Laws or any
governmental authority, including, without limitation, the costs and expenses of
environmental testing and assessments, and (iii) the costs incurred to comply,
in connection with all or any portion of the Properties, with all applicable
Environmental Laws, including without limitation fines, penalties, and
administrative and overhead costs charged by any governmental entity.
The obligations of the Seller under this Section to compensate the
Indemnified Persons and to reimburse them for expenses (including, without
limitation, litigation expenses), disbursements and advances shall survive the
termination of this Agreement and the resignation or removal of the Trustee, and
continue thereafter for so long as any liability or expenses indemnified against
may be imposed under applicable Environmental Law (as defined below) against any
Indemnified Person.
(d) In no event shall any Person be indemnified for any losses,
expenses, damages, claims or liabilities incurred by such Person by reason of
such Person's (or such Person's agents) willful malfeasance, bad faith or
negligence.
"Hazardous Substance" shall include, without limitation: (i) those
substances included within the definitions of one or more of the terms
"hazardous substances," "hazardous materials" and "toxic substances" in CERCLA,
RCRA, and the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
ss.ss. 1801 et seq., and in the regulations promulgated pursuant to said laws
under applicable law; (ii) those substances listed in the United States
Department of Transportation Table (49 CFR 172 1 01 and amendments thereto) or
by the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are or become regulated under applicable
local, state or Federal laws or regulations, or which are classified as
hazardous or toxic under Federal, state, or local laws or regulations; and (iv)
any material, waste or substance which is (a) petroleum; (b) friable asbestos;
(c) polychlorinated biphenyls; (d) designated as a "Hazardous Substance"
pursuant to Section 311 of the Clean Water Act, as amended, 13 U.S.C. ss.ss.
1321 et seq. (33 U.S.C. ss.ss. 1321) or designated as "toxic pollutants" subject
to Chapter 26 of the Clean Water Act pursuant to Section 307 of the Clean Water
Act (33 U.S.C. ss.ss. 1317); (e) flammable explosive; or (f) radioactive
materials.
"Environmental Law" shall mean any Federal, state or local statute,
law, regulation, order, consent decree, judgment, permit, license, code,
covenant, deed restriction, common law, ordain or other requirement relating to
public health, safety or the environment, including, without limitation, those
relating to releases, discharges or emissions to air, water, land or ground
water, to the withdrawal or use of groundwater, to the use and handling of
polychlorinated biphenyls or asbestos, to the disposal, treatment, storage or
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management of hazardous or solid waste, or Hazardous Substances or crude oil, or
any fraction thereof, or to exposure to toxic hazardous materials, to the
handling, transportation, discharge or release of gaseous or liquid Hazardous
Substances and any regulation, order, notice or demand issued pursuant to such
law, statute or ordinance, in each case applicable to the property of Borrower
or the operation, construction or modification of any thereof, including without
limitation the following: CERCLA, the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act of 1976 and the Hazardous and Sold
Waste Amendments of 1984, the Hazardous Materials Transportation Act, as
amended, the Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1976, the Safe Drinking Water Control Act, the Clean Air Act of 1966, as
amended, the Toxic Substances Control Act of 1976, the Occupational Safety and
Health Act of 1977, as amended, the Emergency Planning and Community
Right-to-Know Act of 1986, the National Environmental Policy Act of 1975 and the
Oil Pollution Act of 1990 and any similar or implementing state law, and any
state statute and any further amendments to these laws, providing for financial
responsibility for cleanup or other actions with respect to the release or
threatened release of Hazardous Substances or crude oil, or any fraction thereof
and all rules, regulations, guidance documents and publication promulgated
thereunder.
ARTICLE XIII
CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
Section 13.1. Rights of the Certificate Insurer to Exercise Rights
of the Owners of the Class A Certificates. By accepting its Certificate, each
Owner of a Class A Certificate agrees that unless a Certificate Insurer Default
exists, the Certificate Insurer shall be deemed to be the Class A
Certificateholders for all purposes (other than with respect to payment on the
Class A Certificates) and will be entitled to exercise all rights of the Class A
Certificateholders under this Agreement.
In addition, each Owner of a Class A Certificate agrees that, unless
a Certificate Insurer Default exists, the rights specifically set forth above
may be exercised by the Owners of Class A Certificates only with the prior
written consent of the Certificate Insurer.
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Section 13.2. Trustee to Act Solely with Consent of the Certificate
Insurer. Unless a Certificate Insurer Default exists, the Trustee shall not:
(i) agree to any amendment to this Agreement; or
(ii) undertake any litigation pursuant to or in connection with
this Agreement; or
(iii) terminate or assume any Sub-Servicing Agreement pursuant to
this Agreement;
without the prior written consent of the Certificate Insurer which consent shall
not be unreasonably withheld; provided, however, if a Certificate Insurer
Default occurs hereunder, the Trustee shall act hereunder without Certificate
Insurer consent.
Section 13.3. Trust Fund and Accounts Held for Benefit of the
Certificate Insurer. The Trustee shall hold the Trust Estate and the Mortgage
Files for the benefit of the Owners and the Certificate Insurer and all
references in this Agreement and in the Certificates to the benefit of Owners of
the Certificates shall be deemed to include the Certificate Insurer. The Trustee
shall cooperate in all reasonable respects with any reasonable request by the
Certificate Insurer for action to preserve or enforce the Certificate Insurer's
rights or interests under this Agreement and the Certificates.
The Master Servicer hereby acknowledges and agrees that it shall
service and administer the Mortgage Loans and any REO Properties, and shall
maintain the Principal and Interest Account, for the benefit of the Owners and
for the benefit of the Certificate Insurer, and all references in this Agreement
to the benefit of or actions on behalf of the Owners shall be deemed to include
the Certificate Insurer.
Section 13.4. Claims Upon the Policy; Policy Payments Account. (a)
The Trustee shall establish a separate special purpose trust account for the
benefit of Owners of the Class A Certificates and the Certificate Insurer
referred to herein as the "Policy Payments Account" over which the Trustee shall
have exclusive control and sole right of withdrawal. The Trustee shall deposit
any amount paid under the Certificate Insurance Policy in the Policy Payments
Account and distribute such amount only for purposes of payment to Owners of
Class A Certificates of the Insured Payments for which a claim was made and such
amount may not be applied to satisfy any costs, expenses or liabilities of the
Master Servicer, the Trustee or the Trust. Amounts paid under the Certificate
Insurance Policy shall be transferred to the related Class A Distribution
Account in accordance with the next succeeding paragraph and disbursed by the
Trustee to Owners of Class A Certificates in accordance with Section 7.3. It
shall not be necessary for such payments to be made by checks or wire transfers
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separate from the checks or wire transfers used to pay the Insured Payments with
other funds available to make such payment. However, the amount of any payment
of principal of or interest on the Class A Certificates to be paid from funds
transferred from the Policy Payments Account shall be noted as provided in
paragraph (b) below in the Register and in the statement to be furnished to
Owners of the Certificates pursuant to Section 7.6. Funds held in the Policy
Payments Account shall not be invested by the Trustee.
On any Payment Date with respect to which a claim has been made
under the Certificate Insurance Policy, the amount of any funds received by the
Trustee as a result of any claim under the Certificate Insurance Policy, to the
extent required to pay the related Insured Distribution Amount on such Payment
Date shall be withdrawn from the Policy Payments Account and deposited in the
related Distribution Account and applied by the Trustee, together with the other
funds to be withdrawn from the related Distribution Account pursuant to this
Agreement, directly to the payment in full of the related Insured Distribution
Amount due on the related Class A Certificates. Funds received by the Trustee as
a result of any claim under the Certificate Insurance Policy shall be deposited
by the Trustee in the Policy Payments Account and used solely for payment to the
Owners of the Class A Certificates and may not be applied to satisfy any costs,
expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund.
Any funds remaining in the Policy Payments Account on the first Business Day
following a Payment Date shall be remitted to the Certificate Insurer, pursuant
to the instructions of the Certificate Insurer, by the end of such Business Day.
(b) The Trustee shall keep a complete and accurate record of the
amount of interest and principal paid in respect of any Class A Certificate from
moneys received under the Certificate Insurance Policy. The Certificate Insurer
shall have the right to inspect such records at reasonable times during normal
business hours upon one Business Day's prior notice to the Trustee.
(c) The Trustee shall promptly notify the Certificate Insurer and
Fiscal Agent of any proceeding or the institution of any action, of which a
Responsible Officer of the Trustee has actual knowledge, seeking the avoidance
as a preferential transfer under applicable bankruptcy, insolvency, receivership
or similar law (a "Preference Claim") of any distribution made with respect to
the Class A Certificates. Each Owner of a Class A Certificate, by its purchase
of Class A Certificates, the Master Servicer and the Trustee hereby agree that,
the Certificate Insurer (so long as no Certificate Insurer Default exists) may
at any time during the continuation of any proceeding relating to a Preference
Claim direct all matters relating to such Preference Claim, including, without
limitation, (i) the direction of any appeal of any order relating to such
Preference Claim and (ii) the posting of any surety, supersedeas or performance
bond pending any such appeal. In addition and without limitation of the
foregoing, the Certificate Insurer shall be subrogated to the rights of the
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Master Servicer, the Trustee and each Owner of a Class A Certificate in the
conduct of any such Preference Claim, including, without limitation, all rights
of any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
Section 13.5. Effects of Payments by the Certificate Insurer. To the
extent that the Certificate Insurer makes Insured Payments it will be entitled
to receive the related Reimbursement Amounts, pursuant to Section 7.3(b)(iii)(C)
hereof.
The Trustee and the Master Servicer shall cooperate in all respects
with any reasonable request by the Certificate Insurer for action to preserve or
enforce the Certificate Insurer's rights or interests under this Agreement
without limiting the rights or affecting the interests of the Owners as
otherwise set forth herein.
Section 13.6. Notices to the Certificate Insurer. All notices,
statements, reports, certificates or opinions required by this Agreement to be
sent to any other party hereto or to any of the Owners shall also be sent to the
Certificate Insurer.
Section 13.7. Third-Party Beneficiary. Subject to the provisions
below, the Certificate Insurer is a third party beneficiary of each provision of
this Agreement that creates a right of or benefit to the Certificate Insurer.
Any right conferred to the Certificate Insurer shall not arise until the
issuance by the Certificate Insurer of the Certificate Insurance Policy and
shall be suspended during any Certificate Insurer Default described in clause
(a) of the definition thereof (except that subrogation rights which have
previously arisen shall not be so suspended). During the period of any such
suspension, such rights shall vest in the Owners of the Class A Certificates,
and may be exercised by the Owners of a majority in Percentage Interest of each
Class of Class A Certificates then Outstanding or, if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding.
[Except for these words (and the accompanying punctuation) the rest
of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the Seller, the Master Servicer, the Transferor
and the Trustee have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
ACCESS FINANCIAL LENDING CORP.,
as Seller
By:___________________________________________
Name:
Title:
ACCESS FINANCIAL LENDING CORP.,
as Master Servicer
By:___________________________________________
Name:
Title:
ACCESS FINANCIAL RECEIVABLES CORP.,
as Transferor
By:___________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:___________________________________________
Name:
Title:
[Pooling and Servicing Agreement]
<PAGE>
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the 21st day of November, 1996, before me personally came Leslie
Zejdlik Foster, to me known, who, being by me duly sworn did depose and say that
her office is located at 400 Highway 169 South, Suite 400, St. Louis Park,
Minnesota 55426-0365, that she is the President of Access Financial Lending
Corp., a Delaware corporation which is described in and which executed the above
instrument; and that she signed her name thereto by order of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
________________________________________
Notary Public
[Pooling and Servicing Agreement]
<PAGE>
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the 21st day of November, 1996, before me personally came Leslie
Zejdlik Foster, to me known, who, being by me duly sworn did depose and say that
her office is located at 400 Highway 169 South, Suite 410, St. Louis Park,
Minnesota 55426-0365, that she is the President of Access Financial Receivables
Corp., a Delaware corporation which is described in and which executed the above
instrument; and that she signed her name thereto by order of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
________________________________________
Notary Public
[Pooling and Servicing Agreement]
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 21st day of November 1996, before me personally came John
Mynttinen, to me known, who, being by me duly sworn did depose and say that his
office is located at 450 West 33rd Street, 10th Floor, New York, NY 10001; that
he is a Second Vice President of The Chase Manhattan Bank, the New York banking
corporation described in and that executed the above instrument as Trustee; and
that he signed his name thereto by order of the Board of Directors of said New
York banking corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
________________________________________
Notary Public
[Pooling and Servicing Agreement]
<PAGE>
EXHIBIT A-1
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-1 GROUP I
(Variable Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-1-1 November 21, 1996
-----------------
Date
$32,500,000 October 18, 2011 003916 AU 7
- --------------- ---------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement or by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or a Sub-Servicer of a deed in
lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policy relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-1 Group I Certificates on
November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $32,500,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-1 Group I Certificates. The Class A
Certificates have been tranched into five "sequential pay" Classes, such that
the Class A-5 Group I Certificates are entitled to receive no principal
distributions until the Class A-4 Principal Balance has been reduced to zero,
the Class A-4 Group I Certificates are entitled to receive no principal
distributions until the Class A-3 Principal Balance has been reduced to zero,
the Class A-3 Group I Certificates are entitled to receive no principal
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distributions until the Class A-2 Principal Balance has been reduced to zero and
the Class A-2 Group I Certificates are entitled to receive no principal
distributions until the Class A-1 Principal Balance has been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-1 Group I, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7
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Group III Certificates (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
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Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-1 Group I Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-1 Group I Certificate by
$32,500,000.
The Class A-1 Distribution Amount for any Payment Date will be an
amount equal to the Class A-1 Interest Distribution Amount for such Payment
Date, the Class A-1 Principal Distribution for such Payment Date, the Class A-1
Interest Carry-Forward Amount for such Payment Date and the Class A-1 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-1 Distribution Amount will be distributed to the Owners of
the Class A-1 Group I Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-1 Group I Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-1 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
5
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
6
<PAGE>
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-1 Group I Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
7
<PAGE>
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-1 Group I Certificates are exchangeable
for new Class A-1 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-2
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
6.250% MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-2 GROUP I
(6.250% Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-2-1 November 21, 1996
-----------------
Date
$10,696,000 October 18, 2011 003916 AV 5
- --------------- ---------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among the Access Financial Receivables Corp.,
as transferor (the "Transferor"), Access Financial Lending Corp., as seller and
as master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement or by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or a Sub-Servicer of a deed in
lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-2 Group I Certificates on
November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $10,696,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-2 Group I Certificates. The Class A
Certificates have been tranched into five "sequential pay" Classes, such that
the Class A-5 Group I Certificates are entitled to receive no principal
distributions until the Class A-4 Principal Balance has been reduced to zero,
the Class A-4 Group I Certificates are entitled to receive no principal
distributions until the Class A-3 Principal Balance has been reduced to zero,
the Class A-3 Group I Certificates are entitled to receive no principal
2
<PAGE>
distributions until the Class A-2 Principal Balance has been reduced to zero and
the Class A-2 Group I Certificates are entitled to receive no principal
distributions until the Class A-1 Principal Balance has been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-2 Group I, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
3
<PAGE>
III Certificates (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
4
<PAGE>
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-2 Group I Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-2 Group I Certificate by
$10,696,000.
The Class A-2 Distribution Amount for any Payment Date will be an
amount equal to the Class A-2 Interest Distribution Amount for such Payment
Date, the Class A-2 Principal Distribution for such Payment Date, the Class A-2
Interest Carry-Forward Amount for such Payment Date and the Class A-2 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-2 Distribution Amount will be distributed to the Owners of
the Class A-2 Group I Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-2 Group I Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-2 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
5
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
6
<PAGE>
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-2 Group I Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
7
<PAGE>
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-2 Group I Certificates are exchangeable
for new Class A-2 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-3
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
6.450% MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-3 GROUP I
(6.450% Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-3-1 November 21, 1996
-----------------
Date
$17,700,000 October 18, 2011 003916 AW 3
- -------------- ---------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement or by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or a Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or a Sub-Servicer of a deed in
lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-3 Group I Certificates on
November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $17,700,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-3 Group I Certificates. The Class A
Certificates have been tranched into five "sequential pay" Classes, such that
the Class A-5 Group I Certificates are entitled to receive no principal
distributions until the Class A-4 Principal Balance has been reduced to zero,
the Class A-4 Group I Certificates are entitled to receive no principal
distributions until the Class A-3 Principal Balance has been reduced to zero,
the Class A-3 Group I Certificates are entitled to receive no principal
2
<PAGE>
distributions until the Class A-2 Principal Balance has been reduced to zero and
the Class A-2 Group I Certificates are entitled to receive no principal
distributions until the Class A-1 Principal Balance has been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-3 Group I, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
3
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III Certificates (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
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<PAGE>
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-3 Group I Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-3 Group I Certificate by
$17,700,000.
The Class A-3 Distribution Amount for any Payment Date will be an
amount equal to the Class A-1 Interest Distribution Amount for such Payment
Date, the Class A-3 Principal Distribution for such Payment Date, the Class A-3
Interest Carry-Forward Amount for such Payment Date and the Class A-3 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-3 Distribution Amount will be distributed to the Owners of
the Class A-3 Group I Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-3 Group I Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-3 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
5
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
6
<PAGE>
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-3 Group I Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
7
<PAGE>
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-3 Group I Certificates are exchangeable
for new Class A-3 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-4
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
6.775% MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-4 GROUP I
(6.775% Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-4-1 November 21, 1996
-----------------
Date
$18,500,000 March 18, 2020 003916 AX 1
- --------------- -------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-4 Group I Certificates on
November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $18,500,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-4 Group I Certificates. The Class A
Certificates have been tranched into five "sequential pay" Classes, such that
the Class A-5 Group I Certificates are entitled to receive no principal
distributions until the Class A-4 Principal Balance has been reduced to zero,
the Class A-4 Group I Certificates are entitled to receive no principal
distributions until the Class A-3 Principal Balance has been reduced to zero,
the Class A-3 Group I Certificates are entitled to receive no principal
2
<PAGE>
distributions until the Class A-2 Principal Balance has been reduced to zero and
the Class A-2 Group I Certificates are entitled to receive no principal
distributions until the Class A-1 Principal Balance has been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-4 Group I, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
3
<PAGE>
III Certificates (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
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<PAGE>
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-4 Group I Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-4 Group I Certificate by
$18,500,000.
The Class A-4 Distribution Amount for any Payment Date will be an
amount equal to the Class A-4 Interest Distribution Amount for such Payment
Date, the Class A-4 Principal Distribution for such Payment Date, the Class A-4
Interest Carry-Forward Amount for such Payment Date and the Class A-4 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-4 Distribution Amount will be distributed to the Owners of
the Class A-4 Group I Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-4 Group I Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-4 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
5
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
6
<PAGE>
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-4 Group I Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
7
<PAGE>
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-4 Group I Certificates are exchangeable
for new Class A-4 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-5
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
7.150% MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-5 GROUP I
(7.150% Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-5-1 November 21, 1996
-----------------
Date
$15,017,000 November 18, 2026 003916 AY 9
- ----------------- ----------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-5 Group I Certificates on
November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $15,017,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-5 Group I Certificates. The Class A
Certificates have been tranched into five "sequential pay" Classes, such that
the Class A-5 Group I Certificates are entitled to receive no principal
distributions until the Class A-4 Principal Balance has been reduced to zero,
the Class A-4 Group I Certificates are entitled to receive no principal
distributions until the Class A-3 Principal Balance has been reduced to zero,
the Class A-3 Group I Certificates are entitled to receive no principal
2
<PAGE>
distributions until the Class A-2 Principal Balance has been reduced to zero and
the Class A-2 Group I Certificates are entitled to receive no principal
distributions until the Class A-1 Principal Balance has been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-5 Group I, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates,
3
<PAGE>
the Class A-6 Group II Certificates, the Class A-7 Group III Certificates
(collectively, the "Class A Certificates"), the Class B Certificates, the Class
B-S Certificates and the Residual Certificates are collectively referred to
herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
4
<PAGE>
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-5 Group I Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-5 Group I Certificate by
$15,017,000.
The Class A-1 Distribution Amount for any Payment Date will be an
amount equal to the Class A-5 Interest Distribution Amount for such Payment
Date, the Class A-5 Principal Distribution for such Payment Date, the Class A-5
Interest Carry-Forward Amount for such Payment Date and the Class A-5 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-5 Distribution Amount will be distributed to the Owners of
the Class A-5 Group I Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-5 Group I Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-5 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
5
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
6
<PAGE>
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-5 Group I Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
7
<PAGE>
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-5 Group I Certificates are exchangeable
for new Class A-5 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-6
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-6 GROUP II
(Variable Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-6-1 November 21, 1996
-----------------
Date
$96,304,000 November 18, 2026 003916 AZ 6
- --------------- ----------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-6 Group II Certificates
on November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $96,304,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-6 Group II Certificates.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
2
<PAGE>
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4 Mortgage Loan
Pass-Through Certificates, Class A-6 Group II, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
III Certificates, (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
3
<PAGE>
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and the Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-6 Group II Certificate as of
any date of determination will be equal to the percentage obtained by dividing
the Original Principal Amount set forth on such Class A-6 Group II Certificate
4
<PAGE>
by $96,304,000.
The Class A-6 Distribution Amount for any Payment Date will be an
amount equal to the Class A-6 Interest Distribution Amount for such Payment
Date, the Class A-6 Principal Distribution for such Payment Date, the Class A-6
Interest Carry-Forward Amount for such Payment Date and the Class A-6 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-6 Distribution Amount will be distributed to the Owners of
the Class A-6 Group II Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-6 Group II Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-6 Group II Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
5
<PAGE>
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
6
<PAGE>
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-6 Group II Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-6 Group II Certificates are exchangeable
for new Class A-6 Group II Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
7
<PAGE>
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT A-7
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-7 GROUP II
(Variable Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-7-1 November 21, 1996
-----------------
Date
$49,048,000 November 18, 2026 003916 BA 0
- --------------- ----------------- -----------
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-7 Group III Certificates
on November 21, 1996 (the "Startup Day"), which aggregate amount on November 21,
1996 was $49,048,000. The Owner hereof is entitled to principal payments on each
Payment Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-7 Group III Certificates.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
2
<PAGE>
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4 Mortgage Loan
Pass-Through Certificates, Class A-7 Group III, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
III Certificates, (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds. In addition,
Financial Security Assurance, Inc., as Certificate Insurer, is required pursuant
to the Certificate Insurance Policy to make available to the Trustee on each
Payment Date 100% of the amount required to be distributed to the Owners of each
3
<PAGE>
Class of Class A Certificates on each Payment Date.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing December 18, 1996, the Owners of the Class A-1 Group I
Certificates, the Class A-6 Group II Certificates and the Class A-7 Group III
Certificates, as of the close of business on the Business Day immediately
preceding such Payment Date occurs (for the Class A-1 Group I Certificates, the
Class A-6 Group II Certificates and the Class A-7 Group III Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount,
the Class A-6 Distribution Amount or the Class A-7 Distribution Amount,
respectively, relating to such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates, by wire transfer or
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class A-2
Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, Class A-6 Group II Certificate and
Class A-7 Group III Certificate will be entitled to receive such Owner's
Percentage Interest in the amounts due on such Payment Date to the Owners of the
Class A-1 Group I Certificate, Class A-2 Group I Certificate, Class A-3 Group I
Certificate, the Class A-4 Group I Certificate, the Class A-5 Group I
Certificate, the Class A-6 Group II Certificate and Class A-7 Group III
Certificate, respectively.
The Percentage Interest of each Class A-7 Group III Certificate as
of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-7 Group III
4
<PAGE>
Certificate by $49,048,000.
The Class A-7 Distribution Amount for any Payment Date will be an
amount equal to the Class A-7 Interest Distribution Amount for such Payment
Date, the Class A-7 Principal Distribution for such Payment Date, the Class A-7
Interest Carry-Forward Amount for such Payment Date and the Class A-7 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy, Financial Security
Assurance, Inc. (the "Certificate Insurer") is required, to the extent of any
insufficiency in the related Available Funds, to make Insured Payments available
to the Trustee necessary to deposit the full amount of the related Insured
Distribution Amount to the Distribution Account (other than amounts to be paid
to the Certificate Insurer) on each Payment Date. Pursuant to the Pooling and
Servicing Agreement, from amounts on deposit in the related Distribution
Account, the Class A-7 Distribution Amount will be distributed to the Owners of
the Class A-7 Group III Certificates. The Certificate Insurer will be subrogated
to the rights of the Owners of the Class A-7 Group III Certificates with respect
to the related Insured Payments.
The Owner of this Certificate is required to notify the Trustee
promptly in writing upon the receipt of a court order pursuant to which any
amount received by the Owners of the Class A-7 Group III Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
5
<PAGE>
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
6
<PAGE>
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by
any Class of Class A Certificates, or if there are no Class A Certificates then
Outstanding, by such Percentage Interest represented by the Class B Certificates
then Outstanding, upon compliance with the requirements set forth in the Pooling
and Servicing Agreement, have the right to exercise any trust or power set forth
in the Pooling and Servicing Agreement with respect to the Certificates or the
Trust Estate.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-7 Group III Certificates are issuable only as registered
Certificates in denominations of $1,000 original principal amount and integral
multiples of $1,000 in excess thereof (except for one odd Certificate). As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-7 Group III Certificates are exchangeable
for new Class A-7 Group III Certificates of authorized denominations evidencing
the same aggregate principal amount.
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 payable in connection therewith.
7
<PAGE>
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
9
<PAGE>
EXHIBIT B-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS B
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee relating to the Mortgage
Loans held by the Trust.)
No.: B-1 November 21, 1996
-----------------
Date
$203.99 November 18, 2026
- ----------- -----------------
Original Principal Final Scheduled
Amount Payment Date
ACCESS FINANCIAL RECEIVABLES CORP.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp. (the "Seller"), a Delaware corporation, and held in trust by The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), on
behalf of Access Financial Mortgage Loan Trust 1996-4 (the "Trust") pursuant to
that certain Pooling and Servicing Agreement dated as of November 1, 1996 (the
"Pooling and Servicing Agreement") among Access Financial Receivables Corp., as
transferor (the "Transferor"), Access Financial Lending Corp., as seller and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
2
<PAGE>
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class B Certificates, and issued under and subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Issued under the
Pooling and Servicing Agreement are Certificates designated as Access Financial
Mortgage Loan Trust 1996-4, Mortgage Loan Pass-Through Certificates, Class A-1
Group I (the "Class A-1 Group I Certificates"), Class A-2 Group I (the "Class
A-2 Group I Certificates"), Class A-3 Group I (the "Class A-3 Group I
Certificates"), Class A-4 Group I (the "Class A-4 Group I Certificates"), Class
A-5 Group I (the "Class A-5 Group I Certificates"), Class A-6 Group II (the
"Class A-6 Group II Certificates"), Class A-7 Group III (the "Class A-7 Group
III Certificates"), Class B (the "Class B Certificates"), Class B-S (the "Class
B-S Certificates"), and Class RL and Class RU (the "Residual Certificates"). The
Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the Class
A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class A-5
Group I Certificates, the Class A-6 Group II Certificates, the Class A-7 Group
III Certificates (collectively, the "Class A Certificates"), the Class B
Certificates, the Class B-S Certificates and the Residual Certificates are
collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing Agreement, each
Class of Certificates has a specified priority to the collections on the related
Pool of Mortgage Loans which comprise the related Available Funds.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing December 18, 1996, the Owners of the Class B Certificates as
of the close of business on the first Business Day of the calendar month in
which such Payment Date occurs (the "Record Date") will be entitled to receive
the Class B Distribution Amount. Distributions will be made in immediately
available funds to Owners of Certificates, by wire transfer or otherwise, to the
account of an Owner at a domestic bank or other entity having appropriate
3
<PAGE>
facilities therefor, if such Owner has so notified the Trustee, or by check
mailed to the address of the person entitled thereto as it appears on the
Register.
Each Owner of record of a Class B Certificate will be entitled to
receive such Owner's Percentage Interest in the Class B Distribution Amount due
on such Payment Date to the Owners of the Class B Certificates. The Class B
Distribution Amount as of any date of determination will be determined as set
forth in the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
4
<PAGE>
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement, the transfer of
this Certificate is registrable in the Register upon surrender of this
Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
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<PAGE>
Pooling and Servicing Agreement.
The Class B Certificates are issuable only as registered
Certificates in minimum denominations of $100,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Class B
Certificate). As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class B Certificates are exchangeable for
new Class B Certificates evidencing the same Percentage Interest as the Class B
Certificates exchanged.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee nor any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Title: ______________________
Dated: November 21, 1996
7
<PAGE>
EXHIBIT B-2
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN (X) A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE AND (Y) CERTAIN OTHER PROPERTY
HELD IN THE SUPPLEMENTAL INTEREST PAYMENT ACCOUNT.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL
SAVINGS AND LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
TRANSFER OF THIS CLASS B-S CERTIFICATE IS RESTRICTED AS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT.
SUPPLEMENTAL INTEREST PAYMENT ACCOUNT
RELATING TO
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
CLASS B-S
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any Originator or any of their subsidiaries and affiliates. This Certificate
represents a fractional ownership interest in certain excess moneys of the
Supplemental Interest Payment Account described herein.
No: B-S-1 Date: November 21, 1996
Percentage Interest: 100% November 18, 2026
-----------------
Final Scheduled
Payment Date
ACCESS FINANCIAL RECEIVABLES CORP.
- --------------------------------------------------------------------------------
Registered Owner
<PAGE>
The registered Owner named above is the registered Owner of a
fractional interest in certain excess moneys of the Supplemental Interest
Payment Account pursuant to that certain Pooling and Servicing Agreement dated
as of November 1, 1996 (the "Pooling and Servicing Agreement") among Access
Financial Receivables Corp., as transferor (the "Transferor"), the Trustee and
Access Financial Lending Corp., as Master Servicer (the "Master Servicer") and
as Seller.
This Certificate is one of a Class of duly authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Class B-S
Certificates (the "Class B-S Certificates") and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date"),
commencing December 18, 1996, to the persons in whose names the Class B-S
Certificates are registered at the close of business on the last business day of
the calendar month immediately preceding the calendar month in which such
Payment Date occurs (the "Record Date"), the Trustee will distribute to each
Owner of the Class B-S Certificates such Owner's Percentage Interest multiplied
by any amounts then available to be distributed to the Owners of the Class B-S
Certificates. Distributions will be made in immediately available funds, by wire
transfer or otherwise, to the account of such Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee at least five business days prior to the related record date, or by
check mailed to the address of the person entitled thereto as it appears on the
Register.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any person from a distribution to any Owner
2
<PAGE>
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointments as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer or any of their subsidiaries and affiliates and are not insured or
guaranteed by the Federal Deposit Insurance Corporation, the Government National
Mortgage Association, or any other governmental agency. This Certificate is
limited in right of payment to certain collections and recoveries relating to
the Mortgage Loans, all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust Estate or (b)
the disposition of all property acquired in respect of any Mortgage Loan
remaining in the Trust Estate or (ii) at any time when a Qualified Liquidation
of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
3
<PAGE>
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but no fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee shall give written notice of termination of the Pooling
and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest in the Trust Estate will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class B-S Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class B-S Certificates are exchangeable
4
<PAGE>
for new Class B-S Certificates evidencing the same Percentage Interest as the
Class B-S Certificates exchanged.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:______________________
Name:
Title:
Trustee's Authentication
THE CHASE MANHATTAN BANK, as Trustee
By:___________________________________
Name:
Title:
6
<PAGE>
EXHIBIT C-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G and 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS RL CERTIFICATE IS RESTRICTED AS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS RL CERTIFICATE
MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION 860E(e)(5) OF
THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN CERTAIN TAXABLE
INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR
PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS, OR ANY ORGANIZATION
(OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL INCOME TAX
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME. NO
TRANSFER OF THIS CLASS RL CERTIFICATE WILL BE REGISTERED BY THE TRUSTEE UNLESS
THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER
THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION AND IS
NOT ACQUIRING THE CLASS RL CERTIFICATE FOR THE ACCOUNT OF A DISQUALIFIED
ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH PROPOSED
TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE
TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN AGENT
ACTING FOR THE TRANSFEREE. A PASS-THRU ENTITY THAT HOLDS THIS CLASS RL
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
<PAGE>
THIS CERTIFICATE OWNED THROUGH SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED
ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THRU" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER
IT OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS RL
Representing Certain Interests Relating to a Pool of
Mortgage Loans Formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional residual ownership interest in the Lower-Tier REMIC described in
the Pooling and Servicing Agreement.)
No: RL-1 Date: November 21, 1996
Percentage Interest: 100% November 18, 2026
Final Scheduled
Payment Date
ACCESS FINANCIAL RECEIVABLES CORP.
- --------------------------------------------------------------------------------
Registered Owner
2
<PAGE>
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class RL (the "Class RL Certificates"), and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound. Issued under the Pooling and Servicing Agreement are Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-1 Group I (the "Class A-1 Group I
Certificates"), Class A-2 Group I (the "Class A-2 Group I Certificates"), Class
A-3 Group I (the "Class A-3 Group I Certificates"), Class A-4 Group I (the
"Class A-4 Group I Certificates"), Class A-5 Group I (the "Class A-5 Group I
Certificates"), Class A-6 Group II (the "Class A-6 Group II Certificates"),
Class A-7 Group III (the "Class A-7 Group III Certificates"), Class B (the
"Class B Certificates"), Class B-S (the "Class B-S Certificates"), and Class RL
and Class RU (the "Residual Certificates"). The Class A-1 Group I Certificates,
the Class A-2 Group I Certificates, the Class A-3 Group I Certificates, the
Class A-4 Group I Certificates, the Class A-5 Group I Certificates, the Class
A-6 Group II Certificates, the Class A-7 Group III Certificates (collectively,
the "Class A Certificates"), the Class B Certificates, the Class B-S
Certificates and the Residual Certificates are collectively referred to herein
as the "Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date"), commencing December 18, 1996, to the Owners of the Class RL Certificates
as of the close of business on the first Business Day of the calendar month in
which such Payment Date occurs (the "Record Date"), the Trustee will distribute
to each Owner of the Class RL Certificates such Owner's Percentage Interest
multiplied by the amounts then available to be distributed to the Owners of the
Class RL Certificates. No significant distributions are anticipated to be made.
3
<PAGE>
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
4
<PAGE>
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee shall give written notice of termination of the Pooling
and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form set forth in the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest will be issued to the designated transferee or
transferees.
5
<PAGE>
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class RL Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class RL Certificates are exchangeable
for new Class RL Certificates evidencing the same Percentage Interest as the
Class RL Certificates exchanged.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:___________________________
Title:_____________________
Trustee's Authentication
THE CHASE MANHATTAN BANK, as Trustee
By:__________________________
Title:_______________________
Dated: November 21, 1996
7
<PAGE>
EXHIBIT C-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G and 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS RU CERTIFICATE IS RESTRICTED AS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS RU CERTIFICATE
MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION 860E(e)(5) OF
THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN CERTAIN TAXABLE
INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING ELECTRIC ENERGY OR
PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS, OR ANY ORGANIZATION
(OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL INCOME TAX
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS INCOME. NO
TRANSFER OF THIS CLASS RU CERTIFICATE WILL BE REGISTERED BY THE TRUSTEE UNLESS
THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER
THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION AND IS
NOT ACQUIRING THE CLASS RU CERTIFICATE FOR THE ACCOUNT OF A DISQUALIFIED
ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH PROPOSED
TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE
TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN AGENT
ACTING FOR THE TRANSFEREE. A PASS-THRU ENTITY THAT HOLDS THIS CLASS RU
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
<PAGE>
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
THIS CERTIFICATE OWNED THROUGH SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED
ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THRU" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER
IT OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
ACCESS FINANCIAL MORTGAGE LOAN TRUST 1996-4
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS RU
Representing Certain Interests Relating to a Pool of
Mortgage Loans Formed by
ACCESS FINANCIAL LENDING CORP.
as Seller and Master Servicer
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by
Access Financial Lending Corp., The Chase Manhattan Bank, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional residual ownership interest in the Upper-Tier REMIC described in
the Pooling and Servicing Agreement.)
No: RU-1 Date: November 21, 1996
Percentage Interest: 100% November 18, 2026
Final Scheduled
Payment Date
ACCESS FINANCIAL RECEIVABLES CORP.
- --------------------------------------------------------------------------------
Registered Owner
2
<PAGE>
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class RU (the "Class RU Certificates"), and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound. Issued under the Pooling and Servicing Agreement are Certificates
designated as Access Financial Mortgage Loan Trust 1996-4, Mortgage Loan
Pass-Through Certificates, Class A-1 Group I (the "Class A-1 Group I
Certificates"), Class A-2 Group I (the "Class A-2 Group I Certificates"), Class
A-3 Group I (the "Class A-3 Group I Certificates"), Class A-4 Group I (the
"Class A-4 Group I Certificates"), Class A-5 Group I (the "Class A-5 Group I
Certificates"), Class A-6 Group II (the "Class A-6 Group II Certificates"),
Class A-7 Group III (the "Class A-7 Group III Certificates"), Class B (the
"Class B Certificates"), Class B-S (the "Class B-S Certificates"), and Class RL
and Class RU (the "Residual Certificates"). The Class A-1 Group I Certificates,
the Class A-2 Group I Certificates, the Class A-3 Group I Certificates, the
Class A-4 Group I Certificates, the Class A-5 Group I Certificates, the Class
A-6 Group II Certificates, the Class A-7 Group III Certificates (collectively,
the "Class A Certificates"), the Class B Certificates, the Class B-S
Certificates and the Residual Certificates are collectively referred to herein
as the "Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 18th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date"), commencing December 18, 1996, to the Owners of the Class RU Certificates
as of the close of business on the first Business Day of the calendar month
immediately preceding the calendar month in which such Payment Date occurs (the
"Record Date"), the Trustee will distribute to each Owner of the Class RU
Certificates such Owner's Percentage Interest multiplied by the amounts then
available to be distributed to the Owners of the Class RU Certificates. No
3
<PAGE>
significant distributions are anticipated to be made.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant to the
Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling and
Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointment as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Access Financial Lending Corp., The Chase Manhattan Bank, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding, judicial
or otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
4
<PAGE>
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates of all amounts held by the Trustee and required to be paid
to such Owners pursuant to the Pooling and Servicing Agreement upon the later to
occur of (a) the final payment or other liquidation (or any advance made with
respect thereto) of the last Mortgage Loan in the Trust Estate or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust Estate or (ii) at any time when a Qualified Liquidation of the
Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller may, at
its option, purchase from the Trust all (but not fewer than all) remaining
Mortgage Loans and other property then constituting the Trust Estate, and
thereby effect early retirement of the Certificates, on any Remittance Date when
the aggregate outstanding Principal Balance of the Mortgage Loans is ten percent
or less of the Original Pool Principal Balance. If the Seller declines to
exercise such option within ninety days following such date, the Trustee shall
solicit bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee shall give written notice of termination of the Pooling
and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form set forth in the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
5
<PAGE>
like Percentage Interest will be issued to the designated transferee or
transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class RU Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class RU Certificates are exchangeable
for new Class RU Certificates evidencing the same Percentage Interest as the
Class RU Certificates exchanged.
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 payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
THE CHASE MANHATTAN BANK, as
Trustee
By:___________________________
Title:_____________________
Trustee's Authentication
THE CHASE MANHATTAN BANK, as Trustee
By:__________________________
Title:_______________________
Dated: November 21, 1996
7
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
The Chase Manhattan Bank
Global Trust Services
450 West 33rd Street, 10th Floor
New York, New York 10001
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0365
Attention: Operations
Ladies and Gentlemen:
The undersigned (the "Transferee") has agreed to purchase from
__________________________________ (the "Transferor") the following:
Class Number
----- ------
_____ ______
_____ ______
_____ ______
_____ ______
_____ ______
A. Rule 144A "Qualified Institutional Buyers" should complete this
section
I. The Transferee is (check one):
_____ (i) An insurance company, as defined in Section 2(13) of
the Securities Act of 1933, as amended (the "Securities
Act"), (ii) an investment company registered under the
Investment Company Act of 1940, as amended (the
"Investment Company Act"), (iii) a business development
company as defined in Section 2(a)(48) of the Securities
Act, (iv) 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, as amended, (v) a plan established and maintained
by a state, its political subdivisions, or any agency or
<PAGE>
instrumentality of a state or its political
subdivisions, for the benefit of its employees, (vi) an
employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), (vii) a business development company
as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940, as amended, (viii) an organization
described in Section 501(c)(3) of the Internal Revenue
Code, corporation (other than a bank as defined in
Section 3(a)(2) of the Securities Act or a savings and
loan association or other institution referenced in
Section 3(a)(2) of the Securities Act or a foreign bank
or savings and loan association or equivalent
institution), partnership, or Massachusetts or similar
business trust; or (ix) an investment advisor registered
under the Investment Advisors Act of 1940, as amended,
which, for each of (i) through (ix), owns and invests on
a discretionary basis at least $100 million in
securities other than securities of issuers affiliated
with the Transferee, securities issued or guaranteed by
the United States or a person controlled or supervised
by and acting as an instrumentality of the government of
the United States pursuant to authority granted by the
Congress of the United States, bank deposit notes and
certificates of deposit, loan participations, repurchase
agreements, securities owned but subject to a repurchase
agreement, and currency, interest rate and commodity
swaps (collectively, "Excluded Securities");
_____ a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") that in the aggregate owns and invests
on a discretionary basis at least $10 million of
securities other than Excluded Securities and securities
constituting the whole or part of an unsold allotment
to, or subscription by, Transferee as a participant in a
public offering;
2
<PAGE>
_____ an investment company registered under the Investment
Company Act that is part of a family of investment
companies (as defined in Rule 144A of the Securities and
Exchange Commission) which own in the aggregate at least
$100 million in securities other than Excluded
Securities and securities of issuers that are part of
such family of investment companies;
_____ an entity, all of the equity owners of which are
entities described in this Paragraph A(I);
_____ a bank as defined in Section 3(a)(2) of the Securities
Act, any savings and loan association or other
institution as referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or savings and loan
association or equivalent institution that in the
aggregate owns and invests on a discretionary basis at
least $100 million in securities other than Excluded
Securities and has an audited net worth of at least $25
million as demonstrated in its latest annual financial
statements, as of a date not more than 16 months
preceding the date of transfer of the Certificates to
the Transferee in the case of a U.S. Bank or savings and
loan association, and not more than 18 months preceding
such date in the case of a foreign bank or savings
association or equivalent institution.
II. The Transferee is acquiring such Certificates solely for its own
account, for the account of one or more others, all of which are "Qualified
Institutional Buyers" within the meaning of Rule 144A, or in its capacity as a
dealer registered pursuant to Section 15 of the Exchange Act acting in a
riskless principal transaction on behalf of a "Qualified Institutional Buyer".
The Transferee is not acquiring such Certificates with a view to or for the
resale, distribution, subdivision or fractionalization thereof which would
require registration of the Certificates under the Securities Act.
B. "Accredited Investors" should complete this Section
I. The Transferee is (check one):
3
<PAGE>
_____ a bank within the meaning of Section 3(a)(2) of the
Securities Act;
_____ a savings and loan association or other institution
defined in Section 3(a)(5) of the Securities Act;
_____ a broker or dealer registered pursuant to the Exchange
Act;
_____ an insurance company within the meaning of Section 2(13)
of the Securities Act;
_____ an investment company registered under the Investment
Company Act;
_____ an employee benefit plan within the meaning of Title I
of ERISA, which has total assets in excess of
$5,000,000;
_____ another entity which is an "accredited investor" within
the meaning of paragraph _ (fill in) of subsection (a)
of Rule 501 of the Securities and Exchange Commission.
II. The Transferee is acquiring such Certificates solely for its own
account, for investment, and not with a view to or for the resale, distribution,
subdivision or fractionalization thereof which would require registration of the
Certificates under the Securities Act.
C. If the Transferee is unable to complete one of paragraph A(I) or
paragraph B(I) above and is not a designated PORTAL depository organization, the
Transferee must furnish an opinion in form and substance satisfactory to the
Trustee of counsel satisfactory to the Trustee to the effect that such purchase
will not violate any applicable federal or state securities laws.
D. The Transferee represents that either (a) it is not (i) an
employee benefit plan (as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(l) of the Internal
Revenue Code of 1986, or (iii) an entity whose underlying assets are deemed to
be assets of a plan described in (i) or (ii) above by reason so such plan's
investment in the entity (any such entity described in clauses (i) through
4
<PAGE>
(iii), a "Benefit Plan Entity")* or (b) it is an insurance company general
account and, pursuant to Section I of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60"), the acquisition and holding of the Class A Certificates
and, pursuant to Section III of PTCE 95-60, the servicing, management and
operation of the Trust are with respect to such Purchaser exempt form the
"prohibited transaction" provisions of ERISA and the Code or (c) if the
Purchaser is a Benefit Plan Entity, the following:
(i) the Purchaser is not a Benefit Plan Entity with respect to
an employee benefit plan sponsored by any member of the Restricted Group (as
defined in the Private Placement Memorandum);
(ii) either (A) the person who has discretionary authority or
renders investment advice to the Purchaser with respect to the investment of
plan assets in the Class A Certificates is not an Obligor (or an affiliate) with
respect to the Mortgage Loans (as defined in the Prospectus), or (B) the person
who has such discretionary authority or renders such investment advice is an
Obligor (or an affiliate) with respect to less than 5 percent of the
Receivables; and, immediately after the acquisition of the Class A Certificates,
no more than 25 percent of the assets of the Purchaser are invested in
certificates representing an interest in a trust containing assets sold or
serviced by the same entity; and
(iii) the purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D pursuant to the 1933 Act.
Very truly yours,
- --------
* Do not include option (b) or (c) for acquisitions or transfers of a
class of Certificates which has not been placed or underwritten by an entity
which has an Underwriter Exemption (as described in Prohibited Transaction Class
Exception 95-60) and do not include option (c) for acquisitions or transfers of
Certificates that (i) evidence rights and interests that are subordinated to the
rights and interests evidenced by other Certificates of the Trust, or (ii) occur
at any time during which the Certificates being acquired or transferred are not
rated in one of the top three rating categories of any rating agency that
satisfies the requirements of Prohibited Transaction Exemption 89-90 and that
(a) is rating the Certificates as of the date hereof and (b) has been requested
by the issuer of the Certificates to rate the Certificates.
5
<PAGE>
By:_________________________________
Title:______________________________
Dated:_____________________________
6
<PAGE>
EXHIBIT E
FORM OF RESIDUAL CERTIFICATE
TAX MATTERS TRANSFER CERTIFICATE
AFFIDAVIT PURSUANT TO SECTION
860(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of __________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" and
will not be a "disqualified organization" as of [date of transfer] (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other than
certain taxable instrumentalities), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas, or any
organization (other than a farmers' cooperative) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated business
income); (ii) it is not acquiring the Class RU [RL] Certificate for the account
of a disqualified organization; (iii) it consents to any amendment of the
Pooling and Servicing Agreement dated as of November 1, 1996 among Access
Financial Lending Corp., as Seller and Master Servicer, Access Financial
Receivables Corp., as the Transferor and The Chase Manhattan Bank, as Trustee
that shall be deemed necessary by the Trustee (upon advice of counsel) to
constitute a reasonable arrangement to ensure that the Class RU [RL]
Certificates will not be owned directly or indirectly by a disqualified
organization; and (iv) it will not transfer such Class RU [RL] Certificate
unless (a) it has received from the transferee an affidavit in substantially the
same form as this affidavit containing these same four representations and (b)
as of the time of the transfer, it does not have actual knowledge that such
<PAGE>
affidavit is false.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ____ day of __________, ____.
[NAME OF INVESTOR]
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 be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ____ day of __________, ____.
_________________________
NOTARY PUBLIC
COUNTY OF _______________
STATE OF ________________
My commission expires the ____ day of ____________, ____.
2
<PAGE>
EXHIBIT F
FORM OF MASTER SERVICER'S TRUST RECEIPT
To: The Chase Manhattan Bank
Global Trust Services
450 West 33rd Street, 10th Floor
New York, New York 10001
Date:
In connection with the administration of the mortgage loans serviced
by Access Financial Lending Corp. (the "Master Servicer") pursuant to a Pooling
and Servicing Agreement dated as of November 1, 1996 (the " Pooling and
Servicing Agreement") among the Master Servicer, you, as Trustee, Access
Financial Receivables Corp., as the Transferor, and Access Financial Lending
Corp., in its capacity as Seller, the Master Servicer hereby requests a release
of the File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The Master Servicer hereby certifies that all amounts
received in connection with the loan and required to be
remitted to the Trustee have been or will be remitted to the
Trustee pursuant to the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased pursuant to Section 3.2,
3.3 or 3.4(b) of the Pooling and Servicing
Agreement.
_____ 3. Mortgage Loan substituted.
(The Master Servicer hereby certifies that a Qualified
Replacement Mortgage has been or will be assigned and
delivered to you along with the related File pursuant to the
Pooling and Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
<PAGE>
The undersigned acknowledges that the above File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you, except (i) if the Mortgage Loan has been
paid in full, or repurchased or substituted by a Qualified Replacement Mortgage
(in which case the File will be retained by us permanently) or (ii) except if
the Mortgage Loan is being foreclosed (in which case the File will be returned
when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
ACCESS FINANCIAL LENDING CORP.
By______________________________
Name:_________________________
Title:________________________
The Trustee hereby acknowledges the above request.
The Chase Manhattan Bank
By:_________________________________________
Name:
Title:
2
<PAGE>
EXHIBIT G
[RESERVED]
<PAGE>
EXHIBIT H
FORM OF DELIVERY ORDER
November 21, 1996
The Chase Manhattan Bank, as Trustee
Global Trust Services
450 West 33rd Street, 10th Floor
New York, New York 10001
Attention: ______________
Dear Sirs:
Pursuant to Article IV of the Pooling and Servicing Agreement, dated
as of November 1, 1996 (the "Pooling and Servicing Agreement"), among Access
Financial Receivables Corp., as transferor (the "Transferor"), Access Financial
Lending Corp., as seller (the "Seller") and master servicer, and The Chase
Manhattan Bank, as trustee (the "Trustee"), the Seller HEREBY CERTIFIES that all
conditions precedent to the issuance of Access Financial Mortgage Loan Trust
1996-4 Mortgage Loan Pass-Through Certificates, Series 1996-4, Class A-1 Group
I, Class A-2 Group I, Class A-3 Group I, Class A-4 Group I, Class A-5 Group I,
Class A-6 Group II, Class B, Class B-S, Class RL and Class RU (the
"Certificates"), HAVE BEEN SATISFIED and HEREBY REQUESTS YOU TO AUTHENTICATE AND
DELIVER said Certificates, and to RELEASE said Certificates to the Seller
thereof, or otherwise upon their order.
Very truly yours,
ACCESS FINANCIAL LENDING
CORP.
By:________________________
Name:
Title:
<PAGE>
EXHIBIT I
[RESERVED]
<PAGE>
EXHIBIT J
FORM OF CERTIFICATE REGARDING PREPAID LOANS
I, _________________, _____________ of Access Financial Lending
Corp., a Delaware corporation, (the "Seller"), hereby certify that between the
"Cut-Off Date" (as defined in the Pooling and Servicing Agreement, dated as of
November 1, 1996, among Access Financial Lending Corp., as seller (the "Seller")
and master servicer, Access Financial Receivables Corp., as transferor (the
"Transferor"), and The Chase Manhattan Bank, as trustee (the "Trustee") and the
"Startup Day" the attached schedule of "Mortgage Loans" (each as defined in the
Pooling and Servicing Agreement) has been prepaid in full.
Dated: November 21, 1996
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT K
TRUSTEE'S ACKNOWLEDGEMENT OF RECEIPT
The Chase Manhattan Bank, a New York banking corporation, in its
capacity as trustee (the "Trustee") under that certain Pooling and Servicing
Agreement, dated as of November 1, 1996 (the "Pooling and Servicing Agreement"),
among Access Financial Receivables Corp., as transferor (the "Transferor"),
Access Financial Lending Corp., as seller (the "Seller") and master servicer,
and the Trustee, hereby acknowledges receipt of the items delivered to it by the
Seller with respect to the Mortgage Loans relating to Access Financial Mortgage
Loan Trust 1996-4 of the Pooling and Servicing Agreement.
The Mortgage Loan Schedule relating to Access Financial Mortgage
Loan Trust 1996-4 is attached to this Receipt.
The Trustee hereby additionally acknowledges that it shall review
such items as required by Section 3.4 of the Pooling and Servicing Agreement and
shall otherwise comply with Section 3.4 of the Pooling and Servicing Agreement
as required thereby.
THE CHASE MANHATTAN BANK, as
Trustee
By:_________________________________
Name:
Title:
Dated: November 21, 1996
<PAGE>
EXHIBIT L
FORM OF INTERIM TRUSTEE CERTIFICATION
[DATE]
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0365
Attention: Operations
Prudential Securities Incorporated
One New York Plaza, 15th Floor
New York, New York 10292-2015
Attention: Asset-Backed Finance Group
J.P. Morgan Securities Inc.
60 Wall Street, 18th Floor
New York, New York 10260-0060
Financial Security Assurance, Inc.
350 Park Avenue
New York, New York 10022
Re: Pooling and Servicing Agreement, dated as of November 1, 1996,
among Access Financial Receivables Corp., as transferor,
Access Financial Lending Corp., as seller and master servicer,
and The Chase Manhattan Bank, as trustee
Ladies and Gentlemen:
In accordance with Section 3.4 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
trustee (the "Trustee"), hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule relating to Access Financial Mortgage Loan Trust
1996-4 (except with respect to the Mortgage Loans, if any, listed in the
attached schedule), that:
(i) all documents required to be delivered to it are in the
Trustee's possession;
(ii) the Mortgage Note bears an original of an endorsement to the
Trustee purportedly from the original payee (or a set of
original endorsements evidencing a complete chain of title
from the original payee to the Trustee);
<PAGE>
(iii) such documents have been reviewed by it and relate to such
Mortgage Loan; and
(iv) based upon such review, the information set forth in items
(i)-(vi) of Section 3.4(a) of the Pooling and Servicing
Agreement as they relate to the Mortgage Loan Schedule
accurately reflects the information in the Mortgage Files.
The Trustee, based on its examination of the Mortgage Loan Files,
also hereby confirms that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (except as listed in the attached schedule), that:
(i) each Mortgage Note and Mortgage bears an original signature or
signatures purporting to be that of the person named as the
maker and mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the
Mortgage Note;
(iii) the assignment of Mortgage to the Trustee is in the form
required by this Agreement and bears a signature that purports
to be the signature of an authorized officer of the Servicer;
(iv) if intervening assignments are included in the Mortgage Loan
File, each such intervening assignment bears a signature that
purports to be the signature of the mortgagee/beneficiary
and/or the assignee;
(v) if either a title insurance policy or a preliminary title
report or a commitment to issue a title policy is delivered,
the address of the real property set forth in such policy,
report or commitment is identical the real property address
contained in the Mortgage;
(vi) if either a title insurance policy or a preliminary title
report or a commitment to issue a title policy is delivered,
such policy or written commitment is for an amount equal to
the original principal amount of the Note; and
(vii) it has received an original recorded Mortgage and assignment,
in each case, with evidence of recordation thereon or a copy
2
<PAGE>
thereof certified to be true and correct by the public
recording office in possession of such Mortgage and
assignment.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representation as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each such Mortgage File or any of the Mortgage Loans
identified on said Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used but not defined herein shall have
the respective meanings ascribed to them in the Pooling and Servicing Agreement.
The Chase Manhattan Bank
By:
Name:
Title:
3
<PAGE>
EXHIBIT M
FORM OF FINAL TRUSTEE CERTIFICATION
[DATE]
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0365
Attention: Operations
Prudential Securities Incorporated
One New York Plaza, 15th Floor
New York, New York 10292-2015
Attention: Asset-Backed Finance Group
J.P. Morgan Securities Inc.
60 Wall Street, 18th Floor
New York, New York 10260-0060
Financial Security Assurance, Inc.
350 Park Avenue
New York, New York 10022
Re: Pooling and Servicing Agreement, dated as of November 1, 1996,
among Access Financial Receivables Corp., as transferor,
Access Financial Lending Corp., as seller and master servicer,
and The Chase Manhattan Bank, as trustee
Ladies and Gentlemen:
In accordance with Section 3.4 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
trustee (the "Trustee"), hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule relating to Access Financial Mortgage Loan Trust
1996-4 (except with respect to the Mortgage Loans, if any, listed in the
attached schedule), that:
(i) all documents required to be delivered to it are in the
Trustee's possession;
(ii) the Mortgage Note bears an original of an endorsement to the
Trustee purportedly from the original payee (or a set of
original endorsements evidencing a complete chain of title
from the original payee to the Trustee);
<PAGE>
(iii) such documents have been reviewed by it and relate to such
Mortgage Loan; and
(iv) based upon such review, the information set forth in items
(i)-(vi) of Section 3.4(a) of the Pooling and Servicing
Agreement as they relate to the Mortgage Loan Schedule
accurately reflects the information in the Mortgage Files.
The Trustee, based on its examination of the Mortgage Loan Files,
also hereby confirms that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (except as listed in the attached schedule), that:
(i) each Mortgage Note and Mortgage bears an original signature or
signatures purporting to be that of the person named as the
maker and mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the
Mortgage Note;
(iii) the assignment of Mortgage to the Trustee is in the form
required by this Agreement and bears a signature that purports
to be the signature of an authorized officer of the Servicer;
(iv) if intervening assignments are included in the Mortgage Loan
File, each such intervening assignment bears a signature that
purports to be the signature of the mortgagee/beneficiary
and/or the assignee;
(v) if either a title insurance policy or a preliminary title
report or a commitment to issue a title policy is delivered,
the address of the real property set forth in such policy,
report or commitment is identical the real property address
contained in the Mortgage;
(vi) if either a title insurance policy or a preliminary title
report or a commitment to issue a title policy is delivered,
such policy or written commitment is for an amount equal to
the original principal amount of the Note; and
(vii) it has received an original recorded Mortgage and assignment,
in each case, with evidence of recordation thereon or a copy
2
<PAGE>
thereof certified to be true and correct by the public
recording office in possession of such Mortgage and
assignment.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representation as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each such Mortgage File or any of the Mortgage Loans
identified on said Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used but not defined herein shall have
the respective meanings ascribed to them in the Pooling and Servicing Agreement.
The Chase Manhattan Bank
By:
Name:
Title:
3
<PAGE>
EXHIBIT N
AUCTION PROCEDURES
I. Pre-Auction Process
a. If by the ninetieth day following the Seller's optional
termination date pursuant to Section 9.02 of the Pooling and
Servicing Agreement, the Seller has not exercised such option,
then a plan of complete liquidation with respect to the
Mortgage Loans will be adopted by the Trustee in order to
satisfy REMIC requirements, and the Trustee will notify
Prudential Securities Incorporated (or, if Prudential
Securities Incorporated is unable or unwilling to so act,
another investment banking or whole-loan trading firm selected
by the Seller (Prudential Securities Incorporated or such
other investment bank or trading firm, the "Advisor")), as
Advisor of the assets of the proposed auction.
b. Upon receiving notice of the proposed auction, the Advisor
will initiate its general auction procedures consisting of the
following: (i) with the assistance of the Seller, prepare a
general solicitation package along with a confidentiality
agreement; (ii) prepare a list of qualified bidders, in a
commercially reasonable manner; (iii) initiate contact with
all qualified bidders; (iv) send a confidentiality agreement
to all qualified bidders; (v) upon receipt of a signed
confidentiality agreement, send solicitation packages to all
interested bidders on behalf of the Trustee; and (vi) notify
the Seller of all potential bidders and anticipated timetable.
c. The general solicitation package will include: (i) the
prospectus from the public offering of the Class A
Certificates ("Prospectus"); (ii) a copy of all monthly
servicing reports or a copy of all annual servicing reports
and, upon a written request, the prior years' monthly
servicing reports; (iii) a form of a purchase and sale
agreement and servicing agreement for such sale; (iv) a
description of the minimum purchase price required to cause
the Trustee to sell the Mortgage Loans as set forth in
<PAGE>
Section 8.3 of the Pooling and Servicing Agreement; (v) a
formal bidsheet; (vi) a detailed timetable; and (vii) a
preliminary data tape of the Mortgage Loans as of the most
recent Payment Date reflecting the same data attributes used
to create the original Cut-Off Date tables for the Prospectus.
d. The Advisor will send solicitation packages to all bidders no
later than the Payment Date preceding the date of the auction,
which date shall be fifteen (15) Business Days before a
Payment Date (the "Auction Date"). Bidders will be required to
submit any due diligence questions in writing to the Advisor,
for determination of their relevancy, no later than ten (10)
Business Days before the Auction Date. The Seller and the
Advisor will be required to satisfy all relevant questions at
least five (5) Business Days prior to the Auction Date and
distribute the questions and answers to all bidders.
II. Auction Process
a. The Advisor will be allowed to bid in the auction, but will
not be required to do so.
b. The Seller will also be allowed to bid in the auction if it
deems appropriate, but will not be required to do so.
c. On the Auction Date, all bids will be due by facsimile to such
office as shall be designated by the Trustee by 1:00 p.m. EST;
with the winning bidder to be notified by 2:00 p.m. EST. All
acceptable bids (as described in Section 8.3 of the Pooling
and Servicing Agreement) will be due on a conforming basis on
the bid sheet contained in the solicitation package.
d. If the Trustee receives fewer than two market value bids from
competitive participants in the home equity loan market, the
Trustee may, following consultation with the Advisor and the
Seller, decline to consummate the sale.
e. Upon notification to the winning bidder, a one percent (1%)
good faith deposit of the aggregate balance of the unpaid
principal balances of the Mortgage Loans as of the last day
2
<PAGE>
of the preceding Remittance Period will be required to be
wired to the Trustee upon acceptance of the bid. This deposit,
along with any interest income attributable to it, will be
credited to the purchase price, but will not be refundable.
The Trustee will establish a separate account for the
acceptance of the good faith deposit, until such time as the
account is fully funded and all monies are transferred into
the Certificate Account, such time not to exceed one (1)
Business Day before the final Payment Date.
f. The winning bidder will receive on the Auction Date a copy of
the draft purchase and sale agreement and servicing agreement.
g. The Advisor will provide to the Trustee a letter concluding
whether or not the winning bid is a fair market value bid. The
Advisor will also provide this letter if it is the winning
bidder. In the case where the Advisor (or the Seller) is the
winning bidder, it will provide in its letter for market
comparables and valuations.
h. The auction will stipulate that the Master Servicer or a
successor Master Servicer be retained to service the Mortgage
Loans sold pursuant to the terms of the purchase and sale
agreement and the servicing agreement.
3
<PAGE>
EXHIBIT O
FORM OF TRUSTEE REQUEST
FOR INTEREST ADVANCES
Access Financial Receivables Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0465
Re: Pooling and Servicing Agreement, dated as of November 1, 1996,
among Access Financial Receivables Corp., as transferor,
Access Financial Lending Corp., as seller and master servicer,
and The Chase Manhattan Bank, as trustee
Ladies and Gentlemen:
In accordance with Section 7.9 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
trustee (the "Trustee"), hereby requests payment of the following amount
representing the Class A-6 Formula Interest Shortfall:
$_________________
Capitalized words and phrases used but not defined herein shall have
the respective meanings ascribed to them in the Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK, as
Trustee
By:_______________________
Name:
Title:
Dated:
EXHIBIT 10.1
<PAGE>
- --------------------------------------------------------------------------------
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
ACCESS FINANCIAL LENDING CORP.,
ACCESS FINANCIAL RECEIVABLES CORP.,
PRUDENTIAL SECURITIES INCORPORATED
and
J.P. MORGAN SECURITIES, INC.
Dated as of November 18, 1996
$239,765,000 Access Financial Mortgage Loan Trust 1996-4,
Mortgage Loan Pass-Through Certificates, Series 1996-4
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. Definitions................................................ 1
SECTION 2. Representations, Warranties and
Agreements of Financial Security........................... 3
SECTION 3. Representations, Warranties and
Agreements of the Underwriter.............................. 6
SECTION 4. Indemnification............................................ 7
SECTION 5. Indemnification Procedures................................. 8
SECTION 6. Contribution............................................... 9
SECTION 7. Miscellaneous.............................................. 10
EXHIBIT A Opinion of General Counsel
<PAGE>
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of November 18, 1996, among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), ACCESS FINANCIAL RECEIVABLES
CORP. (the "Transferor"), ACCESS FINANCIAL LENDING CORP. (the "Company"),
PRUDENTIAL SECURITIES INCORPORATED ("Prudential") and J.P. MORGAN SECURITIES,
INC. ("J.P. Morgan") (each of Prudential and J.P. Morgan, an "Underwriter"):
Section 1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as amended from time to
time.
"Company Party" means any of the Company, its parent and subsidiaries and
any shareholder, director, officer, employee, agent or "controlling
person" (as such term is used in the Securities Act) of any of the
foregoing.
"Federal Securities Laws" means the Securities Act, the Securities
Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment
Company Act of 1940, the Investment Advisers Act of 1940 and the Public
Utility Holding Company Act of 1935, each as amended from time to time,
and the rules regulations in effect from time to time under such Acts.
"Financial Security Agreements" means this Agreement and the Insurance
Agreement.
"Financial Security Information" has the meaning provided in Section 2(g)
hereof.
"Financial Security Party" means any of Financial Security, its parent,
subsidiaries and affiliates, and any shareholder, director, officer,
employee, agent or "controlling person" (as such term is used in the
Securities Act) of any of the foregoing.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 4 hereof.
"Indemnifying Party" means any party required to provide indemnification
pursuant to Section 4 hereof.
<PAGE>
-3-
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated
as of November 1, 1996, among Financial Security, the Transferor and the
Company.
"Losses" means (a) any actual out-of-pocket damages incurred by the party
entitled to indemnification or contribution hereunder, (b) any actual
out-of-pocket costs or expenses incurred by such party, including
reasonable fees or expenses of its counsel and other expenses incurred in
connection with investigating or defending any claim, action or other
proceeding which entitle such party to be indemnified hereunder (subject
to the limitations set forth in Section 5 hereof), to the extent not paid,
satisfied or reimbursed from funds provided by any other Person other than
an affiliate of such party (provided that the foregoing shall not create
or imply any obligation to pursue recourse against any such other Person),
plus (c) interest on the amount paid by the party entitled to
indemnification or contribution from the date of such payment to the date
of payment by the party who is obligated to indemnify or contribute
hereunder at the statutory rate applicable to judgments for breach of
contract.
"Offering Circular" means the Prospectus Supplement relating to the
Securities dated November 18, 1996.
"Offering Document" means the Offering Circular and any other material or
documents delivered by an Underwriter to any Person in connection with the
offer or sale of the Securities.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization or other organization or entity
(whether governmental or private).
"Policy" means the financial guaranty insurance policy delivered by
Financial Security with respect to the Securities.
"Securities" means the Class A Group I Certificates, Class A-6 Group II
Certificates, and the Class A-7 Group III Certificates issued pursuant to
the Pooling and Servicing Agreement, dated as of November 1, 1996, among
the Company, the Transferor and Chase Manhattan Bank, as trustee.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
<PAGE>
-4-
"Transferor Party" means any of the Transferor, its parent and
subsidiaries and any shareholder, director, officer, employee, agent or
"controlling person" (as such term is used in the Securities Act) of any
of the foregoing.
"Underwriter Information" has the meaning provided in Section 3(c) hereof.
"Underwriter Party" means either Underwriter, or, with respect to either
Underwriter, the parent, subsidiaries and affiliates thereof and any
shareholder, director, officer, employee, agent or "controlling person"
(as such item is used in the Securities Act) of any of the foregoing.
"Underwriting Agreement" means the Underwriting Agreement between the
Company and the Underwriters in respect of the Securities.
Section 2. Representations, Warranties and Agreements of Financial
Security. Financial Security represents, warrants and agrees to and with the
other parties hereto as follows:
(a) Organization, Etc. Financial Security is a stock insurance company
duly organized, validly existing and authorized to transact financial
guaranty insurance business under the laws of the State of New York.
(b) Authorization, Etc. The Policy and the Financial Security Agreements
have been duly authorized, executed and delivered by Financial Security.
(c) Validity, Etc. The Policy and the Financial Security Agreements
constitute valid and binding obligations of Financial Security,
enforceable against Financial Security in accordance with their terms,
subject, as to the enforcement of remedies, to bankruptcy, insolvency,
reorganization, rehabilitation, moratorium and other similar laws
affecting the enforceability of creditors' rights generally applicable in
the event of the bankruptcy or insolvency of Financial Security and to the
application of general principles of equity and subject, in the case of
this Agreement, to principles of public policy limiting the right to
enforce the indemnification provisions contained herein.
(d) Exemption From Registration. The Policy is exempt from registration
under the Securities Act.
(e) No Conflicts. Neither the execution or delivery by Financial Security
of the Policy or the Financial Security Agreements, nor the performance by
Financial Security of its obligations thereunder, will conflict with any
<PAGE>
-5-
provision of the certificate of incorporation or the bylaws of Financial
Security nor result in a breach of, or constitute a default under, any
material agreement or other instrument to which Financial Security is a
party or by which any of its property is bound nor violate any judgment,
order or decree applicable to Financial Security of any governmental or
regulatory body, administrative agency, court or arbitrator having
jurisdiction over Financial Security (except that, in the published
opinion of the Securities and Exchange Commission, the indemnification
provisions of this Agreement, insofar as they relate to indemnification
for liabilities arising under the Securities Act, are against public
policy as expressed in the Securities Act and are therefore
unenforceable).
(f) Financial Information. The consolidated balance sheets of Financial
Security as of December 31, 1994 and December 31, 1995 and the related
consolidated statements of income, changes in shareholder's equity and
cash flows for the fiscal years then ended and the interim consolidated
balance sheet of Financial Security as of September 30, 1996, and the
related statements of income, changes in shareholder's equity and cash
flows for the interim period then ended, furnished by Financial Security
to the Underwriters, fairly present in all material respects the financial
condition of Financial Security as of such dates and for such periods in
accordance with generally accepted accounting principles consistently
applied (subject as to interim statements to normal year-end adjustments),
and since the date of the most current interim consolidated balance sheet
referred to above there has been no change in the financial condition of
Financial Security which would materially and adversely affect its ability
to perform its obligations under the Policy.
(g) Financial Security Information. The information in the Offering
Circular set forth under the caption "The Certificate Insurance Policy and
the Certificate Insurer--Certificate Insurer" (as revised from time to
time in accordance with the provisions hereof, the "Financial Security
Information") is limited and does not purport to provide the scope of
disclosure required to be included in a prospectus with respect to a
registrant in connection with the offer and sale of securities of such
registrant registered under the Securities Act. Within such limited scope
of disclosure, however, as of the date of the Offering Circular and as of
the date hereof, the Financial Security Information does not contain any
untrue statement of a material fact, or omit to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
(h) Additional Information. Financial Security will furnish to the
Underwriters or the Company, upon request of an Underwriter or the
<PAGE>
-6-
Company, as the case may be, copies of Financial Security's most recent
financial statements (annual or interim, as the case may be) which fairly
present in all material respects the financial condition of Financial
Security as of the dates and for the periods indicated, in accordance with
generally accepted accounting principles consistently applied except as
noted therein (subject, as to interim statements, to normal year-end
adjustments); provided, however, that, if an Underwriter or the Company
shall require a manually signed report or consent of Financial Security's
auditors in connection with such financial statements, such report or
consent shall be at the expense of the relevant Underwriter or the
Company, as the case may be. In addition, if the delivery of an Offering
Circular relating to the Securities is required at any time prior to the
expiration of nine months after the time of issue of the Offering Circular
in connection with the offering or sale of the Securities, the Company or
an Underwriter will notify Financial Security of such requirement to
deliver an Offering Circular and Financial Security will promptly provide
the Underwriters and the Company with any revisions to the Financial
Security Information that are in the judgment of Financial Security
necessary to prepare an amended Offering Circular or a supplement to the
Offering Circular which will correct such statement or omission.
(i) Opinion of Counsel. Financial Security will furnish to the
Underwriters, the Company and the Transferor on the closing date for the
sale of the Securities an opinion of its General Counsel, to the effect
set forth in Exhibit A attached hereto, dated such closing date and
addressed to the Transferor, the Company and the Underwriters.
(j) Consents and Reports of Independent Accountants. Financial Security
will furnish to the Underwriters and the Company, upon request, as comfort
from its independent accountants in respect of its financial condition,
(i) at the expense of the Person specified in the Insurance Agreement, a
copy of the Offering Circular, including either a manually signed consent
or a manually signed report of Financial Security's independent
accountants and (ii) the quarterly review letter by Financial Security's
independent accountants in respect of the most recent interim financial
statements of Financial Security.
Nothing in this Agreement shall be construed as a representation or warranty by
Financial Security concerning the rating of its claims-paying ability by Moody's
Investors Service, Inc. or Standard & Poor's Corporation or any other rating
agency (collectively, the "Rating Agencies"). The Rating Agencies, in assigning
such ratings, take into account facts and assumptions not described in the
Offering Circular and the facts and assumptions which are considered by the
Rating Agencies, and the ratings issued thereby, are subject to change over
time.
<PAGE>
-7-
Section 3. Representations, Warranties and Agreements of the Underwriters.
Each Underwriter represents, warrants and agrees with respect to itself as
follows:
(a) Compliance With Laws. Such Underwriter will comply in all material
respects with all legal requirements in connection with offers and sales
of the Securities and make such offers and sales in the manner provided in
the Offering Circular.
(b) Offering Document. Such Underwriter will not use, or distribute to
other broker-dealers for use, any Offering Document in connection with the
offer and sale of the Securities unless such Offering Document includes
such information as has been furnished by Financial Security for inclusion
therein and the information therein concerning Financial Security has been
approved by Financial Security in writing. Financial Security hereby
consents to the information in respect of Financial Security included in
the Offering Circular. Each Offering Document will include the following
statement: "The Policy is not covered by the property/casualty insurance
security fund specified in Article 76 of the New York Insurance Law".
(c) Underwriter Information. All material provided by such Underwriter for
inclusion in the Offering Circular (as revised from time to time, the
"Underwriter Information"), insofar as such information relates to such
Underwriter, is true and correct in all material respects. In respect of
the Offering Circular, the Underwriter Information is limited to the
information set forth under the caption "Underwriting" and any information
relating to any potential market-making, over-allotment or price
stabilization activities of the related Underwriter in the Offering
Circular.
Section 4. Indemnification. (a) Financial Security agrees, upon the terms
and subject to the conditions provided herein, to indemnify, defend and hold
harmless each Transferor Party, each Company Party, and each Underwriter Party
against (i) any and all Losses incurred by them with respect to the offer and
sale of the Securities and resulting from Financial Security's breach of any of
its representations, warranties or agreements set forth in Section 2 hereof and
(ii) any and all Losses to which any Transferor Party, Company Party or
Underwriter Party may become subject, under the Securities Act or otherwise,
insofar as such Losses arise out of or result from an untrue statement of a
material fact contained in any Offering Document or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or omission was made in the Financial
Security Information included therein in accordance with the provisions hereof.
(b) Each Underwriter agrees, severally and not jointly, upon the terms and
subject to the conditions provided herein, to indemnify, defend and hold
harmless each Financial Security Party against (i) any and all Losses incurred
<PAGE>
-8-
by them with respect to the offer and sale of the Securities and resulting from
such Underwriter's breach of any of its representations, warranties or
agreements set forth in Section 3 hereof and (ii) any and all Losses to which
any Financial Security Party may become subject, under the Securities Act or
otherwise, insofar as such Losses arise out of or result from an untrue
statement of a material fact contained in any Offering Document or the omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or omission was made in the
Underwriter Information included therein.
(c) Upon the incurrence of any Losses for which a party is entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party to the
Indemnifying Party of the Losses incurred.
Section 5. Indemnification Procedures. Except as provided below in Section
6 with respect to contribution, the indemnification provided herein by an
Indemnifying Party shall be the exclusive remedy of any and all Indemnified
Parties for the breach of a representation, warranty or agreement hereunder by
an Indemnifying Party; provided, however, that each Indemnified Party shall be
entitled to pursue any other remedy at law or in equity for any such breach so
long as the damages sought to be recovered shall not exceed the Losses incurred
thereby resulting from such breach. In the event that any action or regulatory
proceeding shall be commenced or claim asserted which may entitle an Indemnified
Party to be indemnified under this Agreement, such party shall give the
Indemnifying Party written or telegraphic notice of such action or claim
reasonably promptly after receipt of written notice thereof. The Indemnifying
Party shall be entitled to participate in and, upon notice to the Indemnified
Party, assume the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Indemnified Party. The
Indemnified Party will have the right to employ its own counsel in any such
action in addition to the counsel of the Indemnifying Party, but the fees and
expenses of such counsel will be at the expense of such Indemnified Party,
unless (a) the employment of counsel by the Indemnified Party at its expense has
been authorized in writing by the Indemnifying Party, (b) the Indemnifying Party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnifying Party and one or more Indemnified
Parties, and the Indemnified Parties shall have been advised by counsel that
there may be one or more legal defenses available to them which are different
from or additional to those available to the Indemnifying Party (it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
<PAGE>
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expenses of more than one separate firm of attorneys at any time for all
Transferor Parties, one such firm for all Underwriter Parties relating to
Prudential, one such firm for all Underwriter Parties relating to J.P. Morgan,
one such firm for all Company Parties, and one such firm for all Financial
Security Parties, as the case may be, which firm shall be designated in writing
by the Transferor in respect of the Transferor Parties, by the relevant
Underwriter in respect of the Underwriter Parties, by the Company in respect of
the Company Parties and by Financial Security in respect of the Financial
Security Parties), in each of which cases the fees and expenses of counsel will
be at the expense of the Indemnifying Party and all such fees and expenses will
be reimbursed promptly as they are incurred. The Indemnifying Party shall not be
liable for any settlement of any such claim or action unless the Indemnifying
Party shall have consented thereto or be in default in its obligations
hereunder. Any failure by an Indemnified Party to comply with the provisions of
this Section shall relieve the Indemnifying Party of liability only if such
failure is prejudicial to the position of the Indemnifying Party and then only
to the extent of such prejudice.
Section 6. Contribution. (a) To provide for just and equitable
contribution if the indemnification provided by any Indemnifying Party is
determined to be unavailable for any Indemnified Party (other than due to
application of this Section), each Indemnifying Party shall contribute to the
Losses arising from any breach of any of its representations, warranties or
agreements contained in this Agreement on the basis of the relative fault of
each of the parties as set forth in Section 6(b) below; provided, however, that
an Indemnifying Party shall in no event be required to contribute to all
Indemnified Parties an aggregate amount in excess of the Losses incurred by such
Indemnified Parties resulting from the breach of representations, warranties or
agreements contained in this Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand, and of
each Indemnified Party, on the other, shall be determined by reference to, among
other things, whether the breach of, or alleged breach of, any representations,
warranties or agreements contained in this Agreement relates to information
supplied by, or action within the control of, the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such breach.
(c) The parties agree that Financial Security shall be solely responsible
for the Financial Security Information and the Underwriters shall be solely
responsible for the Underwriter Information and that the balance of each
Offering Document shall be the responsibility of the Transferor and the Company
as described in the Insurance Agreement.
(d) Notwithstanding anything in this Section 6 to the contrary, an
Underwriter shall not be required to contribute an amount in excess of the
amount by which the total re-offering price at which the Securities underwritten
by such Underwriter and distributed and offered to the public exceeds the amount
<PAGE>
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paid under the Underwriting Agreement by such Underwriter for such Securities.
(e) No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) Upon the incurrence of any Losses entitled to contribution hereunder,
the contributor shall reimburse the party entitled to contribution promptly upon
establishment by the party entitled to contribution to the contributor of the
Losses incurred.
<PAGE>
-11-
Section 7. Miscellaneous.
(a) Notices. All notices and other communications provided for under this
Agreement shall be delivered to the address set forth below or to such
other address as shall be designated by the recipient in a written notice
to the other party or parties hereto.
If to Financial Security:
Financial Security Assurance Inc.
350 Park Avenue
New York, NY 10022
Attention: Senior Vice President--
Surveillance (with a copy to the attention of the General Counsel)
If to Transferor:
Access Financial Receivables Corp.
400 Highway 169 South, Suite 410
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
If to Company:
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
St. Louis Park, Minnesota 55426-0365
Attention: General Counsel
If to Prudential:
Prudential Securities Incorporated
Asset-Backed Finance Group
One New York Plaza, 15th Floor
New York, New York 10292-2015
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street, 18th Floor
New York, New York 10260-0060
<PAGE>
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(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(c) Assignments. This Agreement may not be assigned by any party without
the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
(d) Amendments. Amendments of this Agreement shall be in writing signed by
each party hereto.
(e) Survival, Etc. The indemnity and contribution agreements contained in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Indemnifying Party, (ii) the issuance of the Securities or (iii) any
termination of this Agreement or the Policy. The indemnification provided
in this Agreement will be in addition to any liability which the parties
may otherwise have and shall in no way limit any obligations of the
Transferor or the Company under the Underwriting Agreement or the
Insurance Agreement, as applicable.
(f) Counterparts. This Agreement may be executed in counterparts by the
parties hereto, and all such counterparts shall constitute one and the
same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE
INC.
By____________________________________
Name__________________________________
Authorized Officer
ACCESS FINANCIAL LENDING CORP.
By____________________________________
Name__________________________________
Title_________________________________
ACCESS FINANCIAL RECEIVABLES
CORP.
By____________________________________
Name__________________________________
Title_________________________________
PRUDENTIAL SECURITIES
INCORPORATED
By____________________________________
Name__________________________________
Title_________________________________
J.P. MORGAN SECURITIES, INC.
By____________________________________
Name__________________________________
Title_________________________________
<PAGE>
EXHIBIT A
OPINION OF GENERAL COUNSEL
Based upon the foregoing, I am of the opinion that:
1. Financial Security is a stock insurance company duly organized, validly
existing and authorized to transact financial guaranty insurance business under
the laws of the State of New York.
2. The Policy and the Agreements have been duly authorized, executed and
delivered by Financial Security.
3. The Policy and the Agreements constitute valid and binding obligations
of Financial Security, enforceable against Financial Security in accordance with
their terms, subject, as to the enforcement of remedies, to bankruptcy,
insolvency, reorganization, rehabilitation, moratorium and other similar laws
affecting the enforceability of creditors' rights generally applicable in the
event of the bankruptcy or insolvency of Financial Security and to the
application of general principles of equity and subject, in the case of the
Indemnification Agreement, to principles of public policy limiting the right to
enforce the indemnification provisions contained therein insofar as they relate
to indemnification for liabilities arising under applicable securities laws.
4. The Policy is exempt from registration under the Securities Act of
1933, as amended (the "Act").
5. Neither the execution or delivery by Financial Security of the Policy
or the Agreements, nor the performance by Financial Security of its obligations
thereunder, will conflict with any provision of the certificate of incorporation
or the by-laws of Financial Security or, to the best of my knowledge, result in
a breach of, or constitute a default under, any agreement or other instrument to
which Financial Security is a party or by which it or any of its property is
bound or, to the best of my knowledge, violate any judgment, order or decree
applicable to Financial Security of any governmental or regulatory body,
administrative agency, court or arbitrator having jurisdiction over Financial
Security (except that in the published opinion of the Securities and Exchange
Commission the indemnification provisions of the Indemnification Agreement,
insofar as they relate to indemnification for liabilities arising under the Act,
are against public policy as expressed in the Act and are therefore
unenforceable).
In addition, please be advised that I have reviewed the description of
Financial Security under the caption "The Certificate Insurance Policy and the
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Certificate Insurer--Certificate Insurer" in the Prospectus Supplement dated
November 18, 1996 (the "Offering Document") of the Transferor with respect to
the Securities. The information provided in the Offering Document with respect
to Financial Security is limited and does not purport to provide the scope of
disclosure required to be included in a prospectus with respect to a registrant
under the Act in connection with the public offer and sale of securities of such
registrant. Within such limited scope of disclosure, however, there has not come
to my attention any information which would cause me to believe that the
description of Financial Security referred to above, as of the date of the
Offering Document or as of the date of this opinion, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that I express no opinion
with respect to any financial statements or other financial information
contained or referred to therein).
