CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
DLJ MORTGAGE CAPITAL, INC.,
Seller
WILSHIRE CREDIT CORPORATION,
Servicer
and
THE CHASE MANHATTAN BANK,
Trustee
--------------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2001
--------------------------------------------------------------------------------
CSFB TRUST SERIES 2001-S6
CSFB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-S6
Table of Contents
Page
----
ARTICLE I
DEFINITIONS...........................................................................................6
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES.......................................................................46
SECTION 2.01. Conveyance of Mortgage Loans..........................................................46
SECTION 2.02. Acceptance by the Trustee.............................................................50
SECTION 2.03. Representations and Warranties of the Seller and Servicer.............................51
SECTION 2.04. Representations and Warranties of the Depositor as to the Mortgage Loans..............53
SECTION 2.05. Delivery of Opinion of Counsel in Connection with Substitutions.......................54
SECTION 2.06. Execution and Delivery of Certificates................................................54
SECTION 2.07. REMIC Matters.........................................................................54
SECTION 2.08. Covenants of the Servicer.............................................................54
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS....................................................................................56
SECTION 3.01. Servicer to Service Mortgage Loans....................................................56
SECTION 3.02. Subservicing; Enforcement of the Obligations of Subservicers..........................58
SECTION 3.03. [Reserved]............................................................................59
SECTION 3.04. Trustee to Act as Servicer............................................................59
SECTION 3.05. Collection of Mortgage Loans; Collection Accounts; Certificate Account................59
SECTION 3.06. Establishment of and Deposits to Escrow Accounts; Permitted Withdrawals from
Escrow Accounts; Payments of Taxes, Insurance and Other Charges.......................63
SECTION 3.07. Access to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections...........................................................................64
SECTION 3.08. Permitted Withdrawals from the Collection Accounts and Certificate Account............64
SECTION 3.09. Maintenance of Hazard Insurance and Mortgage Impairment Insurance; Claims;
Restoration of Mortgaged Property.....................................................66
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.............................67
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans.......68
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SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.......................................72
SECTION 3.13. Documents, Records and Funds in Possession of the Servicer to be Held for
the Trustee...........................................................................73
SECTION 3.14. Servicing Fee.........................................................................73
SECTION 3.15. Access to Certain Documentation.......................................................73
SECTION 3.16. Annual Statement as to Compliance.....................................................74
SECTION 3.17. Annual Independent Public Accountants' Servicing Statement; Financial Statements......74
SECTION 3.18. Maintenance of Fidelity Bond and Errors and Omissions Insurance.......................74
SECTION 3.19. Duties of the Loss Mitigation Advisor.................................................75
SECTION 3.20. Limitation Upon Liability of the Loss Mitigation Advisor..............................76
SECTION 3.21. Maintenance of Pool Insurance Policy..................................................76
SECTION 3.22. Maintenance of Special Hazard Insurance Policy........................................77
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER.............................................................................78
SECTION 4.01. Advances by the Servicer..............................................................78
SECTION 4.02. Priorities of Distribution............................................................78
SECTION 4.03. [Reserved]............................................................................83
SECTION 4.04. [Reserved]............................................................................83
SECTION 4.05. Allocation of Realized Losses.........................................................83
SECTION 4.06. Monthly Statements to Certificateholders..............................................84
SECTION 4.07. Certificate Insurer; Policy Matters...................................................86
SECTION 4.08. Distributions on the Uncertificated REMIC 1 Regular Interests.........................90
SECTION 4.09. Distributions on the Uncertificated REMIC 2 Regular Interests.........................91
SECTION 4.10. ......................................................................................92
ARTICLE V
THE CERTIFICATES.....................................................................................94
SECTION 5.01. The Certificates......................................................................94
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates...........95
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.....................................99
SECTION 5.04. Persons Deemed Owners.................................................................99
SECTION 5.05. Access to List of Certificateholders' Names and Addresses............................100
SECTION 5.06. Maintenance of Office or Agency......................................................100
ARTICLE VI
THE DEPOSITOR, THE SELLER AND THE SERVICER..........................................................101
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SECTION 6.01. Respective Liabilities of the Depositor, the Sellers and the Servicers...............101
SECTION 6.02. Merger or Consolidation of the Depositor, the Seller or the Servicer.................101
SECTION 6.03. Limitation on Liability of the Depositor, the Seller, the Servicer and Others........101
SECTION 6.04. Limitation on Resignation of the Servicer............................................102
ARTICLE VII
DEFAULT.............................................................................................102
SECTION 7.01. Events of Default....................................................................102
SECTION 7.02. Trustee to Act; Appointment of Successor.............................................104
SECTION 7.03. Notification to Certificateholders...................................................105
SECTION 7.04. Termination by the Certificate Insurer...............................................105
ARTICLE VIII
CONCERNING THE TRUSTEE..............................................................................108
SECTION 8.01. Duties of the Trustee................................................................108
SECTION 8.02. Certain Matters Affecting the Trustee................................................109
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans................................110
SECTION 8.04. Trustee May Own Certificates.........................................................110
SECTION 8.05. Trustee's Fees and Expenses..........................................................110
SECTION 8.06. Eligibility Requirements for the Trustee.............................................111
SECTION 8.07. Resignation and Removal of the Trustee...............................................111
SECTION 8.08. Successor Trustee....................................................................112
SECTION 8.09. Merger or Consolidation of the Trustee...............................................112
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee........................................112
SECTION 8.11. Tax Matters..........................................................................114
SECTION 8.12. Periodic Filings.....................................................................116
ARTICLE IX
TERMINATION.........................................................................................117
SECTION 9.01. Termination upon Liquidation or Purchase of the Mortgage Loans.......................117
SECTION 9.02. Final Distribution on the Certificates...............................................117
SECTION 9.03. Additional Termination Requirements..................................................118
ARTICLE X
MISCELLANEOUS PROVISIONS............................................................................119
SECTION 10.01. Amendment............................................................................119
SECTION 10.02. Recordation of Agreement; Counterparts...............................................121
SECTION 10.03. Governing Law........................................................................121
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SECTION 10.04. [Reserved]..........................................................................121
SECTION 10.05. Notices.............................................................................121
SECTION 10.06. Severability of Provisions..........................................................122
SECTION 10.07. Assignment..........................................................................122
SECTION 10.08. Limitation on Rights of Certificateholders..........................................123
SECTION 10.09. Certificates Nonassessable and Fully Paid...........................................123
EXHIBITS
EXHIBIT A. Form of Senior Certificates.........................................................A-1
EXHIBIT B. Form of Subordinate Certificate.....................................................B-1
EXHIBIT C. Form of Residual Certificate........................................................C-1
EXHIBIT D. Form of Notional Amount Certificate.................................................D-1
EXHIBIT E. Form of Principal Only Certificate..................................................E-1
EXHIBIT F. Form of Reverse Certificates........................................................F-1
EXHIBIT G. Form of Initial Certification of Custodian..........................................G-1
EXHIBIT H. Form of Final Certification of Custodian............................................H-1
EXHIBIT I. Transfer Affidavit..................................................................I-1
EXHIBIT J. Form of Transferor Certificate......................................................J-1
EXHIBIT K. Form of Investment Letter (Non-Rule 144A)...........................................K-1
EXHIBIT L. Form of Rule 144A Letter............................................................L-1
EXHIBIT M. Request for Release.................................................................M-1
EXHIBIT N. [Reserved]..........................................................................N-1
EXHIBIT O-1. Form of Collection Account Certification..........................................O-1-1
EXHIBIT O-2. Form of Collection Account Letter Agreement.......................................O-2-1
EXHIBIT P-1. Form of Escrow Account Certification..............................................P-1-1
EXHIBIT P-2. Form of Escrow Account Letter Agreement...........................................P-2-1
EXHIBIT Q. Form of Monthly Remittance Advice...................................................Q-1
EXHIBIT R Form of Custodial Agreement.........................................................R-1
EXHIBIT S-1 Form of Group I Certificate Insurance Policy......................................S-1-1
EXHIBIT S-2 Form of Group III Certificate Insurance Policy....................................S-2-1
EXHIBIT T Mortgage Pool Insurance Policy......................................................T-1
EXHIBIT U Special Hazard Insurance Policy.....................................................U-1
SCHEDULE I Mortgage Loan Schedule..............................................................I-1
SCHEDULE II Seller's Representations and Warranties............................................II-1
SCHEDULE III Servicer's Representations and Warranties.........................................III-1
SCHEDULE IV Representations and Warranties for the Mortgage Loans.............................III-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2001, among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, as
depositor (the "Depositor"), DLJ MORTGAGE CAPITAL , INC., a Delaware
corporation, as Seller (the "Seller"), WILSHIRE CREDIT CORPORATION, a Nevada
corporation, as the Servicer (in such capacity, the "Servicer"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
REMIC 1
As provided herein, an election will be made to treat the segregated pool
of assets consisting of the Mortgage Loans and certain other assets as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as REMIC 1. The Class A-R-1 Certificates will represent the sole
class of "residual interests" in REMIC 1 for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, Uncertificated REMIC 1 Pass-Through Rate and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC 1 (the
"Uncertificated REMIC 1 Regular Interests"). None of the REMIC 1 Regular
Interests will be certificated.
Uncertificated REMIC 1 Initial Uncertificated
Designation Pass-Through Rate Balance
-------------- ------------------------------ ----------------------
LTA-I Variable(1) $ 74,547,536.00
LTB-I Variable(1) $ 9,213,790.36
LTP-I Variable(1) $ 100.00
LTR-I Variable(1) $ 200.00
LTA-II 6.80% $ 11,182,307.49
LTB-II Variable(1) $ 101,107,858.48
LTPO-II 0.00% $ 236,510.36
LTA-III Variable(1) $ 38,038,667.00
LTB-III Variable(1) $ 4,701,409.32
----------
(1) Calculated as provided in the definition of Uncertificated Pass-Through
Rate.
1
REMIC 2
As provided herein, an election will be made to treat the segregated
pool of assets consisting of the Uncertificated REMIC 1 Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as REMIC 2. The Class A-R-2 Certificates will represent the sole
class of "residual interests" in REMIC 2 for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, Uncertificated REMIC 2 Pass-Through Rate and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC 2 (the
"Uncertificated REMIC 2 Regular Interests"). None of the REMIC 2 Regular
Interests will be certificated.
Uncertificated REMIC 2 Initial Uncertificated
Designation Pass-Through Rate Balance
-------------- ------------------------------ ----------------------
MTA-I Variable(1) $ 74,547,536.00
MTB1-I Variable(1) $ 5,235,107.00
MTB2-I Variable (1) $ 3,978,683.36
MTP-I Variable(1) $ 100.00
MTR-I Variable (1) $ 100.00
MTA-II Variable(1) $ 99,912,229.00
MTB1-II Variable(1) $ 7,032,917.00
MTB2-II Variable (1) $ 5,345,019.97
MTPO-II 0.00% $ 236,510.36
MTA-III Variable(1) $ 38,038,667.00
MTB1-III Variable(1) $ 2,671,254.00
MTB2-III Variable(1) $ 2,030,155.32
----------
(1) Calculated as provided in the definition of Uncertificated Pass-Through
Rate.
(2) Will not have a principal balance but will accrue interest on an
"Uncertificated Notional Amount" as defined herein.
REMIC 3
As provided herein, an election will be made to treat the segregated pool
of assets consisting of the Uncertificated REMIC 2 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as REMIC 3. The Class A-R-3 Certificates will represent the sole
class of "residual interests" in REMIC 3 for purposes of the REMIC Provisions
under federal income tax law.
2
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
Class Certificate Pass-Through Minimum Integral Multiples
Balance Rate Denomination in Excess of
Minimum
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Class I-A-1 $ 74,547,536.00 Adjustable (1) $25,000 $1
------------------------------------------------------------------------------------------------------
Class I-A-2 (2) Adjustable (1) $100,000 $1
------------------------------------------------------------------------------------------------------
Class P $ 100.00 Variable (4) $100 $1
------------------------------------------------------------------------------------------------------
Class II-A-1 $ 99,912,229.00 6.80% $25,000 $1
------------------------------------------------------------------------------------------------------
Class X-II (2) 8.00% $100,000 $1
------------------------------------------------------------------------------------------------------
Class II-P $ 236,510.36 0.00% (3) $25,000 $1
------------------------------------------------------------------------------------------------------
Class III-A-1 $ 38,038,667.00 Adjustable (1) $25,000 $1
------------------------------------------------------------------------------------------------------
Class III-A-2 (2) Adjustable (1) $100,000 $1
------------------------------------------------------------------------------------------------------
Class A-R-1 $ 100.00 Variable (4) $100 N/A
------------------------------------------------------------------------------------------------------
Class A-R-2 $ 100.00 Variable (4) $100 N/A
------------------------------------------------------------------------------------------------------
Class A-R-3 $ 100.00 Variable (4) $100 N/A
------------------------------------------------------------------------------------------------------
Class B-1 $ 14,939,278.00 Variable (5) $25,000 $1
------------------------------------------------------------------------------------------------------
Class XB-1 (2) 8.00% $100,000 $1
------------------------------------------------------------------------------------------------------
Class B-2 $ 11,353,858.65 Variable (5) $25,000 $1
------------------------------------------------------------------------------------------------------
Class XB-2 $ (2) 8.50% $100,000 $1
======================================================================================================
----------
(1) The Class I-A-1, Class I-A-2, Class III-A-1 and Class III-A-2 Certificates
are adjustable rate and will receive interest pursuant to formulas based on
LIBOR, subject to a cap and a floor.
3
(2) These Certificates are interest only certificates, will have no principal
balance and will accrue interest on their related notional amount. The
initial notional amounts of the Class I-A-2, Class X-II, Class III-A-2,
Class XB-1 and Class XB-2 Certificates will be approximately
$74,547,536.00, $24,574,026.41, $38,038,667.00, $1,960,780.24 and
$734,661.34, respectively.
(3) The Class II-P Certificates will not receive any distributions of interest.
(4) The initial pass-through rates on the Class P, Class A-R-1, Class A-R-2 and
Class A-R-3 Certificates will be approximately 9.3337% per annum and will
vary after the first Distribution Date.
(5) The initial pass-through rates on the Class B-1 and Class B-2 Certificates
will be approximately 8.00% and 8.50%, respectively per annum and will vary
after the first Distribution Date.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates......................... All Classes of Certificates other than the Physical Certificates.
ERISA-Restricted Certificates................... Residual Certificates.
Group I Certificates............................ Class I-A-1, Class I-A-2, Class A-R and Class P Certificates.
Group II Certificates........................... Class II-A-1, Class X-II and Class II-P Certificates.
Group III Certificates.......................... Class III-A-1 and Class III-A-2 Certificates
Notional Amount Certificates.................... Class I-A-2, Class X-II, Class III-A-2, Class XB-1 and Class XB-2
Certificates.
Class A Certificates............................ Class I-A-1, Class I-A-2, Class II-A-1, Class III-A-1, and Class III-
A-2 Certificates.
Class A-R Certificates.......................... Class A-R-1, Class A-R-2 and Class A-R-3 Certificates.
Class B Certificates............................ Class B-1 and Class B-2 Certificates.
Class XB Certificates........................... Class XB-1 Certificates and Class XB-2 Certificates.
Class X Certificates Class X-II, Class XB-1 and Class XB-2 Certificates.
Offered Certificates............................ All Classes of Certificates.
Principal Only Certificates..................... Class II-P Certificates.
Physical Certificates........................... Class A-R Certificates and Class P Certificates.
Rating Agencies................................. S&P and Xxxxx'x.
Regular Certificates............................ All Classes of Certificates other than the Class A-R Certificates.
Residual Certificates........................... Class A-R Certificates.
4
Senior Certificates............................. Class I-A-1, Class I-A-2, Class P, Class II-A-1, Class II-P, Class X-
II, Class III-A-1, Class III-A-2 and Class A-R Certificates.
Subordinate Certificates........................ Class B-1, Class XB-1, Class B-2 and Class XB-2 Certificates.
Explanatory Note................................ The Certificates whose class designation begins or ends with "I"
correspond to Loan Group I. The Certificates whose class designation
begins or ends with "II" correspond to Loan Group II. The Certificates
whose class designation begins or ends with "III" correspond to Loan
Group III. The Subordinate Certificates correspond to all three
groups.
5
ARTICLE I
DEFINITIONS
SECTION 1.01. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjusted Weighted Average Net Mortgage Rate: With respect to any
Distribution Date and the Group II Mortgage Loans, the weighted average of the
Net Mortgage Rates of the Group II Mortgage Loans, provided however each
mortgage loan with a Net Mortgage Rate less than 6.80% shall be treated as
having a Net Mortgage Rate of 6.80%. For purposes of calculating this rate, the
principal balance of each Class II-P Mortgage Loan will equal the product of its
principal balance multiplied by the difference between 1.0 and the Class II-P
Fraction for that mortgage loan.
Advance: The payment required to be made by the Servicer with respect to
any Distribution Date pursuant to Section 4.01.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other than
Servicing Fees, Prepayment Penalties, including but not limited to, late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges.
Appraised Value: The amount set forth in an appraisal made in connection
with the origination of the related Mortgage Loan as the value of the Mortgaged
Property.
Assignment Agreement: An assignment agreement between DLJ Mortgage Capital,
Inc. as Seller and the Depositor, whereby the Mortgage Loans are transferred and
the representations and warranties on the related Mortgage Loans are assigned.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
transfer of the Mortgage to the Trustee for the benefit of the
Certificateholders.
Available Funds: With respect to any Distribution Date and each Loan Group
the sum of (i) all related Scheduled Payments (net of the related Expense Fees)
due on the Due Date in the month in which such Distribution Date occurs and
received prior to the related Determination Date, together with any Advances in
respect thereof; (ii) all related Insurance Proceeds and
6
Liquidation Proceeds received during the month preceding the month of such
Distribution Date; (iii) all Curtailments and Payoffs received during the
Prepayment Period applicable to such Distribution Date (excluding Prepayment
Penalties); (iv) related amounts received with respect to such Distribution Date
as the Substitution Adjustment Amount or Repurchase Price, in each case reduced
by amounts in reimbursement for Advances previously made and other amounts as to
which the Servicer is entitled to be reimbursed pursuant to Section 3.08; and
(v) related Compensating Interest Payments for such Distribution Date; provided
however, Available Funds for each Loan Group will be subject to increase or
decrease to reflect any adjustments under Section 4.02(f) (X) and (Y).
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the Servicer has notified the
Trustee in writing that the Servicer is diligently pursuing any remedies that
may exist in connection with the related Mortgage Loan and either (A) the
related Mortgage Loan is not in default with regard to payments due thereunder
or (B) delinquent payments of principal and interest under the related Mortgage
Loan and any related escrow payments in respect of such Mortgage Loan are being
advanced on a current basis by the Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, or the city in
which the Corporate Trust Office of the Trustee, or savings and loan
institutions in the States of Illinois, California or Texas or the Commonwealth
of Pennsylvania, is located are authorized or obligated by law or executive
order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account created and maintained
with the Trustee, or any other bank or trust company acceptable to the Rating
Agencies which is incorporated under the laws of the United States or any state
thereof pursuant to Section 3.05, which account shall bear a designation clearly
indicating that the funds deposited therein are held in trust for the benefit of
the Trustee on behalf of the Certificateholders or any other account serving a
similar function acceptable to the Rating Agencies. Funds in the Certificate
Account may (i) be held uninvested without liability for interest or
compensation thereon or (ii) be invested at the direction of the Trustee in
Eligible Investments and reinvestment earnings thereon (net of investment
losses) shall be paid to the Trustee. Funds deposited in the Certificate Account
(exclusive of the Trustee Fees and other amounts permitted to be withdrawn
pursuant to Section 3.08) shall be held in trust for the Certificateholders.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal
7
to the Denomination thereof minus the sum of (i) all distributions of principal
previously made with respect thereto and (ii) all Realized Losses allocated
thereto and, in the case of any Subordinate Certificates, all other reductions
in Certificate Balance previously allocated thereto pursuant to Section 4.05.
Certificate Group: Any of the Group I Certificates, Group II Certificates
or the Group III Certificates, as the context requires.
Certificate Insurance Policy: The Group I Certificate Insurance Policy or
the Group II Certificate Insurance Policy.
Certificate Insurance Policy Payments Account: As defined in Section
4.07(c).
Certificate Insurer: MBIA Insurance Corporation a subsidiary of MBIA Inc.,
organized and created under the laws of the State of New York, or any successor
thereto.
Certificate Insurer Contact Persons: Collectively, the officers designated
by the Servicer to provide information to Certificate Insurer pursuant to
Section 4.07(i).
Certificate Insurer Default: As defined in Section 4.07(l).
Certificate Insurer Premium: With respect to any Distribution Date and the
Group I and Group III Insured Certificates, an amount equal to 1/12th of the
product of (a) the Class Principal Balance of the related Insured Certificates
as of such Distribution Date (prior to giving effect to any distributions
thereon on such Distribution Date) and (b) the Premium Percentage.
Certificate Insurer Reimbursement Amount: The sum of (i) all amounts paid
by Certificate Insurer under the related Certificate Insurance Policy which have
not been previously reimbursed, (ii) any unpaid Certificate Insurer Premium with
respect to such Certificate Insurance Policy, (iii) all amounts due to
Certificate Insurer under the Insurance Agreement and (iv) interest on the
foregoing at the Late Payment Rate.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action
8
hereunder. The Trustee is entitled to rely conclusively on a certification of
the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class A-R Pass-Through Rate: With respect to any Distribution Date and the
Class A-R-1, Class A-R-2 and Class A-R-3 Certificates, a per annum rate equal to
the weighted average of the Net Mortgage Rates for the Group I Mortgage Loans.
Class B-1 Pass-Through Rate: The interest rate on the Class B-1
Certificates will equal, on any Distribution Date, a per annum rate equal to (A)
the quotient expressed as a percentage of (a) the sum of (i) the product of (x)
the Group I Certificate Interest Rate and (y) the Subordinate Component Balance
related to Loan Group I immediately before that Distribution Date, (ii) the
product of (x) the Adjusted Weighted Average Net Mortgage Rate of the Group II
Mortgage Loans and (y) the Subordinate Component Balance related to Loan Group
II immediately before that Distribution Date, and (iii) the product of (x) the
Group III Certificate Interest Rate and (y) the Subordinate Component Balance
related to Loan Group III immediately before that Distribution Date, divided by
(b) the sum of the Subordinate Component Balances for Loan Group I, Loan Group
II and Loan Group III immediately before that Distribution Date minus (B) 1.05%
per annum. The initial Class B-1 Pass-Through Rate will be approximately 8.0039%
per annum. For federal income tax purposes, the Class B-1 Pass-Through Rate will
equal, on any Distribution Date, a per annum rate equal to the weighted average
of (i) the excess of the Uncertificated Pass-Through Rates of Uncertificated
REMIC 2 Regular Interest MTB1-I over 1.05% per annum, (ii) the excess of the
Uncertificated REMIC 2 Regular Interest MTB1-II over 1.05% per annum and (iii)
the excess of the Uncertificated REMIC 2 Regular Interest MTB1-III over 1.05%
per annum, weighted based on their respective Uncertificated Principal Balances.
Class B-2 Pass-Through Rate: The interest rate on the Class B-2
Certificates will equal, on any Distribution Date, a per annum rate equal to (A)
the quotient expressed as a percentage of (a) the sum of (i) the product of (x)
the Group I Certificate Interest Rate and (y) the Subordinate Component Balance
related to Loan Group I immediately before that Distribution Date, (ii) the
product of (x) the Adjusted Weighted Average Net Mortgage Rate of the Group II
Mortgage Loans and (y) the Subordinate Component Balance related to Loan Group
II immediately before that Distribution Date, and (iii) the product of (x) the
Group III Certificate Interest Rate and (y) the Subordinate Component Balance
related to Loan Group III immediately before that Distribution Date, divided by
(b) the sum of the Subordinate Component Balances for Loan Group I, Loan Group
II and Loan Group III immediately before that Distribution Date minus (B) 0.55%
per annum. The initial Class B-2 Pass-Through Rate will be approximately 8.5039%
per annum. For federal income tax purposes, the Class B-2 Pass-Through Rate will
equal, on any Distribution Date, a per annum rate equal to the weighted average
of (i) the excess of the Uncertificated Pass-Through Rates of Uncertificated
REMIC 2 Regular Interest MTB2-I over 0.55% per annum, (ii) the excess of the
Uncertificated REMIC 2 Regular Interest MTB2-II over 0.55% per annum and (iii)
the excess of the Uncertificated REMIC 2 Regular Interest MTB2-III over 0.55%
per annum, weighted based on their respective Uncertificated Principal Balances.
9
Class I-A-1 Pass-Through Rate: With respect to the initial Interest Accrual
Period is 6.37% per annum, and as to any Interest Accrual Period thereafter,
will be a per annum rate equal to LIBOR plus 0.80%, subject to a maximum rate
equal to the weighted average of the Net Mortgage Rates for the Group I Mortgage
Loans minus 0.04% per annum, and subject to a minimum rate of 0.80% per annum.
Class I-A-2 Notional Amount: With respect to any Distribution Date will
equal the Class Principal Balance of the Class I-A-1 Certificates; provided
however, for federal income tax purposes such Notional Amount will equal the
Uncertificated Principal Balance of Uncertificated REMIC 2 Regular Interest
MTA-I.
Class I-A-2 Pass-Through Rate: With respect to the initial Interest Accrual
Period is approximately 2.9237% per annum, and as to any Interest Accrual Period
thereafter, will be a per annum rate equal to the weighted average of the Net
Mortgage Rates for the Group I Mortgage Loans minus the sum of LIBOR and 0.84%,
subject to a maximum rate equal to the weighted average of the Net Mortgage
Rates for the Group I Mortgage Loans minus the sum of (i) the Class I-A-1
Pass-Through Rate and (ii) 0.04% per annum, and subject to a minimum rate of
0.00% per annum.
Class II-A-1 Pass-Through Rate: With respect to any Distribution Date will
equal 6.80% per annum.
Class III-A-1 Pass-Through Rate: With respect to the initial Interest
Accrual Period is 6.19% per annum, and as to any Interest Accrual Period
thereafter, will be a per annum rate equal to LIBOR plus 1.00%, subject to a
maximum rate equal to the weighted average of the Net Mortgage Rates for the
Group III Mortgage Loans minus 0.04% per annum, and subject to a minimum rate of
1.00% per annum.
Class III-A-2 Notional Amount: With respect to any Distribution Date will
equal the Class Principal Balance of the Class III-A-1 Certificates; provided
however, for federal income tax purposes such Notional Amount will equal the
Uncertificated Principal Balance of Uncertified REMIC 2 Regular Interest
MTA-III.
Class III-A-2 Pass-Through Rate: With respect to the initial Interest
Accrual Period is approximately 3.0291% per annum, and as to any Interest
Accrual Period thereafter, will be a per annum rate equal to the weighted
average of the Net Mortgage Rates for the Group III Mortgage Loans minus the sum
of LIBOR and 1.04%, subject to a maximum rate equal to the weighted average of
the Net Mortgage Rates for the Group III Mortgage Loans minus the sum of (i) the
Class III-A-1 Pass-Through Rate and (ii) 0.04% per annum, and subject to a
minimum rate of 0.00% per annum.
Class Interest Shortfall: As to any Distribution Date and Class, the amount
by which the amount described in clause (i) of the definition of Interest
Distribution Amount for such Class, exceeds the amount of interest actually
distributed on such Class on such Distribution Date.
Class II-P Deferred Amount: As to any Distribution Date, the aggregate of
the applicable Class II-P Fraction of each Realized Loss, other than any Excess
Loss, to be allocated to
10
the Class II-P Certificates on such Distribution Date on or prior to the Credit
Support Depletion Date or previously allocated to such Class II-P Certificates
and not yet paid to the Holders of such Class II-P Certificates pursuant to
Section 4.02(b).
Class II-P Fraction: With respect to any Class II-P Mortgage Loan, a
fraction, the numerator of which is 6.80% minus the Net Mortgage Rate on such
Class II-P Mortgage Loan and the denominator of which is 6.80%.
Class II-P Mortgage Loan: Any Group II Mortgage Loan with a Net Mortgage
Rate of less than 6.80%.
Class II-P Principal Distribution Amount: With respect to any Distribution
Date and the Class II-P Certificates, an amount equal to the aggregate of, for
all Class II-P Mortgage Loans, the product of the applicable Class II-P Fraction
and the sum of (x) the principal portion of the Scheduled Payments on such Class
II-P Mortgage Loan due on the related Due Date and which were received by the
Determination Date, or which have been advanced as part of an Advance with
respect to such Distribution Date, (y) the principal portion received in respect
of such Class II-P Mortgage Loan during the prior calendar month of (1)
Curtailments, (2) Insurance Proceeds, (3) the amount, if any, of repurchase
proceeds received with respect to any such Group II Mortgage Loan which was
repurchased as permitted or required by this Agreement during the calendar month
preceding the month of the Distribution Date, and (4) Liquidation Proceeds and
(z) the principal portion received in respect of such Class II-P Mortgage Loan
during the applicable Prepayment Period of Payoffs.
Class P Pass-Through Rate: With respect to any Distribution Date and the
Class P Certificates, a per annum rate equal to the weighted average of the Net
Mortgage Rates for the Group I Mortgage Loans.
Class Principal Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates of
such Class as of such date. Exclusively for the purpose of determining any
subrogation rights of the Certificate Insurer arising under Section 4.07 hereof,
"Certificate Balance" of the Insured Certificates shall not be reduced by the
amount of any payments made by the Certificate Insurer in respect of principal
on such Certificates under the related Certificate Insurance Policy, except to
the extent such payment shall have been reimbursed to the Certificate Insurer
pursuant to the provisions of this Agreement.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates.
Class X-II Notional Amount: With respect to any Distribution Date will
equal the product of (i) a fraction expressed as a percentage, the numerator of
which is equal to the Adjusted Weighted Average Net Mortgage Rate of the Group
II Mortgage Loans minus 6.80%, and the denominator of which is equal to 8.00%
and (ii) the Class Principal Balance of the Class II-A-1 Certificates. For
federal income tax purposes such Notional Amount will equal the Uncertificated
Principal Balance of Uncertificated REMIC 2 Regular Interest MTA-II.
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Class X-II Pass-Through Rate: With respect to any Distribution Date will
equal 8.00% per annum. For federal income tax purposes the Class X-II
Pass-Through Rate will equal the excess of the Uncertificated Pass-Through Rate
of the Uncertificated REMIC 2 Regular Interest MTA-II over 6.80% per annum.
Class XB-1 Notional Amount: With respect to any Distribution Date will
equal the product of (i) a fraction expressed as a percentage, the numerator of
which is equal to 1.05%, and the denominator of which is equal to 8.00% and (ii)
the Class Principal Balance of the Class B-1 Certificates. For federal income
tax purposes such Notional Amount will equal the sum of the Uncertificated
Principal Balances of Uncertificated REMIC 2 Regular Interest MTB1-I,
Uncertificated REMIC 2 Regular Interest MTB1-II and Uncertificated REMIC 2
Regular Interest MTB1-III.
Class XB-1 Pass-Through Rate: With respect to any Distribution Date will
equal 8.00% per annum. For federal income tax purposes, the Class XB-1
Pass-Through Rate will equal 1.05% per annum.
Class XB-2 Notional Amount: With respect to any Distribution Date will
equal the product of (i) a fraction expressed as a percentage, the numerator of
which is equal to 0.55%, the denominator of which is equal to 8.50% and (ii) the
Class Principal Balance of the Class B-2 Certificates. For federal income tax
purposes such Notional Amount will equal the sum of the Uncertificated Principal
Balances of Uncertificated REMIC 2 Regular Interest MTB2-I, Uncertificated REMIC
2 Regular Interest MTB2-II and Uncertificated REMIC 2 Regular Interest MTB2-III.
Class XB-2 Pass-Through Rate: With respect to any Distribution Date will
equal 8.50% per annum. For federal income tax purposes, the Class XB-2
Pass-Through Rate will equal 0.55% per annum.
Closing Date: March 29, 2001.
Code: The Internal Revenue Code of 1986, as the same may be amended from
time to time (or any successor statute thereto).
Collection Accounts: The accounts established and maintained by the
Servicer in accordance with Section 3.05.
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan and as to
any date of determination, the fraction (expressed as a percentage) the
numerator of which is the sum of (i) principal balance of the related Mortgage
Loan at such date of determination and (ii) the principal balance of the related
First Mortgage Loan as of the date of origination of that Mortgage Loan and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Compensating Interest Payment: For any Distribution Date and for any Loan
Group, the lesser of (i) an amount equal to 1/12th of 0.25% times the aggregate
Stated Principal Balance of the Mortgage Loans in that Loan Group as of the Due
Date in the month of such Distribution Date
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(prior to giving effect to any Scheduled Payments due on such Mortgage Loans on
such Due Date) and (ii) the aggregate Prepayment Interest Shortfall related to
that Loan Group for the immediately preceding Collection Period.
Corporate Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: ITS: CSFB-2001-S6. For purposes of Section
5.06, however, such term shall mean the office of the Trustee's agent, Chase
Manhattan Trust Company, National Association, located at 0000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other office as the
Trustee shall designate.
Credit Support Depletion Date: The date on which the aggregate Class
Principal Balance of the Subordinate Certificates has been reduced to zero.
CSFB: Credit Suisse First Boston Corporation, a Delaware corporation, and
its successors and assigns.
Curtailment: Any payment of principal on a Mortgage Loan, made by or on
behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding Stated
Principal Balance of the Mortgage Loan.
Custodial Agreement: The agreement, among the Trustee the Custodian and the
Depositor providing for the safekeeping of any documents or instruments referred
to in Section 2.01 on behalf of the Certificateholders, attached hereto as
Exhibit R.
Custodian: Bank One Trust Company, N.A., a national banking association or
any successor custodian appointed pursuant to the terms of the Custodial
Agreement. The Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Depositor. The Trustee shall remain at
all times responsible under the terms of this Agreement, notwithstanding the
fact that certain duties have been assigned to a Custodian.
Cut-off Date: March 1, 2001.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for such Mortgage Loan which became final and non-appealable,
except such a reduction resulting from a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became the
subject of a Debt Service Reduction.
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Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of such court which is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03.
Denomination: With respect to each Certificate, the amount set forth on the
face thereof as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a Delaware
corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date and any Mortgage Loan, the
15th day of each month or, if such day is not a Business Day, the first Business
Day thereafter.
Distribution Date: The 25th day of each month or if such day is not a
Business Day, the first Business Day thereafter, commencing in April, 2001.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
Due Date: With respect to any Distribution Date, the first day of the month
in which the related Distribution Date occurs.
Due Period: With respect to each Distribution Date, the period commencing
on the second day of the month preceding the month of the Distribution Date and
ending on the first day of the month of the Distribution Date.
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Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt obligations of such holding company) have been
rated by each Rating Agency in its highest short-term rating category, or (iii)
a segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in a
manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts may
bear interest.
Eligible Institution: An institution having the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating Agencies
or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and securities
listed below which investment provides for a date of maturity not later than the
Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America; or obligations fully guaranteed by,
the United States of America; the Federal Home Loan Mortgage Corporation,
Federal National Mortgage Corporation, the Federal Home Loan Banks or any
agency or instrumentality of the United States of America rated AA or
higher by the Rating Agencies;
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution
or trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, so long as at the
time of such investment or contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal subsidiary
of a holding company, the commercial paper or other short-term debt
obligations of such holding company) are rated in one of two of the highest
ratings by each of the Rating Agencies, and the long-term debt obligations
of such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal subsidiary
of a holding company, the long-term debt obligations of such holding
company) are rated in one of two of the highest ratings, by each of the
Rating Agencies;
(iii) repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered into with
a depository institution or trust company (acting as a principal) rated A
or higher by the Rating Agencies; provided,
15
however, that collateral transferred pursuant to such repurchase obligation
must be of the type described in clause (i) above and must (A) be valued
daily at current market price plus accrued interest, (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred by the
Trustee in exchange for such collateral, and (C) be delivered to the
Trustee or, if the Trustee is supplying the collateral, an agent for the
Trustee, in such a manner as to accomplish perfection of a security
interest in the collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which has a long-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
(v) commercial paper having an original maturity of less than 365 days
and issued by an institution having a short-term unsecured debt rating in
the highest available rating category of each of the Rating Agencies at the
time of such investment;
(vi) a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation having a
long-term unsecured debt rating in the highest available rating category of
each of the Rating Agencies at the time of such investment;
(vii) money market funds (which may be 12b-1 funds as contemplated
under the rules promulgated by the Securities and Exchange Commission under
the Investment Company Act of 1940) having ratings in the highest available
rating category of Xxxxx'x and one of the two highest available rating
categories of S&P at the time of such investment (any such money market
funds which provide for demand withdrawals being conclusively deemed to
satisfy any maturity requirements for Eligible Investments set forth
herein) including money market funds of the Servicer or the Trustee and any
such funds that are managed by the Servicer or the Trustee or their
respective Affiliates or for the Servicer or the Trustee or any Affiliate
of either acts as advisor, as long as such money market funds satisfy the
criteria of this subparagraph (vii); and
(viii) such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies (determined without
regard to the Certificate Insurance Policy), result in the downgrading or
withdrawal of the Ratings of the Certificates.
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
16
ERISA-Restricted Certificates: As specified in the Preliminary Statement.
Escrow Account: The separate account or accounts created and maintained by
the Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Group II Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 7.01.
Excess Loss: The amount of any (i) Fraud Loss realized in excess of the
fraud loss coverage provided by the Pool Insurer, (ii) Special Hazard Loss on a
Mortgage Loan realized in excess of the special hazard loss coverage provided by
the Special Hazard Insurer, (iii) Bankruptcy Loss on a Mortgage Loan realized in
excess of the bankruptcy loss coverage provided by the Pool Insurer, and (iv)
any Extraordinary Loss.
Expense Fees: As to each Mortgage Loan, the sum of the related Servicing
Fee, the Loss Mitigation Fee, the Trustee Fee, the Pool Insurer Fee and the
Special Hazard Insurer Fee.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate, the Loss Mitigation Fee Rate, the Trustee Fee Rate, the Pool
Insurer Fee and the Special Hazard Insurer Fee.
Extraordinary Losses: Any Realized Loss incurred on a Mortgage Loan, to the
extent that the loss was attributable to physical damage to a Mortgaged Property
of a type excluded from coverage under the Special Hazard Insurance Policy, as
specified therein under "II. Exclusions."
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
First Mortgage Loan: A Mortgage Loan that is secured by a first lien on the
Mortgaged Property securing the related Mortgage Note.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement Act of
1989.
Fiscal Agent: As defined in the Certificate Insurance Policy.
Fitch: Fitch, Inc., or any successor thereto, located at Xxx Xxxxx Xxxxxx
Xxxxx 00xx Xxxxx, Xxx Xxxx, XX 00000.
17
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FNMA Guides: The FNMA Sellers' Guide and the FNMA Servicers' Guide and all
amendments or additions thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Losses: Realized Losses on the Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any Insurance Policy because of such
fraud, dishonesty or misrepresentation.
Group I Certificates: As specified in the Preliminary Statement.
Group I Certificate Insurance Policy: The irrevocable Certificate Guaranty
Insurance Policy No. 34813, including any endorsements thereto, issued by the
Certificate Insurer with respect to the Group I Insured Certificates, in the
form attached hereto as Exhibit S-1.
Group I Certificate Interest Rate: For any Distribution Date will equal the
weighted average (by principal balance) of the Net Mortgage Rates on the Group I
Mortgage Loans as of the second preceding Due Date (or with respect to the
initial Distribution Date, as of the Cut-Off Date). The initial Group I
Certificate Interest Rate will be approximately 9.3337% per annum.
Group I Insured Certificates: The Class I-A-1 and Class I-A-2 Certificates.
Group I Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property.
Group II Certificates: As specified in the Preliminary Statement.
Group II Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof as from time to time
are held as a part of the Trust Fund (including any REO Property), the mortgage
loans so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Group III Certificates: As specified in the Preliminary Statement.
Group III Certificate Insurance Policy: The irrevocable Certificate
Guaranty Insurance Policy No. 34812, including any endorsements thereto, issued
by the Certificate Insurer with respect to the Group III Insured Certificates,
in the form attached hereto as Exhibit S-2.
18
Group III Certificate Interest Rate: For any Distribution Date will equal
the weighted average (by principal balance) of the Net Mortgage Rates on the
Group III Mortgage Loans as of the second preceding Due Date (or with respect to
the initial Distribution Date, as of the Cut-Off Date). The initial Group III
Certificate Interest Rate will be approximately 9.2591% per annum.
Group III Insured Certificates: The Class III-A-1 and Class III-A-2
Certificates.
Group III Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof as from time to time
are held as a part of the Trust Fund (including any REO Property), the mortgage
loans so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Indirect Participant: A broker, dealer, bank or other financial institution
or other Person that clears through or maintains a custodial relationship with a
Depository Participant.
Initial Pool Insurance Policy Bankruptcy Loss Coverage Amount: $100,000.
Initial Pool Insurance Policy Fraud Loss Coverage Amount: The aggregate
amount of the initial coverage provided under the Pool Insurance Policy which is
equal to $7,170,854.37.
Insurance Agreement: That certain insurance agreement, dated as of the
Cut-off Date, among Certificate Insurer, the Depositor, the Trustee, the
Servicer and DLJMC.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Fund, flood insurance policy or title insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds due under the Pool Insurance Policy or the
Special Hazard Insurance Policy, and proceeds paid under any other Insurance
Policy (excluding the Certificate Insurance Policy) covering a Mortgage Loan to
the extent the proceeds are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held for
its own account.
Insured Certificates: The Group I Insured Certificates and Group III
Insured Certificates.
Insured Payment: Has the meaning set forth in the related Certificate
Insurance Policy.
Interest Accrual Period: With respect to each Distribution Date, (i) with
respect to the Class II-A-1, Class X-II, Class B-1, Class B-2, Class XB-1, Class
XB-2 and Class A-R Certificates the calendar month prior to the month of such
Distribution Date, (ii) with respect to the Class I-A-1, Class I-A-2, Class
III-A-1 and Class III-A-2 the one-month period commencing on the 25th day of the
month preceding the month in which such Distribution Date occurs and ending on
the 24th day of the month in which such Distribution Date occurs.
19
Interest Distribution Amount: With respect to any Distribution Date and
interest-bearing Class, the sum of (i) one month's interest accrued during the
related Interest Accrual Period at the applicable Pass-Through Rate for such
Class on the related Class Principal Balance or Notional Amount, as applicable,
subject to reduction pursuant to Section 4.02(e), and (ii) any Class Unpaid
Interest Amounts for such Class.
Interest Transfer Amount: On any Distribution Date for each
Undercollateralized Group, an amount equal to one month's interest on the
applicable Principal Transfer Amount, plus any shortfall of interest on the
Senior Certificates related to such Undercollateralized Group remaining unpaid
from prior Distribution Dates plus any amounts due to the Certificate Insurer.
Investment Account: The commingled account (which shall be commingled only
with investment accounts related to series of pass-through certificates with a
Class of certificates which has a rating equal to the highest of the Ratings of
the Certificates) maintained by the Servicer in the trust department of the
Investment Depository pursuant to Section 3.05.
Investment Depository: The Chase Manhattan Bank, New York, New York or
another bank or trust company designated from time to time by the Servicer. The
Investment Depository shall at all times be an Eligible Institution.
Last Scheduled Distribution Date: With respect to each Class of
Certificates, the Distribution Date in May 25, 2031.
Late Payment Rate: As defined in the Insurance Agreement.
Latest Possible Maturity Date: Solely for purposes of satisfying Treasury
regulation Section 1.860G- 1(a)(4)(iii), the "latest possible maturity date" of
all interests created in REMIC 1, REMIC 2 and REMIC 3, which shall be the
Distribution Date in May 25, 2031.
LIBOR: For any Interest Accrual Period other than the first Interest
Accrual Period, the rate for United States dollar deposits for one month which
appears on the Dow Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London,
England time, on the second LIBOR Business Day prior to the first day of such
Interest Accrual Period. With respect to the first Interest Accrual Period, the
rate for United States dollar deposits for one month which appears on the Dow
Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London, England time, two
LIBOR Business Days prior to the Closing Date. If such rate does not appear on
such page (or such other page as may replace that page on that service, or if
such service is no longer offered, such other service for displaying LIBOR or
comparable rates as may be reasonably selected by the Trustee after consultation
with the Certificate Insurer), the rate will be the Reference Bank Rate. If no
such quotations can be obtained and no Reference Bank Rate is available, LIBOR
will be the LIBOR applicable to the Interest Accrual Period preceding the next
applicable Distribution Date.
LIBOR Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York or in the city of
London, England are required or authorized by law to be closed.
20
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has determined (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan, including the final disposition of the related REO Property.
Liquidation Principal: As to any Distribution Date, the principal portion
of Liquidation Proceeds received with respect to each Mortgage Loan which became
a Liquidated Mortgage Loan (but not in excess of the principal balance thereof)
during the preceding calendar month (exclusive of the applicable Class II-P
Fraction thereof).
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property related to a Mortgage Loan and any other proceeds received in
connection with an REO Property, less the sum of related unreimbursed Expense
Fees, Servicing Advances, Advances and reasonable out-of-pocket expenses.
Loan Group: Either the Group I Mortgage Loans, Group II Mortgage Loans or
Group III Mortgage Loans, as the context requires.
Loan Group I: The group of Mortgage Loans comprised of the Group I Mortgage
Loans.
Loan Group II: The group of Mortgage Loans comprised of the Group II
Mortgage Loans.
Loan Group III: The group of Mortgage Loans comprised of the Group III
Mortgage Loans.
Loss Coverage Percentage: As of any date of determination, a percentage
equal to the aggregate Class Principal Balance of the Class B Certificates plus
the amount of coverage available under the Pool Insurance Policy divided by the
then outstanding aggregate Stated Principal Balance of the Mortgage Loans.
Loss Mitigation Advisor: The Murrayhill Company, a Colorado corporation.
Loss Mitigation Advisory Agreement: The agreement among the Servicer, the
Trustee and the Loss Mitigation Advisor dated as of March 28, 2001.
Loss Mitigation Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Loss Mitigation Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments due
on such Mortgage Loan on such Due Date).
Loss Mitigation Fee Rate: 0.009719% per annum.
21
Majority in Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered with
MERS on the MERS(R) System.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the mortgagee
of such Mortgage Loan, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns, at the origination thereof.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. For
purposes of Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument creating a second
lien on an estate in fee simple or leasehold interest in real property securing
a Mortgage Note.
Mortgage File: The Mortgage documents listed in Section 2.01(b) hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: All of the Group I Mortgage Loans, Group II Mortgage Loans
and the Group III Mortgage Loans.
Mortgage Loan Schedule: The Mortgage Loan Schedule which will list the
Mortgage Loans (as from time to time amended by the Seller to reflect the
addition of Qualified Substitute Mortgage Loans and the purchase of Mortgage
Loans pursuant to Section 2.02 or 2.03) transferred to the Trustee as part of
the Trust Fund and from time to time subject to this Agreement, attached hereto
as Schedule I, setting forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including the state
and zip code;
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(iv) a code indicating the type of Mortgaged Property and the
occupancy status.
(v) the original months to maturity or the remaining months to
maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule;
(vi) the Combined Loan-to-Value Ratio at origination;
(vii) the Mortgage Rate as of the Cut-off Date;
(viii) the stated maturity date;
(ix) the amount of the Scheduled Payment as of the Cut-off Date;
(x) the original principal amount of the Mortgage Loan;
(xi) the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of principal due
on or before the Cut-off Date whether or not collected;
(xii) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
(xiii) the Net Mortgage Rate as of the Cut-off Date;
(xiv) the Originator of the related Mortgage Loan;
(xv) the Servicing Fee Rate;
(xvi) the related sub-servicer;
(xvii) a code indicating whether a Mortgage Loan is subject to a
Prepayment Penalty; and
(xviii) the amount of the Prepayment Penalty with respect to each
Mortgage Loan and a code identifying whether such Prepayment Penalty is
related to a Curtailment or Payoff.
With respect to the Mortgage Loans in the aggregate in each Loan Group,
each Mortgage Loan Schedule shall set forth the following information, as of the
Cut-off Date:
(i) the number of Mortgage Loans in each Loan Group;
(ii) the current aggregate principal balance of the Mortgage Loans in
each Loan Group as of the close of business on the Cut-off Date, after
deduction of payments of principal due on or before the Cut-off Date
whether or not collected; and
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(iii) the weighted average Mortgage Rate of the Mortgage Loans in each
Loan Group.
Mortgage Note: The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual fixed rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying real property securing a Mortgage Loan.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Interest Shortfall: The amount of any interest shortfall as determined
pursuant to Section 4.02(e).
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per annum
rate equal to the Mortgage Rate less the related Expense Fee Rate; provided
however, with respect to the Group I Mortgage Loans and Group III Mortgage
Loans, the Net Mortgage Rate shall also be net of the rate at which the
Certificate Insurer Premium accrues except as otherwise provided herein. For
purposes of determining whether any Qualified Substitute Mortgage Loan is a
Class II-P Mortgage Loan and for purposes of calculating the applicable Class
II-P Fraction, if applicable, each Qualified Substitute Mortgage Loan with
respect to a Group II Mortgage Loan shall be deemed to have a Mortgage Rate
equal to the Mortgage Rate of the Group II Mortgage Loan for which it is
substituted.
Net Prepayment Interest Shortfalls: As to any Distribution Date and each
Loan Group, the amount, if any, by which the aggregate of Prepayment Interest
Shortfalls for that Loan Group during the Prepayment Period exceeds the
Compensating Interest Payment for that Loan Group for such Distribution Date.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount: Any of the Class I-A-2 Notional Amount, the Class X-II
Notional Amount, the Class III-A-2 Notional Amount, the Class XB-1 Notional
Amount or the Class XB-2 Notional Amount as the context requires.
Notional Amount Certificates: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or the President or a Vice President or an
Assistant Vice President or the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer, and delivered to
the Depositor or the Trustee and the Certificate Insurer, as the case may be, as
required by this Agreement.
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Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Servicer, including in-house counsel, reasonably acceptable
to the Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor and the Servicer, (ii) not have any material direct
financial interest in the Depositor or the Servicer or in any affiliate of
either, and (iii) not be connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Optional Termination: The termination of the trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) (Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) (Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero which was not the subject of a Payoff
prior to such Due Date and which did not become a Liquidated Mortgage Loan prior
to such Due Date.
Overcollateralized Group: Any Loan Group, if on any Distribution Date such
Loan Group is not an Undercollateralized Group and one or both of the other Loan
Groups is an Undercollateralized Group.
Ownership Interest: As to any Residual Certificate, any ownership or
security interest in such Certificate including any interest in such Certificate
as the Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial.
Pass-Through Rate: With respect to the Class II-A-1 and Class X-II
Certificates, the per annum rate set forth in the Preliminary Statement. With
respect to the Class A-R, Class P, Class I-A-1, Class I-A-2, Class III-A-1 and
Class III-A-2 Certificates, the Class A-R Pass-Through Rate, Class P
Pass-Through Rate, the Class I-A-1 Pass-Through Rate, the Class I-A-2
Pass-Through Rate, the Class III-A-1 Pass-Through Rate and the Class III-A-2
Pass-Through Rate, respectively. With respect to the Class B-1 Certificates, the
Class B-1 Pass-Through Rate and with respect to the Class B-2 Certificates, the
Class B-2 Pass-Through Rate. With respect to the Class XB-1 Certificates, the
Class XB-1 Pass-Through Rate and with respect to the Class XB-2 Certificates,
the Class XB-2 Pass-Through Rate.
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Paying Agent: As defined in Section 4.07.
Payoff: Any payment of principal on a Mortgage Loan equal to the entire
outstanding Stated Principal Balance of such Mortgage Loan, if received in
advance of the last scheduled Due Date for such Mortgage Loan and accompanied by
an amount of interest equal to accrued unpaid interest on the Mortgage Loan to
the date of such payment-in-full.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a
United States Person, unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI, and (vi) a
Person designated as a non-Permitted Transferee by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Insurance Policy: The mortgage pool insurance policy provided by the
Pool Insurer having an initial amount of coverage equal to $23,902,847.90 and
including any and all endorsements, a copy of which is attached hereto, as
Exhibit T, or any replacement obtained by the Servicer pursuant to Section 3.21
hereof.
Pool Insurer: Radian Insurance Inc., or any successor thereto or the named
insurer in any replacement policy obtained by the Servicer pursuant to Section
3.21 hereof.
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Pool Insurer Fee: The amount payable to the Pool Insurer in order to obtain
coverage provided under the Pool Insurance Policy, such amount being, as to each
Mortgage Loan and any Distribution Date, an amount equal to one-twelfth of the
Pool Insurer Fee Rate on the Stated Principal Balance of Mortgage Loan.
Pool Insurer Fee Rate: With respect to any Group I Mortgage Loan, 1.9000%
per annum; with respect to any Group II Mortgage Loan, 2.2538% per annum; and
with respect to any Group III Mortgage Loan, 1.9751% per annum.
Preference Amount: As defined in the Certificate Insurance Policy.
Premium Percentage: As defined in each Commitment Letter between
Certificate Insurer and CSFB dated as of March 28, 2001.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution Date
and Principal Prepayment, the difference between (i) one full month's interest
at the applicable Mortgage Rate (giving effect to any applicable Relief Act
Reduction, Debt Service Reduction and Deficient Valuation), as reduced by the
related Expense Fee Rate, on the outstanding principal balance of such Mortgage
Loan immediately prior to such prepayment and (ii) the amount of interest
actually received with respect to such Mortgage Loan in connection with such
Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty required
to be paid if the Mortgagor prepays such Mortgage Loan as provided in the
related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each Payoff,
the related "Prepayment Period" will be the calendar month preceding the month
in which the related Distribution Date occurs. With respect to each Distribution
Date and each Curtailment, the related "Prepayment Period" will be the calendar
month preceding the month in which the related Distribution Date occurs.
Principal Payment Amount: For any Distribution Date and determined
separately for each Loan Group, the sum with respect to the related Mortgage
Loans of (i) the principal portion of the Scheduled Payments on such Mortgage
Loans due on the related Due Date, (ii) the principal portion of repurchase
proceeds received with respect to any such Mortgage Loan which was repurchased
as permitted or required by this Agreement during the calendar month preceding
the month of the Distribution Date and (iii) any other unscheduled payments of
principal which were received on such Mortgage Loans during the related
Prepayment Period, other than Payoffs, Curtailments or Liquidation Principal.
Principal Only Certificates: As specified in the Preliminary Statement.
Principal Transfer Amount: For any Distribution Date for each
Undercollateralized Group, the excess, if any, of the aggregate Class Principal
Balance of the Class A Certificates related to such Undercollateralized Group
over the aggregate stated Principal Balance of the Mortgage
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Loans in such Loan Group (less, in the case of Loan Group II, the applicable
Class II-P Fraction thereof), in each case immediately prior to such
Distribution Date.
Principal Prepayment: Any payment of principal on a Mortgage Loan which
constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and each Loan Group,
the sum of all Payoffs and Curtailments relating to that Loan Group which were
received during the Prepayment Period.
Pro Rata Share: As to any Distribution Date and any Class of Subordinate
Certificates, the portion of the Subordinate Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance of such Class and the denominator
of which is the aggregate of the Class Principal Balances of the Subordinate
Certificates.
Prospectus Supplement: The Prospectus Supplement dated March 28, 2001
relating to the Offered Certificates.
PUD: Planned Unit Development.
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date. Any replacement insurer with respect to the Pool Insurance
Policy must be acceptable to the Rating Agencies as evidenced by written
acknowledgment from each Rating Agency that such replacement will not cause a
reduction, withdrawal or cancellation of the Ratings of the Certificates
(determined without regard to the Certificate Insurance Policy).
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by the
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of Exhibit M
(i) have a Stated Principal Balance, after deduction of the principal portion of
the Scheduled Payment due in the month of substitution (or, in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of, and not more than 10% less than
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing
interest at a rate no lower than and not more than 1% per annum higher than,
that of the Deleted Mortgage Loan; (iii) have a Combined Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; and (v) comply with each representation and warranty set
forth in Section 2.03(b).
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Rating Agency: S&P and Xxxxx'x. If either such organization or a successor
is no longer in existence, "Rating Agency" shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated by
the Depositor, notice of which designation shall be given to the Trustee and the
Servicer. References herein to a given rating or rating category of a Rating
Agency shall mean such rating category without giving effect to any modifiers.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the Rating Agencies (without regard to the
Certificate Insurance Policy).
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or greater than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Rate from the related Due Date as to which
interest was last paid or advanced (and not reimbursed) to the related
Certificateholders up to the related Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Net Mortgage Rate and to
principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, if the principal amount
due under the related Mortgage Note has been reduced, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the principal portion of the related Scheduled Payment has been
reduced.
Record Date: With respect to the Certificates (other than the Class I-A-1,
Class I-A-2, Class III-A-1 and Class III-A-2 Certificates) any Distribution
Date, the close of business on the last Business Day of the month preceding the
month in which such applicable Distribution Date occurs. With respect to the
Class I-A-1, Class I-A-2, Class III-A-1 and Class III-A-2 Certificates which are
Book-Entry Certificates and any Distribution Date, the close of business on the
Business Day preceding such Distribution Date.
Reference Bank Rate: With respect to any Interest Accrual Period, as
follows: the arithmetic mean (rounded upwards, if necessary, to the nearest one
sixteenth of a percent) of the offered rates for United States dollar deposits
for one month which are offered by the Reference Banks as of 11:00 A.M., London,
England time, on the second LIBOR Business Day prior to the first day of such
Interest Accrual Period to prime banks in the London interbank market for a
period of one month in amounts approximately equal to the sum of the Class
Principal Balances and the Notional Amounts, as applicable of the Class I-A-1,
Class I-A-2, Class III-A-1 and Class III-A-2 Certificates; provided that at
least two such Reference Banks provide such rate. If fewer than two offered
rates appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trustee, as
of 11:00 a.m., New York time, on such date for loans in U.S. Dollars to leading
European Banks for a period of one month in amounts approximately equal to the
aggregate Class Principal Balances and the Notional Amounts,
29
as applicable of the Class I-A-1, Class I-A-2, Class III-A-1 and Class III-A-2
Certificates. If no such quotations can be obtained, the Reference Bank Rate
shall be LIBOR applicable to the preceding Distribution Date; provided however,
that if, under the priorities indicated above, LIBOR for a Distribution Date
would be based on LIBOR for the previous Payment Date for the third consecutive
Distribution Date, the Trustee shall select an alternative comparable index over
which the Trustee has no control, used for determining one-month Eurodollar
lending rates that is calculated and published or otherwise made available by an
independent party.
Reference Banks: Barclays Bank PLC, National Westminster Bank and Abbey
National PLC.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC 1: The corpus of the trust created hereunder consisting of (i) the
Mortgage Loans and all interest and principal received or receivable on or with
respect thereto as set forth on Section 2.01(a); (ii) the Pool Insurance Policy;
(iii) the Collection Accounts and Certificate Account; (iv) property which
secured a Mortgage Loan and which has been acquired by foreclosure or deed in
lieu of foreclosure after the Cut-off Date; (v) the Certificate Insurance
Policy; (vi) the Special Hazard Insurance Policy and (vii) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
REMIC 2: The segregated pool of assets consisting of the Uncertificated
REMIC 1 Regular Interests conveyed in trust to the Trustee for the benefit of
the holders of the Uncertificated REMIC 2 Regular Interests and Class A-R-2
Certificates, with respect to which a separate REMIC election is to be made.
REMIC 3: The segregated pool of assets consisting of the Uncertificated
REMIC 2 Regular Interests conveyed in trust to the Trustee for the benefit of
the holders of the Regular Certificates and Class A-R-3 Certificates, with
respect to which a separate REMIC election is to be made.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at sections 860A through 860G
of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time.
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REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to this Agreement or purchased at the option of
the Servicer pursuant to this Agreement, an amount equal to the sum of (i) 100%
of the unpaid principal balance of the Mortgage Loan on the date of such
purchase, and (ii) accrued unpaid interest thereon at the applicable Mortgage
Rate from the date through which interest was last paid by the Mortgagor to the
Due Date in the month in which the Repurchase Price is to be distributed to
Certificateholders.
Request for Release: The Request for Release submitted by the Servicer to
the Trustee, substantially in the form of Exhibit M.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any Trust
Officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Agreement.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. For
purposes of Section 10.05(b) the address for notices to S&P shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Depositor, the Servicer and the Trustee.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which
shall give effect to any related Relief Act Reduction, Debt Service Reduction
and any Deficient Valuation that affects the amount of the monthly payment due
on such Mortgage Loan.
Second Mortgage Loan: A Mortgage Loan that is secured by a second lien on
the Mortgaged Property securing the related Mortgage Note.
Securities Act: The Securities Act of 1933, as amended.
Seller: DLJ Mortgage Capital Inc.
Senior Certificates: As specified in the Preliminary Statement.
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Senior Liquidation Amount: As to any Distribution Date and each Loan Group,
the aggregate, for each Mortgage Loan which became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, of the
lesser of (i) the Senior Percentage of the Stated Principal Balance of such
Mortgage Loan (exclusive of the related Class II-P Fraction thereof) and (ii)
the Senior Prepayment Percentage of the Liquidation Principal with respect to
such Mortgage Loan.
Senior Percentage: As to any Distribution Date and each Loan Group, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Classes of the related Senior Certificates
(other than the Class II-P Certificates) immediately prior to such date and the
denominator of which is the aggregate of the Stated Principal Balances of the
related Mortgage Loans (less the Class Principal Balance of the Class II-P
Certificates immediately prior to such Distribution Date with respect to Loan
Group II), as of the Due Date in the month such Distribution Date; provided,
however, in no event will the Senior Percentage for a Certificate Group exceed
100%.
Senior Prepayment Percentage: The Senior Prepayment Percentage for any
Distribution Date and each Loan Group occurring during the five years beginning
on the first Distribution Date will equal 100%. The Senior Prepayment Percentage
for any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date will be as follows: for any Distribution Date in the
first year thereafter, the Senior Percentage plus 70% of the Subordinate
Percentage for such Distribution Date; for any Distribution Date in the second
year thereafter, the Senior Percentage plus 60% of the Subordinate Percentage
for such Distribution Date; for any Distribution Date in the third year
thereafter, the Senior Percentage plus 40% of the Subordinate Percentage for
such Distribution Date; for any Distribution Date thereafter, the Senior
Percentage plus 20% of the Subordinate Percentage.
If for any of the foregoing Distribution Dates the related Senior
Percentage exceeds the initial Senior Percentage, the Senior Prepayment
Percentage for that Distribution Date will once again equal 100%.
Notwithstanding the foregoing no decrease in the reduction to the Senior
Prepayment Percentage for the related Senior Certificates as described above
will occur if as of the first Distribution Date as to which any such decrease
applies (i) the outstanding principal balance of the Mortgage Loans delinquent
60 days or more (averaged over the preceding six month period), as a percentage
of the aggregate Class Principal Balance of the Subordinate Certificates as of
such Distribution Date is equal to or greater than 50% or (ii) cumulative
Realized Losses with respect to the Mortgage Loans exceed (a) with respect to
the Distribution Date on the fifth anniversary of the first Distribution Date,
30% of the total as of the Closing Date of the aggregate Class Principal Balance
of the Class B Certificates plus the Initial Pool Insurance Policy Coverage
Amount (such total, the "Original Coverage Amount"), (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of such Original Coverage Amount, (c) with respect to the Distribution Date on
the seventh anniversary of the first Distribution Date, 40% of such Original
Coverage Amount, (d) with respect to the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of such Original Coverage Amount
and (e) with respect to the
32
Distribution Date on the ninth anniversary of the first Distribution Date, 50%
of such Original Coverage Amount.
However, any such reduction not permitted on the first Distribution Date as
to which any decrease applies will be permitted on any subsequent Distribution
Date on which the above criteria are not satisfied.
Senior Principal Distribution Amount: As to any Distribution Date and each
Loan Group, the sum of (i) the Senior Prepayment Percentage of the Principal
Payment Amount (exclusive of the portion thereof attributable to the related
Class II-P Principal Distribution Amount with respect to Loan Group II), (ii)
the Senior Prepayment Percentage of the Principal Prepayment Amount (exclusive
of the portion thereof attributable to the related Class II-P Principal
Distribution Amount with respect to Loan Group II), and (iii) the Senior
Liquidation Amount.
Servicer: Wilshire Credit Corporation, any successor in interest or any
successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicing Advance: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost (including reasonable
attorneys' fees and disbursements) of (i) the preservation, restoration and
protection of a Mortgaged Property, (ii) any expenses reimbursable to the
Servicer pursuant to Section 3.11 and any enforcement or judicial proceedings,
including foreclosures, and including any expenses incurred in relation to any
such proceedings that result from the Mortgage Loan being registered on the MERS
System (iii) the management and liquidation of any REO Property (including
default management and similar services, appraisal services and real estate
broker services); (iv) any expenses incurred by the Servicer in connection with
obtaining an environmental inspection or review pursuant to the second paragraph
of Section 3.11(a) and (v) compliance with the obligations under Section 3.09.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the month of such
Distribution Date (prior to giving effect to any Scheduled Payments due on such
Mortgage Loan on such Due Date), subject to reduction as provided in Section
3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate stated in
the Mortgage Loan Schedule.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
specimen signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date pursuant to this Agreement, as such
list may from time to time be amended.
33
Special Hazard Insurance Policy: The special hazard insurance policy, a
form of which is attached as Exhibit U to this Agreement, or any replacement
insurance policy obtained by the Servicer pursuant to Section 3.22, in the total
initial amount of $2,390,285.
Special Hazard Insurer: Initially, Travelers Indemnity Company of Illinois,
or any successor thereto or the named insurer in any replacement policy obtained
by the Servicer pursuant to Section 3.22.
Special Hazard Insurer Fee: The amount payable to the Special Hazard
Insurer in order to obtain coverage provided under the Special Hazard Insurance
Policy, such amount being, as to each Mortgage Loan and any Distribution Date,
an amount equal to one-twelfth of the Special Hazard Insurer Fee Rate on the
Stated Principal Balance of Mortgage Loan.
Special Hazard Insurer Fee Rate: With respect to any Mortgage Loan, 0.18%
per annum.
Special Hazard Loss: Any Realized Loss incurred on a Mortgage Loan, to the
extent that such Realized Loss was on account of direct physical damage to a
Mortgaged Property, but not including any loss caused by or resulting from a
standard hazard insurance policy or a flood insurance policy, if applicable, and
other than any Extraordinary Loss; and any shortfall in insurance proceeds for
partial damage due to the application of the co-insurance clauses contained in
hazard insurance policies.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: March 29, 2001.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous Curtailments and Liquidation
Proceeds allocable to principal (other than with respect to any Liquidated
Mortgage Loan) and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by the related Mortgagor; provided,
however, for purposes of calculating the Servicing Fee and the Trustee Fee, the
Stated Principal Balance of any REO will be the unpaid principal balance
immediately prior to foreclosure.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For Loan Group I, Loan Group II or Loan
Group III as of any Determination Date will equal the then outstanding aggregate
Stated Principal Balance of the mortgage loans in that Loan Group (less, with
respect to Loan Group II, the applicable Class II-P Fraction of the Stated
Principal Balance of any Class II-P Mortgage Loan) minus the then outstanding
aggregate Class Principal Balance of the related Class A Certificates and Class
R Certificates.
34
Subordinate Liquidation Amount: For any Distribution Date and each Loan
Group, the excess, if any, of the aggregate Liquidation Principal of all related
Mortgage Loans which became Liquidated Mortgage Loans during the calendar month
preceding the month of such Distribution Date over the sum of the related Senior
Liquidation Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date and each Loan Group,
100% minus the related Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and each
Loan Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinate Principal Distribution Amount: With respect to any Distribution
Date and the Subordinate Certificates for each Loan Group will equal (A) the sum
of (i) the Subordinate Percentage for the related Loan Group of the related
Principal Payment Amount (exclusive of the portion thereof attributable to the
Class II-P Principal Distribution Amount with respect to Loan Group II), (ii)
the Subordinate Prepayment Percentage for the related Loan Group of the related
Principal Prepayment Amount (exclusive of the portion thereof attributable to
the Class II-P Principal Distribution Amount with respect to Loan Group II), and
(iii) the related Subordinate Liquidation Amount less (B) the Class II-P
Deferred Amounts required to be paid to the Class II-P Certificates on such
Distribution Date with respect to Loan Group II.
Subservicer: Any Subservicer which is subservicing the Mortgage Loans
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 3.02.
Subservicing Agreement: An agreement between the Servicer and a Subservicer
for the servicing of the Mortgage Loans.
Substitution Adjustment Amount: As defined in Section 2.03.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulationss.1.860F-4(d) and temporary Treasury
regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person shall be the
Trustee.
Tax Matters Person Certificate: The Class A-R-1 Certificate, Class A-R-2
Certificate and Class A-R-3 Certificate, each with a Denomination of $0.05.
Total Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, an amount equal to the sum of the Interest Transfer
Amount and the Principal Transfer Amount for such Undercollateralized Group.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Residual Certificate.
Trust Fund: Collectively, REMIC 1, REMIC 2 and REMIC 3.
35
Trustee: The Chase Manhattan Bank and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, an amount
equal to one month's interest at the Trustee Fee Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the month of such
Distribution Date (prior to giving effect to any Scheduled Payments due on such
Mortgage Loan on such Due Date).
Trustee Fee Rate: With respect to any Distribution Date, 0.01% per annum.
Uncertificated Interest Distribution Amount: With respect to any
Distribution Date and any Uncertificated REMIC Regular Interest, the sum of (i)
one month's interest accrued during the related Interest Accrual Period at the
applicable Uncertificated Pass-Through Rate for such Class on the related
Uncertificated Principal Balance or Uncertificated Notional Amount, as
applicable, subject to reduction pursuant to Section 4.02(e), and (ii) any Class
Unpaid Interest Amounts for such Uncertificated REMIC Regular Interest.
Uncertificated Principal Balance: With respect to each Uncertificated REMIC
1 Regular Interest on any date of determination, the amount set forth in the
Preliminary Statement hereto minus the sum of (x) the aggregate of all amounts
previously deemed distributed with respect to such interest and applied to
reduce the Uncertificated Principal Balance thereof pursuant to Section
4.08(a)(ii) and (y) the aggregate of all reductions in Class Principal Balance
deemed to have occurred in connection with Realized Losses that were previously
deemed allocated to the Uncertificated Principal Balance of such Uncertificated
REMIC 1 Regular Interest pursuant to Section 4.08(d).
With respect to each Uncertificated REMIC 2 Regular Interest on any date of
determination, the amount set forth in the Preliminary Statement hereto minus
the sum of (x) the aggregate of all amounts previously deemed distributed with
respect to such interest and applied to reduce the Uncertificated Principal
Balance thereof pursuant to Section 4.09(a)(ii) and (y) the aggregate of all
reductions in Class Principal Balance deemed to have occurred in connection with
Realized Losses that were previously deemed allocated to the Uncertificated
Principal Balance of such Uncertificated REMIC 2 Regular Interest pursuant to
Section 4.09(d).
Uncertificated REMIC 1 Accrued Interest: With respect to any Uncertificated
REMIC 1 Regular Interest for any Distribution Date (other than Uncertificated
REMIC I Regular Interest LTPO-II), one month's interest at the related
Uncertificated Pass-Through Rate for such Distribution Date, accrued on the
Uncertificated Principal Balance immediately prior to such Distribution Date.
Uncertificated REMIC 2 Accrued Interest: With respect to any Uncertificated
REMIC 2 Regular Interest for any Distribution Date (other than Uncertificated
REMIC I Regular Interest MTPO-II), one month's interest at the related
Uncertificated Pass-Through Rate for such Distribution Date, accrued on the
Uncertificated Principal Balance or Uncertificated Notional Amount, as
applicable, immediately prior to such Distribution Date.
36
Uncertificated Pass-Through Rate:
(A) With respect to each Uncertificated REMIC 1 Regular Interest and each
Interest Accrual Period as follows:
(i) Uncertificated REMIC 1 Regular Interest LTA-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group I Mortgage Loans;
(ii) Uncertificated REMIC 1 Regular Interest LTB-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group I Mortgage Loans;
(iii) Uncertificated REMIC 1 Regular Interest LTP-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group I Mortgage Loans;
(iv) Uncertificated REMIC 1 Regular Interest LTR-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group I Mortgage Loans;
(v) Uncertificated REMIC 1 Regular Interest LTA-II, 6.80% per
annum;
(vi) Uncertificated REMIC 1 Regular Interest LTB-II, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group II Mortgage Loans other than the Class
II-P Mortgage Loans;
(vii) Uncertificated REMIC 1 Regular Interest LTPO-II, 0.00% per
annum;
(viii) Uncertificated REMIC 1 Regular Interest LTA-III, a per
annum rate equal to the weighted average of the Net
Mortgage Rates on the Group III Mortgage Loans; and
(ix) Uncertificated REMIC 1 Regular Interest LTB-III, a per
annum rate equal to the weighted average of the Net
Mortgage Rates on the Group III Mortgage Loans.
(B) With respect to each Uncertificated REMIC 2 Regular Interest and each
Interest Accrual Period as follows:
(i) Uncertificated REMIC 2 Regular Interest MTA-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates for the Group I Mortgage Loans;
37
(ii) Uncertificated REMIC 2 Regular Interest MTB1-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates for the Group I Mortgage Loans;
(iii) Uncertificated REMIC 2 Regular Interest MTB2-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates for the Group I Mortgage Loans;
(iv) Uncertificated REMIC 2 Regular Interest MTP-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates for the Group I Mortgage Loans;
(v) Uncertificated REMIC 2 Regular Interest MTR-I, a per annum
rate equal to the weighted average of the Net Mortgage
Rates on the Group I Mortgage Loans;
(vi) Uncertificated REMIC 2 Regular Interest MTA-II, a per annum
rate equal to the weighted average of the Uncertificated
Pass-Through Rates of Uncertificated REMIC 1 Regular
Interest LTA-II and Uncertificated REMIC 1 Regular Interest
LTB-II, weighted based on their respective Uncertificated
Principal Balances;
(vii) Uncertificated REMIC 2 Regular Interest MTB1-II, a per
annum rate equal to the weighted average of the
Uncertificated Pass-Through Rates of Uncertificated REMIC 1
Regular Interest LTA-II and Uncertificated REMIC 1 Regular
Interest LTB-II, weighted based on their respective
Uncertificated Principal Balances;
(viii) Uncertificated REMIC 2 Regular Interest MTB2-II, a per
annum rate equal to the weighted average of the
Uncertificated Pass-Through Rates of Uncertificated REMIC 1
Regular Interest LTA-II and Uncertificated REMIC 1 Regular
Interest LTB-II, weighted based on their respective
Uncertificated Principal Balances;
(ix) Uncertificated REMIC 2 Regular Interest MTPO-II, 0.00% per
annum;
(x) Uncertificated REMIC 2 Regular Interest MTA-III, a per
annum rate equal to the weighted average of the Net
Mortgage Rates for the Group III Mortgage Loans;
(xi) Uncertificated REMIC 2 Regular Interest MTB1-III, a per
annum rate equal to the weighted average of the Net
Mortgage Rates for the Group III Mortgage Loans; and
38
(xi) Uncertificated REMIC 2 Regular Interest MTB2-III, a per
annum rate equal to the weighted average of the Net
Mortgage Rates for the Group III Mortgage Loans.
Uncertificated REMIC 1 Regular Interest LTA-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTB-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTP-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTR-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTA-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTB-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTPO-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which does not bear
interest.
Uncertificated REMIC 1 Regular Interest LTA-III: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 1 Regular Interest LTB-III: An uncertificated partial
undivided beneficial ownership interest in REMIC 1 having a principal balance
equal to its
39
respective Uncertificated Principal Balance and which bears interest at a rate
equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTA-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB1-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB2-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTP-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTR-I: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTA-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB1-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB2-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTPO-II: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which does not bear
interest.
40
Uncertificated REMIC 2 Regular Interest MTA-III: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB1-III: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated REMIC 2 Regular Interest MTB2-III: An uncertificated partial
undivided beneficial ownership interest in REMIC 2 having a principal balance
equal to its respective Uncertificated Principal Balance and which bears
interest at a rate equal to its respective Uncertificated Pass-Through Rate.
Uncertificated Regular Interests: Collectively, the Uncertificated REMIC 1
and Uncertificated REMIC 2 Regular Interests.
Uncertificated REMIC 1 Regular Interests: Uncertificated REMIC 1 Regular
Interests LTA-I, LTB-I, LTP-I, LTR-I, LTA-II, LTB-II, LTPO-II, LTA-III and
LTB-III.
Uncertificated REMIC 2 Regular Interests: Uncertificated REMIC 2 Regular
Interests MTA-I, MTB1-I, MTB2-I, MTP-I, MTR-I, MTA-II, MTB1-II, MTB2-II,
MTPO-II, MTA-III, MTB1-III and MTB2-III.
Uncertificated REMIC 1 Regular Interest LTA-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTA-I for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTB-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTB-I for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTP-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTP-I for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTR-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTR-I for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTA-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTA-II for such
Distribution Date pursuant to Section 4.08(a).
41
Uncertificated REMIC 1 Regular Interest LTB-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTB-II for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTPO-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTPO-II for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTA-III Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTA- III for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 1 Regular Interest LTB-III Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 1 Regular Interest LTB- III for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated REMIC 2 Regular Interest MTA-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTA-I for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTB1-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB1-I for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTP-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTP1-I for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTB2-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB2-I for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTR-I Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTR-I for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTA-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTA-II for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTB1-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB1-II for such
Distribution Date pursuant to Section 4.09(a).
42
Uncertificated REMIC 2 Regular Interest MTB2-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB2-II for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTPO-II Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTPO-II for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTA-III Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTA-III for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTB1-III Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB1-III for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 2 Regular Interest MTB2-III Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC 2 Regular Interest MTB2-III for such
Distribution Date pursuant to Section 4.09(a).
Uncertificated REMIC 1 Regular Interest Distribution Amounts: The
Uncertificated REMIC 1 Regular Interest LTA-I Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTB-I Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTP-I Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTR-I Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTA-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTB-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTPO-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTA-III Distribution Amount and
Uncertificated REMIC 1 Regular Interest LTB-III Distribution Amount.
Uncertificated REMIC 2 Regular Interest Distribution Amounts: The
Uncertificated REMIC 2 Regular Interest MTA-I Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTB1-I Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTB2-I Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTP-I Distribution Amount, REMIC 2
Regular Interest MTR-I Distribution Amount, Uncertificated REMIC 2 Regular
Interest MTA-II Distribution Amount, Uncertificated REMIC 2 Regular Interest
MTB1-II Distribution Amount, Uncertificated REMIC 2 Regular Interest MTB2-II
Distribution Amount, Uncertificated REMIC 2 Regular Interest MTPO-II
Distribution Amount, Uncertificated REMIC 2 Regular Interest MTA-III
Distribution Amount, Uncertificated REMIC 2 Regular Interest MTB1-III
Distribution Amount and Uncertificated REMIC 2 Regular Interest MTB2-III
Distribution Amount.
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Undercollateralized Group: With respect to any Distribution Date: Loan
Group I will be an Undercollateralized Group if, immediately prior to such
Distribution Date, the Class Principal Balance of the Class I-A-1 Certificates
is greater than the aggregate Principal Balance of the Group I Loans; Loan Group
II will be an Undercollateralized Group if, immediately prior to such
Distribution Date, the Class Principal Balance of the Class II-A-1 Certificates
is greater than the aggregate Principal Balance of the Group II Loans (less the
applicable Class II-P Fraction thereof with respect to each Class II-P Mortgage
Loan); and Loan Group III will be an Undercollateralized Group if, immediately
prior to such Distribution Date, the Class Principal Balance of the Class
III-A-1 Certificates is greater than the aggregate Principal Balance of the
Group III Loans; provided, in each case, that the sum of the Class Principal
Balance related Class A Certificates has not been reduced to zero.
United States Person: A citizen or resident of the United States, a
corporation or a partnership (including an entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia (except, in the case of a partnership, to the extent provided in
regulations) provided that, for purposes solely of the restrictions on the
transfer of Class A-R Certificates, no partnership or other entity treated as a
partnership for United States federal income tax purposes shall be treated as a
United States Person unless all persons that own an interest in such partnership
either directly or through any entity that is not a corporation for United
States federal income tax purposes are required to be United States Persons or
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States Person notwithstanding the previous sentence.
Uninsured Loss: Any loss on the Certificates that results from a loss on
the Mortgage Loans resulting from defaults by the Mortgagors that was not
covered by the Pool Insurance Policy.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, (a)
0.25% of all Voting Rights shall be allocated to each Class of Class A-R
Certificates (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests) (b) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates (such Voting Rights to be allocated among the
holders of Certificates of each such Class in accordance with their respective
Percentage Interests) and the Class P Certificates, and (c) the remaining Voting
Rights shall be allocated among Holders of the remaining Classes of Certificates
in proportion to the Certificate Balances of their respective Certificates on
such date. All voting rights of the Holders of the Insured Certificates shall be
allocated to the Certificate Insurer.
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SECTION 1.02. Interest Calculations.
The calculation of the Trustee Fee, the Servicing Fee, the Pool Insurer
Fee, the Special Hazard Insurer Fee, the Loss Mitigation Fee, the Certificate
Insurer Premium and interest on all Classes of Certificates and on all
Uncertificated Interests shall be made on the basis of a 360-day year consisting
of twelve 30-day months. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx with one-half of one xxxxx being rounded down.
45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
in trust for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor (which does not include servicing
rights) in and to each Mortgage Loan, including all interest and principal
received or receivable on or with respect to such Mortgage Loans after the
Cut-off Date and all interest and principal payments on the Mortgage Loans
received prior to the Cut-off Date in respect of installments of interest and
principal due thereafter, but not including payments of principal and interest
due and payable on the Mortgage Loans on or before the Cut-off Date (other than
the rights of the Servicer to service the Mortgage Loans in accordance with this
Agreement). In addition, on or prior to the Closing Date, the Depositor shall
(i) cause the Certificate Insurer to deliver the Certificate Insurance Policy to
the Trustee, (ii) cause the Mortgage Pool Insurer to deliver the Pool Insurance
Policy to the Trustee and (iii) cause the Special Hazard Insurer to deliver the
Special Hazard Insurance Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in clause (a)
above, the Depositor has delivered or caused to be delivered to the Trustee or
its designated agent, the Custodian, for the benefit of the Certificateholders,
the documents and instruments with respect to each Mortgage Loan as assigned:
(i) (A) the original Mortgage Note of the Mortgagor in the name of the
Trustee or endorsed "Pay to the order of ________________ without recourse"
and signed in the name of the last named endorsee by an authorized officer,
together with all intervening endorsements showing a complete chain of
endorsements from the originator of the related Mortgage Loan to the last
endorsee or (B) with respect to any Lost Mortgage Note (as such term is
defined in the Pooling and Servicing Agreement), a lost note affidavit
stating that the original Mortgage Note was lost or destroyed, together
with a copy of such Mortgage Note;
(ii) the original Mortgage bearing evidence that such instruments have
been recorded in the appropriate jurisdiction where the Mortgaged Property
is located as determined by DLJMC (or, in lieu of the original of the
Mortgage or the assignment thereof, a duplicate or conformed copy of the
Mortgage or the instrument of assignment, if any, together with a
certificate of receipt from the Seller or the settlement agent who handled
the closing of the Mortgage Loan, certifying that such copy or copies
represent true and correct copy(ies) of the original(s) and that such
original(s) have been or are currently submitted to be recorded in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located) or a certification or receipt of the
recording authority evidencing the same;
46
(iii) the original Assignment of Mortgage, in blank, which assignment
appears to be in form and substance acceptable for recording and, in the
event that the related Seller acquired the Mortgage Loan in a merger, the
assignment must be by "[Seller], successor by merger to [name of
predecessor]", and in the event that the Mortgage Loan was acquired or
originated by the related Seller while doing business under another name,
the assignment must be by "[Seller], formerly known as [previous name]";
(iv) the original of any intervening assignment of the Mortgage not
included in (iii) above, including any warehousing assignment, with
evidence of recording thereon (or, in lieu of the original of any such
intervening assignment, a duplicate or conformed copy of such intervening
assignment together with a certificate of receipt from the related Seller
or the settlement agent who handled the closing of the Mortgage Loan,
certifying that such copy or copies represent true and correct copy(ies) of
the original(s) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located) or a
certification or receipt of the recording authority evidencing the same;
(v) an original of any related security agreement (if such item is a
document separate from the Mortgage) and the originals of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if such
item is a document separate from the Mortgage) executed by the last
assignee in blank;
(vii) the originals of any assumption, modification, extension or
guaranty agreement with evidence of recording thereon, if applicable (or,
in lieu of the original of any such agreement, a duplicate or conformed
copy of such agreement together with a certificate of receipt from the
related Seller or the settlement agent who handled the closing of the
Mortgage Loan, certifying that such copy(ies) represent true and correct
copy(ies) of the original(s) and that such original(s) have been or are
currently submitted to be recorded in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is
located), or a certification or receipt of the recording authority
evidencing the same; and
(viii) if the Mortgage Note or Mortgage or any other document or
instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the original power of attorney or other instrument
that authorized and empowered such person to sign bearing evidence that
such instrument has been recorded, if so required, in the appropriate
jurisdiction where the Mortgaged Property is located as determined by DLJMC
(or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the related Seller or the
settlement agent who handled the closing of the Mortgage Loan, certifying
that such copy(ies) represent true and complete copy(ies)of the original(s)
and that such original(s) have been or are currently submitted to be
recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged
47
Property is located) or a certification or receipt of the recording
authority evidencing the same.
In the event the Seller delivers to the Trustee certified copies of any
document or instrument set forth in 2.01(b) because of a delay caused by the
public recording office in returning any recorded document, the Seller shall
deliver to the Trustee, within 60 days of the Closing Date, an Officer's
Certificate which shall (i) identify the recorded document, (ii) state that the
recorded document has not been delivered to the Trustee due solely to a delay
caused by the public recording office, and (iii) state the amount of time
generally required by the applicable recording office to record and return a
document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor cannot
deliver (a) the original recorded Mortgage, (b) all interim recorded assignments
or (c) the lender's title policy (together with all riders thereto) satisfying
the requirements set forth above, concurrently with the execution and delivery
hereof because such document or documents have not been returned from the
applicable public recording office in the case of clause (a) or (b) above, or
because the title policy has not been delivered to the Seller or the Depositor
by the applicable title insurer in the case of clause (c) above, the Depositor
shall promptly deliver to the Trustee, in the case of clause (a) or (b) above,
such original Mortgage or such interim assignment, as the case may be, with
evidence of recording indicated thereon upon receipt thereof from the public
recording office, or a copy thereof, certified, if appropriate, by the relevant
recording office.
As promptly as practicable subsequent to such transfer and assignment, and
in any event, within thirty (30) days thereafter, the Trustee shall or shall
cause the Custodian to (i) affix the Trustee's name to each Assignment of
Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper
form for recording in the appropriate public office for real property records
within thirty (30) days after receipt thereof and (iii) cause to be delivered
for recording in the appropriate public office for real property records the
assignments of the Mortgages to the Trustee, except that, with respect to any
assignment of a Mortgage as to which the Trustee or the Custodian as applicable
has not received the information required to prepare such assignment in
recordable form, the Trustee's obligation to do so and to deliver the same for
such recording shall be as soon as practicable after receipt of such information
and in any event within thirty (30) days after the receipt thereof, and the
Trustee or the Custodian as applicable need not cause to be recorded (a) any
assignment which relates to a Mortgage Loan in any jurisdiction under the laws
of which, as evidenced by an Opinion of Counsel delivered by the Seller (at the
Seller's expense) to the Trustee within 20 days of the Closing Date, acceptable
to the Rating Agencies, the recordation of such assignment is not necessary to
protect the Trustee's and the Certificateholders' interest in the related
Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as the mortgagee of record solely as nominee
for the Seller and its successors and assigns.
In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, the Depositor further agrees that it will cause, at the
Depositor's own expense, on or prior to the Closing Date, the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the Depositor to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with
48
this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE SPECIFIC
CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the
Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field
"Pool Field" which identifies the series of the Certificates issued in
connection with such Mortgage Loans. The Depositor further agrees that it will
not, and will not permit the Servicer to, and the Servicer agrees that it will
not, alter the codes referenced in this paragraph with respect to any Mortgage
Loan during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
(c) The Trustee is authorized to appoint any bank or trust company approved
by the Depositor as Custodian of the documents or instruments referred to in
this Section 2.01, and to enter into a Custodial Agreement for such purpose and
any documents delivered thereunder shall be delivered to the Custodian and any
Officer's Certificates delivered with respect thereto shall be delivered to the
Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that the
conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in
this Section 2.01 be, and be construed as, a sale of the Mortgage Loans by the
Depositor to the Trustee. It is, further, not the intention of the parties to
this Agreement that such conveyance be deemed a pledge of the Mortgage Loans by
the Depositor to the Trustee to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the intent of the parties
to this Agreement, the Mortgage Loans are held to be the property of the
Depositor, or if for any other reason this Agreement is held or deemed to create
a security interest in the Mortgage Loans then (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code; (b) the conveyance provided for in this
Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee for
the benefit of the Certificateholders of a security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of 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, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Trustee or
any Custodian of such items of property and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "in possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the New York 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 Trustee
for the benefit of the Certificateholders for the purpose of perfecting such
security interest under applicable law (except that nothing in this clause (e)
shall cause any person to be deemed to be an agent of the Trustee for any
purpose other than for perfection of such security interests unless, and then
only to the extent, expressly appointed and authorized by the Trustee in
writing). The Depositor and the Trustee, upon directions from the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security
49
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement.
SECTION 2.02. Acceptance by the Trustee.
The Trustee acknowledges receipt by the Custodian of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit G
and declares that the Custodian on its behalf holds and will hold the documents
delivered to the Custodian constituting the Mortgage Files, and that it or the
Custodian holds or will hold such other assets as are included in the Trust
Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
through the Custodian of the Mortgage Notes in the State of Texas, unless
otherwise permitted by the Rating Agencies.
The Custodian agrees to execute and deliver on the Closing Date to the
Depositor, the Seller, the Certificate Insurer and the Servicer an Initial
Certification in the form annexed hereto as Exhibit G. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Custodian will acknowledge that such documents appear regular
on their face and relate to such Mortgage Loan. Neither the Trustee nor the
Custodian shall be under no duty or obligation to inspect, review or examine
said documents, instruments, certificates or other papers to determine that the
same are genuine, enforceable or appropriate for the represented purpose or that
they have actually been recorded in the real estate records or that they are
other than what they purport to be on their face.
Not later than 90 days after the Closing Date, the Custodian is required to
deliver to the Depositor, the Seller, the Certificate Insurer, the Trustee and
the Servicer a Final Certification in the form annexed hereto as Exhibit H, with
any applicable exceptions noted thereon.
If, in the course of such review, the Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, the Custodian will list such as an exception in the Final
Certification; provided, however, that the Trustee or the Custodian shall not
make any determination as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as noteholder
or assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to the
assignee thereof under the mortgage to which the assignment relates.
The Seller shall promptly correct or cure such defect within 90 days from
the date it was so notified of such defect and, if the Seller does not correct
or cure such defect within such period, the Seller shall either (a) substitute
for the related Mortgage Loan a Qualified Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03, or (b) purchase such Mortgage Loan from the Trustee
within 90 days from the date the Seller was notified of such defect in writing
at the Repurchase Price of such Mortgage Loan; provided, however, that in no
event shall such substitution or repurchase occur more than 540 days from the
Closing Date, except that if the substitution or repurchase of a Mortgage Loan
pursuant to this provision is required by reason of a delay in delivery of any
documents by the appropriate recording office, then such substitution or
repurchase shall occur within 720 days from the Closing Date; and further
provided, that the Seller shall have no liability for recording any
50
Assignment of Mortgage in favor of the Trustee or for the Trustee's failure to
record such Assignment of Mortgage, and the Seller shall not be obligated to
repurchase or cure any Mortgage Loan solely as a result of the Trustee's failure
to record such Assignment of Mortgage. The Trustee shall deliver written notice
to each Rating Agency and the Certificate Insurer within 270 days from the
Closing Date indicating each Mortgage Loan (a) the Assignment of Mortgage which
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of such Mortgage Loan. Such notice
shall be delivered every 90 days thereafter until the Assignment of Mortgage for
the related Mortgage Loan is returned to the Trustee or the dispute as to
location or status has been resolved. Any such substitution pursuant to (a)
above shall not be effected prior to the delivery to the Trustee of the Opinion
of Counsel required by Section 2.05 hereof, if any, and any substitution
pursuant to (a) above shall not be effected prior to the additional delivery to
the Trustee of a Request for Release substantially in the form of Exhibit M. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Repurchase Price for any such Mortgage
Loan shall be deposited by the Seller in the Certificate Account on or prior to
the Business Day immediately preceding such Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit M hereto, the Trustee
shall release the related Mortgage File to the Seller and shall execute and
deliver at such entity's request such instruments of transfer or assignment
prepared by such entity, in each case without recourse, as shall be necessary to
vest in such entity, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto. In furtherance of the foregoing, if the Seller is not
a member of MERS and repurchases a Mortgage Loan which is registered on the
MERS(R) System, the Seller, at its own expense and without any right of
reimbursement, shall cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and
shall cause such Mortgage to be removed from registration on the MERS(R) System
in accordance with MERS' rules and regulations.
It is understood and agreed that the obligation of the Seller to cure,
substitute for or to repurchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee, the Depositor and any Certificateholder against
the Seller.
SECTION 2.03. Representations and Warranties of the Seller and Servicer.
(a) The Seller hereby makes the representations and warranties applicable
to it set forth in Schedule II hereto, and by this reference incorporated
herein, to the Depositor and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified.
(b) Wilshire, in its capacity as the Servicer, hereby makes the
representations and warranties set forth in Schedule III hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the applicable Cut-off Date.
(c) Wilshire, in its capacity as the Servicer, will use its reasonable
efforts to become a member of MERS in good standing, and will comply in all
material respects with the rules
51
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS.
(d) The Depositor hereby assigns the representations and warranties set
forth in Schedule IV as applicable hereto, and by this reference incorporated
herein, to the Trustee, as of the Closing Date, or if so specified therein, as
of the Cut-off Date or such other date as may be specified.
(e) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan
(determined without regard to the Certificate Insurance Policy), the party
discovering such breach shall give prompt notice thereof to the other parties
and to the Certificate Insurer. The Seller hereby covenants that within 90 days
of the earlier of its discovery or its receipt of written notice from any party
of a breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders (determined without regard to the Certificate Insurance
Policy) in any Mortgage Loan sold by the Seller to the Depositor, it shall cure
such breach in all material respects, and if such breach is not so cured, shall,
(i) if such 90-day period expires prior to the second anniversary of the Closing
Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund
and substitute in its place a Qualified Substitute Mortgage Loan, in the manner
and subject to the conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan from the Trustee at the Repurchase Price in the manner
set forth below; provided, however, that any such substitution pursuant to (i)
above shall not be effected prior to the delivery to the Trustee of the Opinion
of Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery to
the Trustee of a Request for Release substantially in the form of Exhibit M and
the Mortgage File for any such Qualified Substitute Mortgage Loan. The Seller
shall promptly reimburse the Trustee for any actual out-of-pocket expenses
reasonably incurred by the Trustee in respect of enforcing the remedies for such
breach. With respect to any representation and warranties described in this
Section which are made to the best of a Seller's knowledge if it is discovered
by either the Depositor, the Seller or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein (determined without regard to the Certificate
Insurance Policy), notwithstanding the Seller's lack of knowledge with respect
to the substance of such representation or warranty, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
With respect to any Qualified Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and such
other documents and agreements as are required by Section 2.01(b), with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Seller shall
amend the Mortgage Loan Schedule for the benefit of the Certificateholders to
52
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the
amended Mortgage Loan Schedule to the Trustee and the Certificate Insurer. Upon
such substitution, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects, and the Seller shall be
deemed to have made with respect to such Qualified Substitute Mortgage Loan or
Loans, as of the date of substitution, the representations and warranties made
pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with such substitution as described in the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to the
Seller and shall execute and deliver at the Seller's direction such instruments
of transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Trustee
shall determine the amount (if any) by which the aggregate principal balance of
all such Qualified Substitute Mortgage Loans as of the date of substitution is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of the scheduled principal portion of the monthly
payments due in the month of substitution). The amount of such shortage (the
"Substitution Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Deleted Mortgage Loans shall be
deposited in the Certificate Account by the Seller on or before the Business Day
immediately preceding the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be repurchased
or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan, the
Repurchase Price therefor shall be deposited in the Certificate Account on or
before the Business Day immediately preceding the Distribution Date in the month
following the month during which the Seller became obligated hereunder to
repurchase or replace such Mortgage Loan and upon such deposit of the Repurchase
Price, the delivery of the Opinion of Counsel if required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit M hereto, the Trustee
shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or substitute any Mortgage Loan
as to which a breach has occurred and is continuing shall constitute the sole
remedy against such Persons respecting such breach available to
Certificateholders, the Depositor or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the benefit
of the Certificateholders.
SECTION 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
53
The Depositor hereby represents and warrants to the Trustee with respect to
the Mortgage Loans that, as of the Closing Date, assuming good title has been
conveyed to the Depositor, the Depositor had good title to the Mortgage Loans
and Mortgage Notes, and did not encumber the Mortgage Loans during its period of
ownership thereof, other than as contemplated by the Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no substitution
pursuant to Section 2.02 shall be made more than 90 days after the Closing Date
unless the Seller delivers to the Trustee and the Certificate Insurer an Opinion
of Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii)
cause any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee (or the Custodian) acknowledges receipt of the items described
in Section 2.02 of this Agreement and the documents identified in the Initial
Certification in the form annexed hereto as Exhibit G and, concurrently with
such receipt, has executed and delivered to or upon the order of the Depositor,
the Certificates in authorized denominations evidencing directly or indirectly
the entire ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and exercise the rights referred to above for the benefit of all present
and future Holders of the Certificates and to perform the duties set forth in
this Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "tax matters person" with respect to each of REMIC 1, REMIC 2 and
REMIC 3 shall be the Trustee and the Trustee shall hold the related Tax Matters
Person Certificate. The fiscal year for each REMIC shall be the calendar year.
SECTION 2.08. Covenants of the Servicer.
The Servicer hereby covenants to the Depositor and the Trustee as follows:
(a) The Servicer shall comply in the performance of its obligations under
this Agreement with all reasonable rules and requirements of the Pool Insurer
under the Pool Insurance Policy and of the Special Hazard Insurer under the
Special Hazard Insurance Policy; and
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(b) No written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by the Servicer pursuant to this Agreement
will contain any untrue statement of a material fact.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement and
with Accepted Servicing Practices. Notwithstanding anything in this Agreement,
any Servicing Agreement or any Loss Mitigation Advisory Agreement to the
contrary, the Servicer shall have no duty or obligation to enforce any Loss
Mitigation Advisory Agreement or to supervise, monitor or oversee the activities
of the Loss Mitigation Advisor under its Loss Mitigation Advisory Agreement with
respect to any action taken or not taken by a Servicer pursuant to a
recommendation of the Loss Mitigation Advisor. In connection with such servicing
and administration, the Servicer shall have full power and authority, acting
alone and/or through Subservicers as provided in Section 3.02 hereof, to do or
cause to be done any and all things that it may deem necessary or desirable in
connection with such servicing and administration, including but not limited to,
the power and authority, subject to the terms hereof (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages
(but only in the manner provided in this Agreement), (iii) to collect any
Insurance Proceeds and other Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan; provided that the Servicer shall not take any action
that is inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee or the Certificateholders under this Agreement. The
Trustee will provide a limited power of attorney to the Servicer, prepared by
the Servicer and reasonably acceptable to the Trustee, to permit the Servicer to
act on behalf of the Trustee under this Agreement. The Servicer hereby
indemnifies the Trustee for all costs and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such power of attorney. The
Servicer shall represent and protect the interests of the Trust Fund in the same
manner as it protects its own interests in mortgage loans in its own portfolio
in any claim, proceeding or litigation regarding a Mortgage Loan. The Servicer
further is hereby authorized and empowered in its own name or in the name of the
Subservicer, when such Servicer or the Subservicer, as the case may be, believes
it is appropriate in its best judgment to register any Mortgage Loan on the
MERS(R) System, or cause the removal from the registration of any Mortgage Loan
on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any expenses incurred in connection with the actions
described in the preceding sentence shall be borne by the Servicer in accordance
with Section 3.14, with no right of reimbursement; provided, that if, as a
result of MERS discontinuing or becoming unable to continue operations in
connection with the MERS(R) System, it becomes necessary to remove any Mortgage
Loan from registration on the MERS(R) System and to arrange for the assignment
of the related
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Mortgages to the Trustee, then any related expenses shall be reimbursable to the
related Servicer. Notwithstanding the foregoing, subject to Section 3.05(a), the
Servicers shall not make or permit any modification, waiver or amendment of any
Mortgage Loan that would both constitute a sale or exchange of such Mortgage
Loan within the meaning of Section 1001 of the Code and any proposed, temporary
or final regulations promulgated thereunder (other than in connection with a
proposed conveyance or assumption of such Mortgage Loan that is treated as a
Principal Prepayment in Full pursuant to Section 3.10 hereof) which would cause
any of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a REMIC. Without
limiting the generality of the foregoing, the Servicer, in its own name or in
the name of the Depositor and the Trustee, is hereby authorized and empowered by
the Depositor and the Trustee, when the Servicer believes it appropriate in its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable the Servicer to service
and administer the Mortgage Loans to the extent that the Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents and a written request signed by an
authorized officer, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Servicer.
In accordance with the standards of the preceding paragraph, and subject to
the terms of the Special Hazard Insurance Policy, the Servicer shall advance or
cause to be advanced funds as necessary for the purpose of effecting the payment
of taxes and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the Mortgagors
pursuant to Section 3.06, and further as provided in Section 3.08. The costs
incurred by the Servicer, if any, in effecting the timely payments of taxes and
assessments on the Mortgaged Properties and related insurance premiums shall
not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
Subject to Section 3.16, the Trustee shall execute, at the written request
of the Servicer, and furnish to the Servicer and any Subservicer such documents
as are necessary or appropriate to enable the Servicer or any Subservicer to
carry out their servicing and administrative duties hereunder, and the Trustee
hereby grants to the Servicer a power of attorney to carry out such duties. The
Trustee shall not be liable for the actions of the Servicer or any Subservicers
under such powers of attorney.
If the Mortgage relating to a Mortgage Loan had a lien senior to the
Mortgage Loan on the related Mortgaged Property as of the Cut-off Date, then the
Servicer, in such capacity, may consent to the refinancing of the prior senior
lien, provided that the following requirements are met:
(i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan
is no higher than the Combined Loan-to-Value Ratio prior to such
refinancing; and
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(ii) the interest rate, or, in the case of an adjustable rate existing
senior lien, the maximum interest rate, for the loan evidencing the
refinanced senior lien is no more than 2.0% higher than the interest rate
or the maximum interest rate, as the case may be, on the loan evidencing
the existing senior lien immediately prior to the date of such refinancing;
and
(iii) the loan evidencing the refinanced senior lien is not subject to
negative amortization.
SECTION 3.02. Subservicing; Enforcement of the Obligations of Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf of the
related Servicer in accordance with the servicing provisions of this Agreement,
provided that the Subservicer is a FNMA-approved lender or a FHLMC
seller/servicer in good standing. The Servicer may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Servicer of the
Subservicer shall not release the Servicer from any of its obligations hereunder
and the Servicer shall remain responsible hereunder for all acts and omissions
of the Subservicer as fully as if such acts and omissions were those of the
Servicer. The Servicer shall pay all fees and expenses of any Subservicer
engaged by the Servicer from its own funds.
Notwithstanding the foregoing, the Servicer shall be entitled to outsource
one or more separate servicing functions to a Person (each, an "Outsourcer")
that does not meet the eligibility requirements for a Subservicer, so long as
such outsourcing does not constitute the delegation of the Servicer's obligation
to perform all or substantially all of the servicing of the related Mortgage
Loans to such Outsourcer. In such event, the use by the Servicer of any such
Outsourcer shall not release the Servicer from any of its obligations hereunder
and the Servicer shall remain responsible hereunder for all acts and omissions
of such Outsourcer as fully as if such acts and omissions were those of the
Servicer, and the Servicer shall pay all fees and expenses of the Outsourcer
from the Servicer's own funds.
(b) At the cost and expense of the Servicer, without any right of
reimbursement from the Depositor, Trustee, the Trust Fund, or the applicable
Collection Account, the Servicer shall be entitled to terminate the rights and
responsibilities of its Subservicer and arrange for any servicing
responsibilities to be performed by a successor Subservicer meeting the
requirements set forth in Section 3.02(a), provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Servicer, at the
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that the Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 7.01, and if requested to do so by
the Trustee, the Servicer shall at its own cost and expense terminate the rights
and responsibilities of its Subservicer as soon as is reasonably possible. The
Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of its Subservicer from the Servicer's
own funds without any right of reimbursement from the Depositor, Trustee, the
Trust Fund, or the applicable Collection Account.
(c) Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and its Subservicer, the
Servicer and its Outsourcer, or any reference herein to actions taken through
the Subservicer, the Outsourcer, or
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otherwise, the Servicer shall not be relieved of its obligations to the
Depositor, Trustee or Certificateholders and shall be obligated to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the related Mortgage Loans. The Servicer shall be entitled to
enter into an agreement with its Subservicer and Outsourcer for indemnification
of the Servicer or Outsourcer, as applicable, by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a related Subservicer or Outsourcer, as
applicable, regardless of whether such payments are remitted by the Subservicer
or Outsourcer, as applicable, to the Servicer.
Any Subservicing Agreement and any other transactions or services relating
to the Mortgage Loans involving a Subservicer or an Outsourcer shall be deemed
to be between the Subservicer or an Outsourcer, and the Servicer alone, and the
Depositor and the Trustee shall have no obligations, duties or liabilities with
respect to a Subservicer including no obligation, duty or liability of the
Depositor and Trustee or the Trust Fund to pay a Subservicer's fees and
expenses.
SECTION 3.03. [Reserved].
SECTION 3.04. Trustee to Act as Servicer.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Trustee shall not be (i)
liable for losses of the Servicer pursuant to Section 3.09 hereof or any acts or
omissions of the related predecessor Servicer hereunder, (ii) obligated to make
Advances if it is prohibited from doing so by applicable law or (iii) deemed to
have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Section 7.02 hereof.
The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement or substitute Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and hereunder by the Servicer and
an accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
Subservicing Agreement to the assuming party.
SECTION 3.05. Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and interest on
all Mortgage Loans have been paid in full or such Mortgage Loans have become
Liquidated Mortgage Loans, the Servicer shall proceed in accordance with the
customary and usual standards of practice of prudent mortgage loan servicers to
collect all payments due under each of the related Mortgage Loans when the same
shall become due and payable to the extent consistent with this Agreement and
shall take special care with respect to Mortgage Loans for which the Servicer
collects escrow
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payments in ascertaining and estimating Escrow Payments and all other charges
that will become due and payable with respect to the Mortgage Loans and the
Mortgaged Properties, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and payable.
Consistent with the terms of this Agreement, the Servicer may also waive, modify
or vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in such Servicer's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the Certificateholders
(taking into account any estimated Realized Loss that might result absent such
action); provided, however, that the Servicer may not modify materially or
permit any Subservicer to modify any Mortgage Loan, including without limitation
any modification that would change the Mortgage Rate, forgive the payment of any
principal or interest (unless in connection with the liquidation of the related
Mortgage Loan or except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan), or
extend the final maturity date of such Mortgage Loan, unless such Mortgage Loan
is in default or, in the judgment of the related Servicer, such default is
reasonably foreseeable; and that no such modification shall reduce the interest
rate on a Mortgage Loan below the rate at which the Servicing Fee with respect
to such Mortgage Loan accrues; provided however, no such modification will be
granted without the prior consent of the Pool Insurer if so required in the Pool
Insurance Policy or the Special Hazard Insurer if so required in the Special
Hazard Insurance Policy. In the event of any such arrangement, the related
Servicer shall make Advances on the related Mortgage Loan in accordance with the
provisions of Section 4.01 during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements. The Servicer shall not be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
The Servicer shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Collection Accounts,
in the form of time deposit or demand accounts, titled "[Servicer's name], in
trust for the Holders of Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Mortgage Pass-Through Certificates, Series 2001-S6" or, if established and
maintained by a Subservicer on behalf of the Servicer, "[Subservicer's name], in
trust for [Servicer's name]" or "[Subservicer's name], as agent, trustee and/or
bailee of principal and interest custodial account for [Servicer's name], its
successors and assigns, for various owners of interest in [Servicer's name]
mortgage-backed pools". Each Collection Account shall be an Eligible Account.
Any funds deposited in a Collection Account shall at all times be either
invested in Eligible Investments or shall be fully insured to the full extent
permitted under applicable law. Funds deposited in a Collection Account may be
drawn on by the Servicer in accordance with Section 3.08.
The Servicer shall deposit in the Collection Account on a daily basis and
retain therein, the following collections remitted by Subservicers or payments
received by the Servicer and payments made by the Servicer subsequent to the
Cut-off Date, other than payments of principal and interest due on or before the
Cut-off Date:
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(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the per annum rate equal to the Mortgage Rate reduced by the
related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the Mortgage Loans;
(iv) all Insurance Proceeds on the Mortgage Loans including amounts
required to be deposited pursuant to Section 3.09 (other than proceeds to
be held in the Escrow Account and applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Section 3.09);
(v) all Advances made by the Servicer pursuant to Section 4.01;
(vi) with respect to each Principal Prepayment on the Mortgage Loans,
the Prepayment Interest Shortfall, if any, for the Prepayment Period. The
aggregate of such deposits shall be made from the Servicer's own funds,
without reimbursement therefor, up to a maximum amount per month equal to
the Compensating Interest Payment, if any, for the Mortgage Loans and that
Distribution Date;
(vii) any amounts required to be deposited by the Servicer in respect
of net monthly income from REO Property pursuant to Section 3.11; and
(viii) any other amounts required to be deposited hereunder including
all Prepayment Penalties.
The foregoing requirements for deposit into each Collection Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by the
Servicer into such Collection Account. In addition, notwithstanding the
provisions of this Section 3.05, the Servicer may deduct from amounts received
by it, prior to deposit to the applicable Collection Account, any portion of any
Scheduled Payment representing the applicable Servicing Fee. In the event that
the Servicer shall remit any amount not required to be remitted, it may at any
time withdraw or direct the institution maintaining the related Collection
Account to withdraw such amount from such Collection Account, any provision
herein to the contrary notwithstanding. Such withdrawal or direction may be
accomplished by delivering written notice thereof to the Trustee or such other
institution maintaining such Collection Account which describes the amounts
deposited in error in such Collection Account. The Servicer shall maintain
adequate records with respect to all withdrawals made by it pursuant to this
Section. All funds deposited in a Collection Account shall be held in trust for
the Certificateholders until withdrawn in accordance with Section 3.08.
On or prior to the Closing Date, the Trustee shall establish and maintain,
on behalf of the Certificateholders, the Certificate Account. The Trustee shall,
promptly upon receipt, deposit in the Certificate Account and retain therein the
following:
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(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.08(viii);
(ii) any amount deposited by the Trustee pursuant to Section 3.05(e)
in connection with any losses on Eligible Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that the Servicer shall remit to the Trustee any amount not
required to be remitted, it may at any time direct the Trustee to withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Certificate Account. All funds deposited in the Certificate Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08(b).
In no event shall the Trustee incur liability for withdrawals from the
Certificate Account at the direction of the Servicer.
Each institution at which a Collection Account or the Certificate Account
is maintained shall either hold such funds on deposit uninvested or shall invest
the funds therein as directed in writing by the Servicer or the Trustee,
respectively, in Eligible Investments, which shall mature not later than (i) in
the case of a Collection Account, the second Business Day immediately preceding
the related Distribution Date and (ii) in the case of the Certificate Account,
the Business Day immediately preceding the Distribution Date and, in each case,
shall not be sold or disposed of prior to its maturity. All income and gain net
of any losses realized from any such balances or investment of funds on deposit
in a Collection Account shall be for the benefit of the Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses in a Collection Account incurred in any such account in
respect of any such investments shall promptly be deposited by the Servicer in
the related Collection Account. The Trustee in its fiduciary capacity shall not
be liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in a Collection Account. All income and gain
net of any losses realized from any such investment of funds on deposit in the
Certificate Account shall be for the benefit of the Trustee as compensation and
shall be remitted to it monthly as provided herein. The amount of any realized
losses in the Certificate Account incurred in any such account in respect of any
such investments shall promptly be deposited by the Trustee in the Certificate
Account.
The Servicer shall give notice to the Trustee, the Seller, each Rating
Agency, the Certificate Insurer and the Depositor of any proposed change of the
location of the related Collection Account prior to any change thereof. The
Trustee shall give notice to the Servicer, the Seller, each Rating Agency, the
Certificate Insurer and the Depositor of any proposed change of the location of
the Certificate Account prior to any change thereof.
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SECTION 3.06. Establishment of and Deposits to Escrow Accounts; Permitted
Withdrawals from Escrow Accounts; Payments of Taxes, Insurance and Other
Charges.
To the extent required by the related Mortgage Note and not violative of
current law, the applicable Servicer shall segregate and hold all funds
collected and received pursuant to a Mortgage Loan constituting Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts, in the form of time deposit
or demand accounts, titled, "Credit Suisse First Boston Mortgage Securities
Corp., CSFB Mortgage Pass-Through Certificates, Series 2001-S6" or, if
established and maintained by a Subservicer on behalf of the Servicer,
"[Subservicer's name], in trust for [Servicer's name]" or "[Subservicer's name],
as agent, trustee and/or bailee of taxes and insurance custodial account for
[Servicer's name], its successors and assigns, for various owners of interest in
[Servicer's name] mortgage-backed pools". The Escrow Accounts shall be Eligible
Accounts. Funds deposited in the Escrow Account may be drawn on by the related
Servicer in accordance with Section 3.06(b). The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit P-1 hereto, in the
case of an account established with the Servicer, or by a letter agreement in
the form of Exhibit P-2 hereto, in the case of an account held by a depository
other than the Servicer. A copy of such certification shall be furnished to the
Depositor and Trustee.
(a) The Servicer shall deposit in its Escrow Account or Accounts on a daily
basis within one Business Day of receipt and retain therein:
(i) all Escrow Payments collected on account of the related Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds which are to be
applied to the restoration or repair of any Mortgaged Property.
The Servicer shall make withdrawals from the Escrow Account only to effect
such payments as are required under this Agreement, as set forth in Section
3.06(d). The Servicer shall be entitled to retain any interest paid on funds
deposited in the related Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the Mortgagor. To
the extent required by law, the applicable Servicer shall pay interest on
escrowed funds to the Mortgagor notwithstanding that the Escrow Account may be
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
(b) Withdrawals from the Escrow Account or Accounts may be made by the
related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Servicer for any Servicing Advances made by the
Servicer pursuant to Section 3.06(e) with respect to a related Mortgage
Loan, but only from amounts
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received on the related Mortgage Loan which represent late collections of
Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the related Collection Account to reduce the
principal balance of the related Mortgage Loan in accordance with the terms
of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the related Mortgaged
Property in accordance with the procedures outlined in Section 3.09(e);
(vi) to pay to the Servicer, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in such Escrow Account;
and
(vii) to clear and terminate such Escrow Account on the termination of
this Agreement.
SECTION 3.07. Access to Certain Documentation and Information Regarding the
Mortgage Loans; Inspections.
(a) The Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Servicer.
(b) The Servicer shall inspect the Mortgaged Properties as often as deemed
necessary by the Servicer in the Servicer's sole discretion, to assure itself
that the value of such Mortgaged Property is being preserved. In addition, if
any Mortgage Loan is more than 60 days delinquent, the Servicer shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as may
be required by the primary mortgage guaranty insurer. The Servicer shall keep a
written or electronic report of each such inspection.
SECTION 3.08. Permitted Withdrawals from the Collection Accounts and
Certificate Account.
The Servicer may from time to time make withdrawals from the related
Collection Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained by
the Servicer) the servicing compensation to which it is entitled pursuant
to Section 3.14, and to pay to the Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in or
credited to such Collection Account;
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(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this subclause (ii) being limited
to amounts received on the Mortgage Loan(s) in respect of which any such
Advance was made (including without limitation, late recoveries of
payments, Liquidation Proceeds and Insurance Proceeds to the extent
received by the Servicer);
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for (A) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause (A)
with respect to any Mortgage Loan being limited to amounts received on such
Mortgage Loan which represent late payments of principal and/or interest
(including, without limitation, Liquidation Proceeds and Insurance Proceeds
with respect to such Mortgage Loan) respecting which any such advance was
made and (B) for unpaid Servicing Fees as provided in Section 3.11 hereof;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received thereon after the date of
such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses incurred
by any of them and reimbursable pursuant to Section 6.03 hereof;
(vii) to withdraw any amount deposited in such Collection Account and
not required to be deposited therein;
(viii) on or prior to the Business Day immediately preceding each
Distribution Date, to withdraw an amount equal to the Available Funds plus
any related Expense Fees (other than the Servicing Fee) for such
Distribution Date and any Prepayment Penalties received in respect of the
Mortgage Loans, subject to the collection of funds included in the
definition of "Available Funds" and remit such amount to the Trustee for
deposit in the Certificate Account; and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan basis for the purpose of justifying any withdrawal from the Collection
Account pursuant to such subclauses (i), (ii), (iv) and (v). Prior to making any
withdrawal from a Collection Account pursuant to subclause (iii), the Servicer
shall deliver to the Trustee a certificate of a Servicing Officer indicating the
amount of any previous Advance determined by the Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
The Trustee shall withdraw funds from the Certificate Account for
distributions to Certificateholders, the Loss Mitigation Advisor, the Pool
Insurer, the Special Hazard Insurer and the Certificate Insurer, if applicable,
in the manner specified in this Agreement (and to withhold from
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the amounts so withdrawn, the amount of any taxes that it is authorized to
withhold pursuant to the last paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Certificate Account for
the following purposes:
(i) to pay to itself the Trustee Fee and any investment income earned
for the related Distribution Date;
(ii) to withdraw and return to the Servicer for deposit to the
Collection Account any amount deposited in the Certificate Account and not
required to be deposited therein; and
(iii) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
SECTION 3.09. Maintenance of Hazard Insurance and Mortgage Impairment
Insurance; Claims; Restoration of Mortgaged Property.
The Servicer shall obtain and maintain a blanket policy insuring against
losses arising from fire and hazards covered under extended coverage on all of
the related Mortgage Loans, which policy shall provide coverage in an amount
equal to the amount at least equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan and (ii) the greater of
(A) the outstanding principal balance of the Mortgage Loan and (B) an amount
such that the proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming co-insurer. Any amounts collected
by a Servicer under any such policy relating to a Mortgage Loan shall be
deposited in the related Collection Account subject to withdrawal pursuant to
Section 3.08. Such policy may contain a deductible clause, in which case, in the
event that there shall not have been maintained on the related Mortgaged
Property a standard hazard insurance policy, and there shall have been a loss
which would have been covered by such policy, the related Servicer shall deposit
in the related Collection Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from such Servicer's funds, without reimbursement
therefor. Upon request of the Trustee, a Servicer shall cause to be delivered to
the Trustee a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Trustee. In
connection with its activities as Servicer of the Mortgage Loans, the Servicer
agrees to present, on behalf of itself, the Depositor, and the Trustee for the
benefit of the Certificateholders, claims under any such blanket policy.
Pursuant to Section 3.05, any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in the related Escrow Account
and applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Servicer's normal servicing procedures) shall
be deposited in the related Collection Account (subject to withdrawal pursuant
to Section 3.08).
The Servicer need not obtain the approval of the Trustee prior to releasing
any Insurance Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged
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Property if such release is in accordance with Accepted Servicing Practices. At
a minimum, each Servicer shall comply with the following conditions in
connection with any such release of Insurance Proceeds:
(i) the Servicer shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds in the related Escrow Account.
If the Trustee is named as an additional loss payee, the Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Trustee.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
The Servicer shall use its best efforts to enforce any "due-on-sale"
provision contained in any related Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the related Servicer
shall, to the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause
applicable thereto, provided, however, that the Servicer shall not exercise such
rights if prohibited by law from doing so or if the exercise of such rights
would impair or threaten to impair any recovery under the related Primary
Insurance Policy, if any.
If the Servicer reasonably believes it is unable under applicable law to
enforce such "due-on-sale" clause, the Servicer shall with the prior written
consent of the Pool Insurer enter into (i) an assumption and modification
agreement with the person to whom such property has been conveyed, pursuant to
which such person becomes liable under the Mortgage Note and the original
Mortgagor remains liable thereon or (ii) in the event the Servicer is unable
under applicable law to require that the original Mortgagor remain liable under
the Mortgage Note and the Servicer has the prior consent of the primary mortgage
guaranty insurer, a substitution of liability agreement with the purchaser of
the Mortgaged Property pursuant to which the original Mortgagor is released from
liability and the purchaser of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
by reason of any transfer or assumption which the Servicer reasonably believes
it is restricted by law from preventing, for any reason whatsoever. In
connection with any such assumption, no material term of the Mortgage Note,
including without limitation, the Mortgage Rate borne by the related Mortgage
Note, the term of the Mortgage Loan or the outstanding principal amount of the
Mortgage Loan shall be changed.
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To the extent that any Mortgage Loan is assumable, the related Servicer
shall inquire diligently into the creditworthiness of the proposed transferee,
and shall use the underwriting criteria for approving the credit of the proposed
transferee which are used by FNMA with respect to underwriting mortgage loans of
the same type as the Mortgage Loans. If the credit of the proposed transferee
does not meet such underwriting criteria, the related Servicer diligently shall,
to the extent permitted by the Mortgage or the Mortgage Note and by applicable
law, accelerate the maturity of the Mortgage Loan.
Subject to the Servicer's duty to enforce any due-on-sale clause to the
extent set forth in this Section 3.10, in any case in which a Mortgaged Property
has been conveyed to a Person by a Mortgagor, and such Person is to enter into
an assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Servicer shall prepare and deliver or cause
to be prepared and delivered to the Trustee for signature and shall direct, in
writing, the Trustee to execute the assumption agreement with the Person to whom
the Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed. Together with
each such substitution, assumption or other agreement or instrument delivered to
the Trustee for execution by it, the related Servicer shall deliver an Officer's
Certificate signed by a Servicing Officer stating that the requirements of this
Section 3.10 have been met in connection therewith. The Servicer shall notify
the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for entering into
an assumption or substitution of liability agreement will be retained by the
Servicer as additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) The Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
related Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
With respect to such of the Mortgage Loans as come into and continue in default,
the Servicer will decide whether to (i) foreclose upon the Mortgaged Properties
securing such Mortgage Loans, (ii) write off the unpaid principal balance of the
Mortgage Loans as bad debt, (iii) take a deed in lieu of foreclosure, (iv)
accept a short sale (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permit a short refinancing (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (v) arrange for a repayment plan, or (vi) agree
to a modification in accordance with this Agreement. In connection
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with such decision, the Servicer shall take such action as (i) the Servicer
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (ii) shall be consistent with Accepted
Servicing Practices, (iii) the Servicer shall determine consistently with
Accepted Servicing Practices to be in the best interest of the Trustee and
Certificateholders, and (iv) is consistent with the requirements of the insurer
under any Required Insurance Policy, the Pool Insurer under the Pool Insurance
Policy and the Special Hazard Insurer under the Special Hazard Pool Insurance
Policy; provided, however, that the Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the related Collection Account). The
related Servicer shall be responsible for all other costs and expenses incurred
by it in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the liquidation proceeds with respect to the related
Mortgaged Property, as provided in the definition of Liquidation Proceeds and as
provided in Section 3.08(iv)(A).
Notwithstanding anything to the contrary contained in this Agreement, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the related Servicer has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if the
Trustee otherwise requests, an environmental inspection or review of such
Mortgaged Property conducted by a qualified inspector shall be arranged for by
the Servicer. Upon completion of the inspection, the related Servicer shall
promptly provide the Trustee with a written report of environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the related Servicer shall not proceed with foreclosure or acceptance of a deed
in lieu of foreclosure if the estimated costs of the environmental clean up, as
estimated in the environmental inspection report, together with the Servicing
Advances made by the Servicer and the estimated costs of foreclosure or
acceptance of a deed in lieu of foreclosure exceeds the estimated value of the
Mortgaged Property. If however, the aggregate of such clean up and foreclosure
costs and Servicing Advances are less than or equal to the estimated value of
the Mortgaged Property, then the related Servicer may, in its reasonable
judgment and in accordance with Accepted Servicing Practices, choose to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure and the Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the related
Collection Account pursuant to Section 3.08 hereof. In the event the related
Servicer does not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure pursuant to the first sentence of this paragraph, the Servicer shall
be reimbursed for all Servicing Advances made with respect to the related
Mortgaged Property from the related Collection Account pursuant to Section 3.08
hereof, and the Servicer shall have no further obligation to service such
Mortgage Loan under the provisions of this Agreement.
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(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to such REO Property solely as the Trustee hereunder and not
in its individual capacity. The related Servicer shall ensure that the title to
such REO Property references this Agreement and the Trustee's capacity
hereunder. Pursuant to its efforts to sell such REO Property, the related
Servicer shall in accordance with Accepted Servicing Practices manage, conserve,
protect and operate each REO Property for the purpose of its prompt disposition
and sale. The related Servicer, either itself or through an agent selected by
the Servicer, shall manage, conserve, protect and operate the REO Property in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Servicer shall
furnish to the Trustee on or before each Distribution Date a statement with
respect to any REO Property covering the operation of such REO Property for the
previous calendar month and the Servicer's efforts in connection with the sale
of such REO Property and any rental of such REO Property incidental to the sale
thereof for the previous calendar month. That statement shall be accompanied by
such other information as the Trustee shall reasonably request and which is
necessary to enable the Trustee to comply with the reporting requirements of the
REMIC Provisions. The net monthly rental income, if any, from such REO Property
shall be deposited in the related Collection Account no later than the close of
business on each Determination Date. The related Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of the Code with
respect to foreclosures and abandonments, the tax reporting required by Section
6050H of the Code with respect to the receipt of mortgage interest from
individuals and any tax reporting required by Section 6050P of the Code with
respect to the cancellation of indebtedness by certain financial entities, by
preparing such tax and information returns as may be required, in the form
required, and delivering the same to the Trustee for filing.
To the extent consistent with Accepted Servicing Practices, the Servicer
shall also maintain on each REO Property fire and hazard insurance with extended
coverage in amount which is equal to the outstanding principal balance of the
related Mortgage Loan (as reduced by any amount applied as a reduction of
principal at the time of acquisition of the REO Property), liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee shall have been supplied with an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such three-year period will not result in the imposition
of taxes on "prohibited transactions" of any REMIC hereunder as defined in
section 860F of the Code or cause any REMIC hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) or (ii) the applicable Servicer shall have
applied for, prior to the expiration of such three-year period, an extension of
such three-year period in the manner contemplated by Section 856(e)(3) of the
Code, in which case the three-year period shall be extended by the applicable
extension period. Notwithstanding any other provision of this Agreement, no
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Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC
hereunder to the imposition of any federal, state or local income taxes on the
income earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the related Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose obligor
is not a United States Person, as that term is defined in Section 7701(a)(30) of
the Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, "foreclosure") in respect of such Mortgage Loan, the
related Servicer will cause compliance with the provisions of Treasury
Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure
that no withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure are
required to be remitted to the obligors on the Mortgage Loan.
(d) The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of applicable accrued
and unpaid Servicing Fees, and unreimbursed Advances and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal and interest on the
related Mortgage Notes and shall be deposited into the related Collection
Account. To the extent the net income received during any calendar month is in
excess of the amount attributable to amortizing principal and accrued interest
at the related Mortgage Rate on the related Mortgage Loan for such calendar
month, such excess shall be considered to be a partial prepayment of principal
of the related Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the related Servicer for any related unreimbursed Servicing
Advances and Servicing Fees; second, to reimburse the Servicer for any
unreimbursed Advances; third, to reimburse the related Collection Account for
any Nonrecoverable Advances (or portions thereof) that were previously withdrawn
by the Servicer pursuant to Section 3.08(iii) that related to such Mortgage
Loan; fourth, to accrued and unpaid interest (to the extent no Advance has been
made for such amount or any such Advance has been reimbursed) on the Mortgage
Loan or related REO Property, at the per annum rate equal to the related
Mortgage Rate reduced by the related Servicing Fee Rate, to the Due Date
occurring in the month in which such amounts are required to be distributed; and
fifth, as a recovery of principal of the Mortgage Loan. Excess Proceeds, if any,
from the liquidation of a Liquidated Mortgage Loan will be retained by the
related Servicer as additional servicing compensation pursuant to Section 3.14.
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(f) The Servicer, at its option, may (but is not obligated to) repurchase
from the Trust Fund, (a) any related Mortgage Loan that is delinquent in payment
by three or more Scheduled Payments or (b) any related Mortgage Loan with
respect to which there has been initiated legal action or other proceedings for
the foreclosure of the related Mortgaged Property either judicially or
non-judicially. If it elects to make any such repurchase, the related Servicer
shall repurchase such Mortgage Loan with its own funds at a price equal to the
Repurchase Price for such Mortgage Loan.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Trustee
(or the Custodian, as the case may be) by delivering, or causing to be delivered
a "Request for Release" substantially in the form of Exhibit M. Upon receipt of
such request, the Trustee (or the Custodian, as the case may be) shall within
three Business Days release the related Mortgage File to the related Servicer,
and the Trustee shall within three Business Days of the Servicer's direction
execute and deliver to the Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Servicer, together with
the Mortgage Note with written evidence of cancellation thereon. The related
Servicer is authorized to cause the removal from the registration on the MERS(R)
System of such Mortgage, if applicable, and to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all instruments
of satisfaction or cancellation or of partial or full release. The Servicer is
authorized to cause the removal from the registration on the MERS System of such
Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release. Expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the related Mortgagor to the extent permitted by law and otherwise shall
constitute a Servicing Advance. From time to time and as shall be appropriate
for the servicing or foreclosure of any Mortgage Loan, including for such
purpose, collection under any policy of flood insurance, any fidelity bond or
errors or omissions policy, or for the purposes of effecting a partial release
of any Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee shall, within three Business Days of
delivery to the Trustee (or the Custodian, as the case may be) of a Request for
Release in the form of Exhibit M signed by a Servicing Officer, release the
Mortgage File to the Servicer. Subject to the further limitations set forth
below, the related Servicer shall cause the Mortgage File or documents so
released to be returned to the Trustee (or the Custodian, as the case may be)
when the need therefor by the Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the related
Collection Account, in which case the Servicer shall deliver to the Trustee (or
the Custodian, as the case may be) a Request for Release in the form of Exhibit
M, signed by a Servicing Officer.
If the Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Servicer
shall deliver or cause to be delivered to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale or other documents
necessary to effectuate such foreclosure or any legal action brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage or to obtain
a deficiency
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judgment or to enforce any other remedies or rights provided by the Mortgage
Note or the Mortgage or otherwise available at law or in equity.
SECTION 3.13. Documents, Records and Funds in Possession of the Servicer to
be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Servicer shall
transmit to the Trustee as required by this Agreement all documents and
instruments in respect of a Mortgage Loan coming into the possession of the
related Servicer from time to time required to be delivered to the Trustee
pursuant to the terms hereof and shall account fully to the Trustee for any
funds received by the Servicer or which otherwise are collected by the Servicer
as Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan.
All Mortgage Files and funds collected or held by, or under the control of, the
Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including but not
limited to, any funds on deposit in a Collection Account, shall be held by the
related Servicer for and on behalf of the Trustee and shall be and remain the
sole and exclusive property of the Trustee, subject to the applicable provisions
of this Agreement. The Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the related
Collection Account, Certificate Account or any related Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
SECTION 3.14. Servicing Fee.
As compensation for its services hereunder, the Servicer shall be entitled
to withdraw from the Collection Account or to retain from interest payments on
the related Mortgage Loans the amount of its Servicing Fee for each Mortgage
Loan, less any amounts in respect of its Servicing Fee payable by the Servicer
pursuant to Section 3.05(vi). The Servicing Fee is limited to, and payable
solely from, the interest portion of such Scheduled Payments collected by the
related Servicer or as otherwise provided in Section 3.08.
Additional servicing compensation in the form of Ancillary Income shall be
retained by the Servicer. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
the payment of any expenses incurred in connection with any Subservicing
Agreement entered into pursuant to Section 3.02) and shall not be entitled to
reimbursement thereof except as specifically provided for in this Agreement.
SECTION 3.15. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinate Certificates and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the related
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Mortgage Loans required by applicable regulations of the OTS and the FDIC. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
the Servicer. Nothing in this Section shall limit the obligation of the Servicer
to observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Servicer to provide access as provided in
this Section as a result of such obligation shall not constitute a breach of
this Section. Nothing in this Section 3.15 shall require the Servicer to
collect, create, collate or otherwise generate any information that it does not
generate in its usual course of business.
SECTION 3.16. Annual Statement as to Compliance.
The Servicer shall deliver to the Depositor, the Certificate Insurer, the
Rating Agencies and the Trustee on or before 120 days after the end of the
Servicer's fiscal year, commencing after its 2001 fiscal year, an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Servicer during the preceding calendar year and of the
performance of the Servicer 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 Servicer has materially fulfilled all its obligations under
this Agreement throughout such year, or, if there has been a material default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and the action being taken by the
Servicer to cure such default.
SECTION 3.17. Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Servicer's fiscal year,
commencing after its 2001 fiscal year, the Servicer at its expense shall cause a
nationally or regionally recognized firm of independent public accountants (who
may also render other services to the Servicer, the Seller or any affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee, the Certificate Insurer and
the Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of mortgage loans which the Servicer is
servicing, including the related Mortgage Loans, and that, on the basis of such
examination, conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Guide for HUD Approved
Title II Approved Mortgagees and Loan Correspondent Programs, nothing has come
to their attention which would indicate that such servicing has not been
conducted in compliance with Accepted Servicing Practices, except for (a) such
exceptions as such firm shall believe to be immaterial, and (b) such other
exceptions as shall be set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage loans
by Subservicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs (rendered within one year of such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the Servicer's expense, provided such
statement is delivered by the Servicer to the Trustee.
SECTION 3.18. Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
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The Servicer shall maintain with responsible companies, at its own expense,
a blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the related Mortgage Loans ("Servicer Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Financial
Institution Bond Form 22 - Fidelity Bond American International Specialty Lines
Insurance Policy Form ("5713 5/93") Mortgage Banker Broker E&O and shall protect
and insure the related Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of the Servicer
Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy also
shall protect and insure the Servicer against losses in connection with the
release or satisfaction of a related Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.18 requiring such Fidelity Bond and Errors and Omissions Insurance
Policy shall diminish or relieve the Servicer from its duties and obligations as
set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by FNMA. Upon the request of the Trustee, the related Servicer shall cause to be
delivered to the Trustee a certificate of insurance of the insurer and the
surety including a statement from the surety and the insurer that such fidelity
bond and insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Trustee.
SECTION 3.19. Duties of the Loss Mitigation Advisor.
The Certificateholders, by their purchase and acceptance of the
Certificates, appoint The Murrayhill Company as Loss Mitigation Advisor. For and
on behalf of the Depositor, the Trustee and the Certificate Insurer, the Loss
Mitigation Advisor will provide reports and recommendations concerning Mortgage
Loans that are past due, as to which there has been commencement of foreclosure,
as to which there has been forbearance in exercise of remedies which are in
default, as to which obligor is the subject of bankruptcy, receivership, or an
arrangement of creditors, or as to which have become REO Properties. Such
reports and recommendations will be based upon information provided to the Loss
Mitigation Advisor pursuant to the Loss Mitigation Advisory Agreement and the
Loss Mitigation Advisor shall look solely to the Servicer for all information
and data (including loss and delinquency information and data) and loan level
information and data relating to the servicing of the Mortgage Loans. Upon
receipt of notice from the Pool Insurer with respect to any claim rejected by
the Pool Insurer (the "Claims Report") under the Pool Insurance Policy, the Loss
Mitigation Advisor shall review any such rejected claim and shall determine,
based on the information provided by the Pool Insurer, whether the claim was
rejected due to the Servicer's failure to comply with the terms of the related
policy or the claims-filing procedures of the Pool Insurer. The Loss Mitigation
Advisor shall promptly notify the Depositor, the Seller, the Servicer, the
Certificate Insurer, the Trustee and each Rating Agency with written information
regarding such determination and the basis of such determination along with the
related Claims Report. If the Loss Mitigation Advisor is no longer able to
perform its duties hereunder, the Depositor shall terminate the Loss Mitigation
Advisor and cause the appointment of a successor Loss Mitigation Advisor. Upon
any termination of the Loss Mitigation Advisor or the appointment of a successor
Loss Mitigation Advisor, the Depositor shall give written notice thereof to the
Seller, the Servicer, the Certificate Insurer, the Trustee and each Rating
Agency. Notwithstanding the
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foregoing, the termination of the Loss Mitigation Advisor pursuant to this
Section 3.19 shall not become effective until the appointment of a successor
Loss Mitigation Advisor.
SECTION 3.20. Limitation Upon Liability of the Loss Mitigation Advisor.
Neither the Loss Mitigation Advisor, nor any of the directors, officers,
employees or agents of the Loss Mitigation Advisor, shall be under any liability
to the Trustee, the Certificate Insurer, the Certificateholders or the Depositor
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, in reliance upon information provided by
Servicer under the Loss Mitigation Advisory Agreements or of errors in judgment;
provided, however, that this provision shall not protect the Loss Mitigation
Advisor or any such person against liability that would otherwise be imposed by
reason of willful malfeasance, bad faith or gross negligence in its performance
of its duties under this Agreement or the Loss Mitigation Advisor Agreements.
The Loss Mitigation Advisor and any director, officer, employee or agent of the
Loss Mitigation Advisor may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder, and may rely in good faith upon the accuracy of information
furnished by the Servicer pursuant to the Loss Mitigation Advisory Agreements in
the performance of its duties thereunder and hereunder.
SECTION 3.21. Maintenance of Pool Insurance Policy.
The Servicer shall exercise its best efforts to maintain and keep the Pool
Insurance Policy in full force and effect throughout the term of this Agreement,
unless coverage thereunder has been exhausted through payment of claims. The
Trustee shall pay on a timely basis the Pool Insurer Fee from amounts on deposit
by the Trustee in the Certificate Account in accordance with the terms of the
Pool Insurance Policy.
At any time, the Servicer may substitute a surety bond, letter of credit,
another mortgage guaranty pool insurance policy or other credit enhancement for
the Pool Insurance Policy or any substitute therefor to the extent permitted by
the Certificate Insurer, Xxxxx'x Investors Service, Inc. and each Rating Agency
without a downgrading of the then current rating of the Certificates, which
shall be confirmed in writing to the Servicer, the Trustee and the Certificate
Insurer by each Rating Agency and such confirmation shall be determined without
regard to the Certificate Insurance Policies.
In the event that the Pool Insurance Policy is canceled or terminated for
any reason other than exhaustion of the coverage thereunder or the claims-paying
ability of the Pool Insurer is reduced below investment grade by either Rating
Agency, the Servicer shall use its best efforts to obtain a replacement Pool
Insurance Policy from a Qualified Insurer that is acceptable to Xxxxx'x
Investors Service, Inc. and the Certificate Insurer. Any such replacement policy
will provide for an amount of coverage equal to the then remaining coverage
amount of the Pool Insurance Policy, provided, however, that if the premium cost
of the replacement policy exceeds the premium cost of the Pool Insurance Policy,
the coverage amount of the replacement policy shall be reduced so that the
premium cost therefore will not exceed 100% of the premium cost of the Pool
Insurance Policy.
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In connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to file, on behalf of itself, the Trustee,
the Depositor, the Certificateholders and the Certificate Insurer claims to the
Pool Insurer in a timely fashion in accordance with the terms of the Pool
Insurance Policy and, in this regard, to take such action as shall be necessary
to permit recovery under the Pool Insurance Policy respecting a related
defaulted Mortgage Loan. Pursuant to Section 3.09, any amounts collected by the
Servicer under the Pool Insurance Policy (other than any amount to be applied to
the restoration or repair of the property encumbered by the related Mortgage
Loan with respect to which such amount was collected) shall be deposited in the
Collection Account pursuant to Section 3.05. The Servicer shall comply will all
applicable terms of the Pool Insurance Policy and the claims-filing procedures
of the Pool Insurer, to the extent necessary to avoid any adjustments to claims
paid under the Pool Insurance Policy.
SECTION 3.22. Maintenance of Special Hazard Insurance Policy.
The Servicer agrees to exercise commercially reasonable efforts to maintain
and keep the Special Hazard Insurance Policy in full force and effect throughout
the term of this Agreement, unless coverage thereunder has been exhausted
through the payment of claims; provided, however, that in no case shall the
Servicer be required to (i) expend its own funds to maintain such policy or (ii)
make a Nonrecoverable Advance. In the event that (i) the claims paying ability
rating of the Special Hazard Insurer is reduced to such a level that the ratings
are reduced below the level of the ratings originally given, (ii) the Special
Hazard Insurer ceases to be a property and casualty insurer duly qualified as
such under applicable laws or (iii) the Special Hazard Insurance Policy is
cancelled for any reason other than the exhaustion of coverage thereunder, the
Servicer acting on behalf of the Trustee shall exercise commercially reasonable
efforts to obtain from another insurer acceptable to the Rating Agencies and the
Certificate Insurer a replacement policy comparable to the initial Special
Hazard Insurance Policy; provided, however, that if the cost of any such
replacement policy shall be greater than the cost of the initial Special Hazard
Insurance Policy, the amount of coverage of such replacement policy shall be
reduced to a level such that the premium rate therefor shall not exceed 100% of
the premium rate on the initial Special Hazard Insurance Policy.
The Trustee shall pay on a timely basis the Special Hazard Insurer Fee from
amounts on deposit by the Trustee in the Certificate Account in accordance with
the terms of the Special Hazard Insurance Policy.
In connection with its activities hereunder, the Servicer agrees to
present, on behalf of itself, the Trustee, the Depositor, the Certificateholders
and the Certificate Insurer, claims to the Special Hazard Insurer in a timely
fashion and in accordance with the terms of the Special Hazard Insurance Policy,
and, in this regard, to take such commercially reasonable action (other than the
making of Nonrecoverable Advances) as shall be necessary to permit recovery
under the Special Hazard Insurance Policy. The Servicer shall collect all
amounts relating to the Certificates under the Special Hazard Insurance Policy
and shall deposit such amounts in the related Collection Account pursuant to
Section 3.05. The Servicer shall comply with all applicable terms of the Special
Hazard Insurance Policy and the claims- filing procedures of the Special Hazard
Insurer, to the extent necessary to avoid any adjustments to claims paid under
the Special Hazard Insurance Policy.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
SECTION 4.01. Advances by the Servicer.
The Servicer shall deposit in the Collection Account an amount equal to all
Scheduled Payments (with interest at the Mortgage Rate less the Servicing Fee
Rate) which were due on the related Mortgage Loans during the applicable Due
Period and which were delinquent at the close of business on the immediately
preceding Determination Date. The Servicer's obligation to make such Advances as
to any related Mortgage Loan will continue through the last Scheduled Payment
due prior to the payment in full of such Mortgage Loan, or through the date that
the related Mortgaged Property has, in the judgment of the Servicer, been
completely liquidated.
The Servicer shall be obligated to make Advances in accordance with the
provisions of this Agreement; provided however, that such obligation with
respect to any related Mortgage Loan shall cease if the Servicer determines, in
its reasonable opinion, that Advances with respect to such Mortgage Loan are
Nonrecoverable Advances. In the event that the Servicer determines that any such
advances are Nonrecoverable Advances, the Servicer shall provide the Trustee and
the Certificate Insurer with a certificate signed by a Servicing Officer
evidencing such determination.
If an Advance is required to be made hereunder, the Servicer shall on the
second Business Day immediately preceding the Distribution Date immediately
following the related Determination Date either (i) deposit in the Collection
Account from its own funds an amount equal to such Advance, (ii) cause to be
made an appropriate entry in the records of the Collection Account that funds in
such account being held for future distribution or withdrawal have been, as
permitted by this Section 4.01, used by the Servicer to make such Advance or
(iii) make Advances in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Advance. Any such funds being held in a
Collection Account for future distribution and so used shall be replaced by the
Servicer from its own funds by deposit in such Collection Account on or before
any future Distribution Date in which such funds would be due.
SECTION 4.02. Priorities of Distribution.
(a) On each Distribution Date, prior to making distributions to the holders
of the Certificates, the Trustee first, shall pay itself the Trustee's Fee for
such Distribution Date, second, shall pay the Loss Mitigation Advisor the Loss
Mitigation Fee, third, shall remit to the Pool Insurer, by fund transfer from an
account in the name of the Philadelphia office of the Trustee, in immediately
available funds, the Pool Insurer Fee for such Distribution Date, and fourth,
shall remit to the Special Hazard Pool Insurer, the Special Hazard Insurer Fee
for such Distribution Date.
(b) With respect to the Available Funds and any funds received from the
Pool Insurance Policy and the Special Hazard Insurance Policy for each Group, on
each Distribution Date, the Trustee shall withdraw such Available Funds from the
Certificate Account and apply such funds to distributions on the Certificates of
the related Certificate Group and to the Certificate Insurer, as
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applicable, in the following order and priority and, in each case, to the extent
of such Available Funds remaining:
(i) with respect to the Group I Certificates, to the extent of the
Available Funds for Loan Group I and with respect to the Class I-A-1
Certificates and Class I-A-2 Certificates as applicable, any Insured
Payment for that Distribution Date:
(A) first, to the Certificate Insurer, the Certificate Insurer
Premium with respect to the Class I-A-1 Certificates and Class
I-A-2 Certificates;
(B) second, to the Class I-A-1, Class I-A-2, Class A-R-1, Class
A-R-2, Class A-R-3 and Class P Certificates, concurrently, the
related Interest Distribution Amount;
(C) third, in the Distribution Date in March 2006 and thereafter up
to the amount of the related Senior Principal Distribution
Amount, to the Class P Certificates, until the Class Principal
Balance thereof has been reduced to zero;
(D) fourth, up to the amount of the related Senior Principal
Distribution Amount for such Certificate Group, to the Class
I-A-1 , Class A-R-1, Class A-R-2 and Class A-R-3 Certificates, in
the order and priority set forth in clause (d) below, and subject
to clause (f) below, in reduction of the Class Principal Balance
thereof, until the Class Principal Balance thereof has been
reduced to zero;
(E) fifth, to the Class P Certificates, until the Class Principal
Balance thereof has been reduced to zero; and
(F) sixth, to the Certificate Insurer, any Certificate Insurer
Reimbursement Amount;
(ii) with respect to the Group II Certificates, to the extent of the
Available Funds for Loan Group II for that Distribution Date:
(A) first, to the Class II-P Certificates, the Class II-P Principal
Distribution Amount;
(B) second, to the Class II-A-1 and Class X-II Certificates,
concurrently, the related Interest Distribution Amount; and
(C) third, to the Class II-A-1 Certificates, the related Senior
Principal Distribution Amount, in the manner and priority set
forth in clause (d) below, and subject to clause (f) below;
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(iii) with respect to the Group III Certificates, to the extent of the
Available Funds for Loan Group III and with respect to the Class III-A-1
Certificates and Class III-A-2 Certificates, as applicable, the amount of
any Insured Payments for that Distribution Date:
(A) first, to the Certificate Insurer, the Certificate Insurer
Premium with respect to the Class III-A- 1 Certificates and Class
III-A-2 Certificates;
(B) second, to the Class III-A-1 and Class III-A-2 Certificates, the
related Interest Distribution Amount;
(C) third, to the Class III-A-1 Certificates, the related Senior
Principal Distribution Amount, in the manner and priority set
forth in clause (d) below, and subject to clause (f) below; and
(D) fourth, to the Certificate Insurer, any Certificate Insurer
Reimbursement Amount;
(iv) with respect to the Principal Only, Class B and Class XB
Certificates, to the extent of the Available Funds for Loan Group I, Loan
Group II and Loan Group III, after the payment of the Group I, Group II and
Group III Certificates and the Certificate Insurer described above in
clauses 4.02(b)(i), (ii) and (iii) and further subject to clause (f) below;
(A) first, to the Principal Only Certificates, to the extent of
amounts otherwise available to pay the Subordinate Principal
Distribution Amount on that Distribution Date, principal in an
amount equal to any Class II-P Deferred Amounts that were not
attributable to a Special Hazard Loss, a Bankruptcy Loss, a Fraud
Loss or an Extraordinary Loss; provided, however, that any
amounts distributed in respect of losses pursuant to this clause
(iv)(A) will not cause a further reduction in the Class II-P
Principal Balance;
(B) second, to the Class B-1 Certificates, the related Interest
Distribution Amount;
(C) third, to the Class XB-1 Certificates, the related Interest
Distribution Amount;
(D) fourth, to the Class B-1 Certificates, their pro rata share of
the Subordinate Principal Distribution Amount;
(E) fifth, to the Class B-2 Certificates, the related Interest
Distribution Amount;
(F) sixth, to the Class XB-2 Certificates, the related Interest
Distribution Amount;
(G) seventh, to the Class B-2 Certificates, their pro rata share of
the Subordinate Principal Distribution Amount; and
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(H) eighth, to the Class B-1 Certificates and then the Class B-2
Certificates, up to the amount of unreimbursed Realized Losses
previously allocated to that Class, if any; provided, however,
that any amounts distributed pursuant to this paragraph (iv)(H)
will not cause a further reduction in the Class Principal
Balances of any of the Class B Certificates.
(c) On each Distribution Date, amounts representing Prepayment Penalties in
respect of the Mortgage Loans received during the related Prepayment Period will
be withdrawn from the Certificate Account and distributed by the Trustee to the
holders of the Class P Certificates and shall not be available for distribution
to the Holders of any other Class of Certificates. The payment of the foregoing
amounts to the holders of the Class P Certificates shall not reduce the
Certificate Principal Balances thereof.
(d) On each Distribution Date prior to the Credit Support Depletion Date
for each Loan Group, the related Senior Principal Distribution Amount for that
Distribution Date, but subject to adjustment pursuant to clause (f) below, will
be distributed as principal to the related classes of Senior Certificates in the
following order of priority:
(i) with respect to Group I,
(A) first, concurrently on a pro rata basis to the Class A-R-1
Certificates, Class A-R-2 Certificates and Class A-R-3
Certificates until those Class Principal Balances have been
reduced to zero;
(B) second, to the Class I-A-1 Certificates, until the Class
Principal Balance of that class has been reduced to zero;
(ii) with respect to Group II, to the Class II-A-1 Certificates, until
the Class Principal Balance of that class has been reduced to zero; and
(iii) with respect to Group III, to the Class III-A-1 Certificates,
until the Class Principal Balance of that class has been reduced to zero.
(iv) On each Distribution Date on and after the Credit Support
Depletion Date, the Senior Principal Distribution Amount for each group of
Senior Certificates will be distributed as principal to all the related
Senior Certificates (other than the Principal Only Certificates), pro rata,
based on aggregate Class Principal Balances immediately prior to such
Distribution Date.
(e) On each Distribution Date, the amount referred to in clause (i) of the
definition of Interest Distribution Amount for such Distribution Date for each
Class of Certificates shall be reduced by the Trustee by the related Class's pro
rata share (based on the applicable Interest Distribution Amount for each such
Class before reduction pursuant to this Section 4.02(e)) of "Net Interest
Shortfalls" which shall be equal to the sum of (A) Net Prepayment Interest
Shortfalls for the Mortgage Loans, and (B) the sum of: (I) Excess Losses that
are Special Hazard Losses or Extraordinary Losses during the calendar month
preceding the month of such Distribution Date, the
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excess of one month's interest at the related Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month, (II) Excess Losses that are Bankruptcy Losses during
the calendar month preceding the month of such Distribution Date, the interest
portion of the related Debt Service Reduction or Deficient Valuation, (III) each
Relief Act Reduction for any Mortgage Loan incurred during the calendar month
preceding the month of such Distribution Date and (IV) Excess Losses that are
Fraud Losses during the calendar month preceding the month of such Distribution
Date equal to the excess of one month's interest at the related Net Mortgage
Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date in
such month over the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month.
(f) Notwithstanding the foregoing,
(X) On any Distribution Date occurring after the date on which one or
more of (x) the Class Principal Balance of the Class I-A-1 Certificates,
(y) the Class Principal Balance of the Class II-A-1 Certificates or (z) the
Class Principal Balance of the Class III-A-1 Certificates has been reduced
to zero, all principal received or advanced with respect to the Mortgage
Loans in the Loan Group or Groups related to the Class A Certificates that
have been paid in full (after distributions of principal to the Principal
Only Certificates pursuant to paragraphs (b)(ii)(A) above) shall be paid as
principal to the remaining Class A Certificates of the other Certificate
Group or Groups to the extent of and in reduction of the Class Principal
Balances thereof and to the Certificate Insurer to the extent of any
amounts due to it, prior to any distributions of principal to the Class B-1
Certificates pursuant to paragraph (b)(iv)(D) above; provided, however,
that if there are two Certificate Groups with outstanding Class A
Certificates, then such principal will be distributed between those two
Certificate Groups pro rata according to the aggregate Class Principal
Balance of the Class A Certificates of such two Certificate Groups;
provided, further, that principal will not be distributed as set forth
above in this clause 4.02(f)(X) if on such Distribution Date (a) the Loss
Coverage Percentage for such Distribution Date is greater than or equal to
200% of the Loss Coverage Percentage as of the Closing Date and (b) the
outstanding principal balance of the Mortgage Loans in each of Loan Group
I, Loan Group II and Loan Group III delinquent 60 days or more averaged
over the last six months (including Mortgage Loans in foreclosure and
Mortgage Loans the property of which is held by REMIC 1 and acquired by
foreclosure or deed in lieu of foreclosure), as a percentage of the sum of
(a) the related Subordinate Component Balance and (b) a pro rata portion of
the amount of coverage available under the Pool Insurance Policy (allocated
in proportion to the respective Subordinate Component Balances), is less
than 50%.
(Y) If on any Distribution Date any of Loan Group I, Loan Group II or
Loan Group III is an Undercollateralized Group and the other such Loan
Group or Loan Groups is an Overcollateralized Group, then the Available
Funds for the Certificate Group or Groups related to the Overcollateralized
Group or Groups, to the extent remaining following distributions of
interest and principal to the Certificates in such Certificate Group and to
the Certificate Insurer pursuant to paragraph (b)(i), (b)(ii) or (b)(iii)
above, as applicable, shall be paid in the following priority: (1) first,
such remaining amount, up to the Total Transfer
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Amount for each such Undercollateralized Group, pro rata according to the
Total Transfer Amount for each such Undercollateralized Group, shall be
distributed (a) first, to the Class A Certificates related to each such
Undercollateralized Group, in payment of any portion of the Interest
Distribution Amounts for such Classes of Certificates remaining unpaid from
such Distribution Date or previous Distribution Dates, pro rata according
to their respective shares of such unpaid amounts, (b) second, to the Class
A Certificates related to each such Undercollateralized Group, as
principal, and (c) third, to any amounts due the Certificate Insurer, and
(2) second, any remaining amount shall be distributed pursuant to paragraph
(b)(iv) above.
SECTION 4.03. [Reserved]
SECTION 4.04. [Reserved]
SECTION 4.05. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Servicer shall determine
the total amount of Realized Losses, including Excess Losses, with respect to
the related Distribution Date.
(b) With respect to any Distribution Date, the applicable Class II-P
Fraction of any Realized Loss incurred on a Class II-P Mortgage Loan, including
any Excess Loss, shall be allocated to the Class II-P Certificates until the
Class Principal Balance thereof is reduced to zero.
(c) With respect to any Distribution Date, Realized Losses, other than
Special Hazard Losses, Bankruptcy Losses, Fraud Losses or Extraordinary Losses
incurred on the Mortgage Loans, other than the Class II-P Fraction of the
Realized Loss if a Class II-P Mortgage Loan, shall be allocated to the Classes
of Certificates as follows, except as provided in clause (f) below:
(i) first, to the Subordinate Certificates (other than the Class XB
Certificates) in decreasing order of their numerical Class designations
(beginning with the Class of Subordinate Certificates then outstanding with
the highest numerical Class designation), until the respective Class
Principal Balance of each such Class is reduced to zero, and
(ii) second, to the Class A Certificates related to that Loan Group,
pro rata, on the basis of their respective Class Principal Balances.
(d) No Realized Losses will be allocated to the Class P Certificates.
(e) With respect to any Distribution Date, Excess Losses, other than the
Class II-P Fraction of an Excess Loss on a Class II-P Mortgage Loan, incurred on
the Mortgage Loans shall be allocated to the Class A Certificates related to
that Loan Group and to the Class B Certificates, pro rata, based on their
respective Class Principal Balances, except as provided in clause (f) below.
For the purpose of the clause (e), the pro rata share allocable to any
Class of Class B Certificates will be proportionate to the Class Principal
Balance of that Class times a fraction, the
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numerator of which is the Subordinate Component Balance for the related Loan
Group, and the denominator of which the aggregate of the Subordinate Component
Balances.
(f) Notwithstanding the foregoing, in the case of Realized Losses allocated
to the Senior Certificates pursuant to clauses (c)(ii) and (e) of this Section,
(X) if such loss occurs in an Overcollateralized Group and there is a single
Undercollateralized Group, the Senior Certificates related to such
Undercollateralized Group will receive a portion of such loss (such portion
equal to a fraction, the numerator of which is the Subordinate Component Balance
with respect to the Overcollateralized Group that suffered such loss and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans in such Overcollateralized Group (less if such Overcollateralized Group is
Loan Group II, the applicable Class II-P Fraction thereof with respect to any
Class II-P Mortgage Loan), and the remainder of such loss will be allocated to
the Senior Certificates related to the Loan Group that suffered such loss, and
(Y) if such loss occurs in an Overcollateralized Group and there are two
Undercollateralized Groups, the Senior Certificates related to each
Undercollateralized Group will receive a portion of such loss (such portion
equal to the fraction described in the parenthetical in clause (X) above,
multiplied by a second fraction, the numerator of which is the Principal
Transfer Amount with respect to such Undercollateralized Group and the
denominator of which is the sum of (1) the Principal Transfer Amount with
respect to such Undercollateralized Group and (2) the Principal Transfer Amount
with respect to the other Undercollateralized Group), and the remainder of such
loss will be allocated to the Senior Certificates related to the Loan Group that
suffered such loss; provided, further, that all such losses allocated to the
Senior Certificates related to a Loan Group pursuant to clause (X) or (Y) of the
immediately preceding proviso to this paragraph will be allocated to such Senior
Certificates as described in clauses (c)(ii) and (e) of this Section.
(g) On each Distribution Date, if the aggregate Class Principal Balance of
all Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans (in each case, after giving effect to distributions of principal and the
allocation of all losses to the related Certificates on such Distribution Date),
such excess will be deemed a principal loss and will be allocated to the most
junior Class of Subordinate Certificates, pro rata, as applicable, then
outstanding.
(h) Any Realized Loss allocated to a Class of Certificates or any reduction
in the Class Principal Balance of a Class of Certificates pursuant to this
Section 4.05 shall be allocated by the Trustee among the Certificates of such
Class in proportion to their respective Certificate Balances.
(i) Any allocation by the Trustee of Realized Losses to a Certificate or
any reduction in the Certificate Balance of a Certificate pursuant to this
Section 4.05 shall be accomplished by reducing the Certificate Balance thereof,
immediately following the distributions made on the related Distribution Date,
in accordance with the definition of "Certificate Balance."
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SECTION 4.06. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available on the website maintained by the Trustee at
xxxx://xxx.xxxxx.xxx/xxxxxx, a statement setting forth with respect to the
related distribution for each Certificate Group:
(i) the amount thereof allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein, and the amount of the distribution made to the holders of
the Class P Certificates allocable to Prepayment Penalties;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Shortfall included in such distribution and any remaining Class
Unpaid Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of Certificates
is less than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the shortfall
and the allocation thereof as between principal and interest;
(iv) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on such Distribution Date;
(v) the aggregate Stated Principal Balance of the Group I Mortgage
Loans, the Group II Mortgage Loans and the Group III Mortgage Loans;
(vi) the Senior Percentage and the Subordinate Percentage for the
Group I Certificates, the Group II Certificates and the Group III
Certificates, in each case, for the following Distribution Date;
(vii) the amount of the Servicing Fees and Prepayment Penalties, if
applicable, with respect to such Distribution Date and the related Loan
Group;
(viii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the end of the preceding month;
(x) the number and aggregate principal amounts of Mortgage Loans in
each Loan Group (A) delinquent (exclusive of Mortgage Loans in foreclosure)
(1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more days and (B) in
foreclosure and delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91
or more days, as of the close of business on the last day of the calendar
month preceding such Distribution Date;
(xi) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled
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Payments (A) due on all Outstanding Mortgage Loans on each of the Due Dates
in each such month and (B) delinquent 60 days or more on each of the Due
Dates in each such month;
(xii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xiii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiv) the Senior Prepayment Percentage for the Group I Certificates,
Group II Certificates and Group III Certificates for the following
Distribution Date;
(xv) the Subordinate Prepayment Percentage for the Group I
Certificates, Group II Certificates and Group III Certificates for the
following Distribution Date;
(xvi) the aggregate amount of Realized Losses for each Certificate
Group incurred during the preceding calendar month and aggregate Realized
Losses through such Distribution Date; and
(xvii) the amount and dates of any payments made under the Pool
Insurance Policy, the Special Hazard Insurance Policy or the Certificate
Insurance Policy.
Assistance in using the website can be obtained by calling the Trustee's
customer service desk at 000- 000-0000. Parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class mail by
written notice to the Trustee at its Corporate Trust Office. The Trustee's
responsibility for disbursing the above information to the Certificateholders
for each Certificate Group is limited to the availability, timeliness and
accuracy of the information derived from the Servicer. The foregoing information
shall be reported to the Trustee each month on or before the related
Determination Date; provided, however, that in connection with the information
provided in paragraph (xvii) above, the Special Hazard Loss, the Fraud Loss and
the Bankruptcy Loss, if any, shall be reported to the Trustee each month on or
before the related Determination Date.
(b) Within a reasonable period of time after the end of each calendar year,
the Trustee shall cause to be furnished to each Person who at any time during
the calendar year was a Certificateholder, a statement containing the
information set forth in, clauses (a)(i), (a)(ii) and (a)(vii) of this Section
4.06 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
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SECTION 4.07. Certificate Insurer; Policy Matters.
(a) If, on the second Business Day before any Distribution Date, the
Trustee determines that the funds that will be available for such Distribution
Date distributable to the Holders of the Insured Certificates pursuant to
Section 4.02 will be insufficient to pay the Insured Payment on such
Distribution Date, the Trustee shall determine the amount of any such deficiency
and shall give notice to Certificate Insurer and the Fiscal Agent (as defined in
the related Certificate Insurance Policy), if any, by telephone or telecopy of
the amount of such deficiency, confirmed in writing by notice substantially in
the form of Exhibit A to the applicable Certificate Insurance Policy by 12:00
noon, New York City time, on such second Business Day. The Trustee's
responsibility for delivering the notice to Certificate Insurer, as provided in
the preceding sentence is limited to the availability, timeliness and accuracy
of the information provided by the Servicer.
(b) In the event the Trustee receives a certified copy of an order of the
appropriate court that any payment of principal or interest on an Insured
Certificate has been voided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall (i) promptly notify Certificate
Insurer and the Fiscal Agent, if any, and (ii) comply with the provisions of the
related Certificate Insurance Policy to obtain payment by Certificate Insurer of
such voided payment. In addition, the Trustee shall mail notice to all Holders
of the Insured Certificates so affected that, in the event that any such
Holder's scheduled payment is so recovered, such Holder will be entitled to
payment pursuant to the terms of the related Certificate Insurance Policy a copy
of which shall be made available to such Holders by the Trustee. The Trustee
shall furnish to Certificate Insurer and the Fiscal Agent, if any, its records
listing the payments on the affected Insured Certificates, if any, that have
been made by the Trustee and subsequently recovered from the affected Holders,
and the dates on which such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof, the
Trustee shall establish a separate special purpose trust account in the name of
the Trustee for the benefit of the Holders of the Group I Insured Certificates
and the Group III Insured Certificates (each, a "Certificate Insurance Policy
Payments Account") over which the Trustee shall have exclusive control and sole
right of withdrawal. Each Certificate Insurance Policy Payments Account shall be
an Eligible Account. The Trustee shall deposit any amount paid under either
Certificate Insurance Policy into the related Certificate Insurance Policy
Payments Account and distribute such amount only for the purposes of making the
payments to Holders of the related Insured Certificates in respect of the
Insured Payment for which the related claim was made under such Certificate
Insurance Policy. Such amounts shall be allocated by the Trustee to Holders of
Insured Certificates affected by such shortfalls in the same manner as principal
and interest payments are to be allocated with respect to such Certificates
pursuant to Section 4.02. It shall not be necessary for such payments to be made
by checks or wire transfers separate from the checks or wire transfers used to
make regular payments hereunder with funds withdrawn from the Certificate
Account. However, any payments made on the Insured Certificates from funds in
the related Certificate Insurance Policy Payments Account shall be noted as
provided in subsection (e) below. Funds held in the Certificate Insurance Policy
Payments Accounts shall not be invested by the Trustee.
(d) Any funds received from Certificate Insurer for deposit into either
Certificate Insurance Policy Payments Account pursuant to the related
Certificate Insurance Policy in respect of a Distribution Date or otherwise as a
result of any claim under the related Certificate Insurance Policy shall be
applied by the Trustee directly to the payment in full of the Insured Payment
due on
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such Distribution Date on the related Insured Certificates. Funds received by
the Trustee as a result of any claim under either Certificate Insurance Policy
shall be used solely for payment to the Holders of the related Insured
Certificates and may not be applied for any other purpose, including, without
limitation, satisfaction of any costs, expenses or liabilities of the Trustee,
the Servicer or the Trust Fund. Any funds (other than funds deposited therein in
respect of a Preference Amount payable under the related Certificate Insurance
Policy) remaining in the related Certificate Insurance Policy Payments Account
on the first Business Day after each Distribution Date shall be remitted
promptly to Certificate Insurer pursuant to the written instruction of
Certificate Insurer.
(e) The Trustee shall keep complete and accurate records in respect of (i)
all funds remitted to it by Certificate Insurer and deposited into the related
Certificate Insurance Policy Payments Account and (ii) the allocation of such
funds to payments of interest on and principal in respect of the related Insured
Certificates. Certificate Insurer shall have the right to inspect such records
at reasonable times during normal business hours upon three Business Days' prior
notice to the Trustee.
(f) The Trustee acknowledges, and each Holder of an Insured Certificate by
its acceptance of the Insured Certificate agrees, that, without the need for any
further action on the part of Certificate Insurer or the Trustee, to the extent
Certificate Insurer makes payments, directly or indirectly, on account of
principal of or interest on any Insured Certificates, Certificate Insurer will
be fully subrogated to the rights of the Holders of such Insured Certificates to
receive such principal and interest from the Trust Fund. The Holders of the
Insured Certificates, by acceptance of the Insured Certificates, assign their
rights as Holders of the Insured Certificates to the extent of Certificate
Insurer's interest with respect to amounts paid under the related Certificate
Insurance Policy. Anything herein to the contrary notwithstanding, solely for
purposes of determining Certificate Insurer's rights, as applicable, as subrogee
for payments distributable pursuant to Section 4.02, any payment with respect to
distributions to the Insured Certificates which is made with funds received
pursuant to the terms of the related Certificate Insurance Policy shall not be
considered payment of the Insured Certificates from the Trust Fund and shall not
result in the distribution or the provision for the distribution in reduction of
the Class Principal Balance of the Insured Certificates except to the extent
such payment has been reimbursed to Certificate Insurer pursuant to the terms
hereof.
(g) Upon a Responsible Officer of the Trustee becoming aware of the
occurrence of an Event of Default, the Trustee shall promptly notify Certificate
Insurer of such Event of Default.
(h) The Trustee shall promptly notify Certificate Insurer of either of the
following as to which a Responsible Officer of the Trustee has actual knowledge:
(A) the commencement of any proceeding by or against the Depositor commenced
under the United States bankruptcy code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an "Insolvency
Proceeding") and (B) the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer (a "Preference
Claim") of any distribution made with respect to the Insured Certificates as to
which it has actual knowledge. Each Holder of an Insured Certificate, by its
purchase of Insured Certificates, and the Trustee hereby agrees 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
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Preference Claim, including, without limitation, (i) the direction of any appeal
of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, the Certificate Insurer shall be subrogated
to the rights of the Trustee and each Holder of an Insured Certificate in the
conduct of any Preference Claim, including, without limitation, all rights of
any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
(i) The Servicer shall designate a Certificate Insurer Contact Person who
shall be available to Certificate Insurer to provide reasonable access to
information regarding the Mortgage Loans. The initial Certificate Insurer
Contact Persons are the Servicing Officers.
(j) The Trustee shall surrender the related Certificate Insurance Policy to
the Certificate Insurer for cancellation upon the reduction of the Class
Principal Balance of the applicable Insured Certificates to zero.
(k) The Trustee shall send to Certificate Insurer the reports prepared
pursuant to Sections 3.16 and 3.17 and the statements prepared pursuant to
Section 4.06, as well as any other statements or communications sent to Holders
of the Insured Certificates, in each case at the same time such reports,
statements and communications are otherwise sent.
(l) For so long as there is no continuing default by Certificate Insurer
under its obligations under the related Certificate Insurance Policy (an
"Certificate Insurer Default"), each Holder of the related Insured Certificate
agrees that Certificate Insurer shall be treated by the Depositor, the Servicer
and the Trustee as if Certificate Insurer were the Holder of all of the Insured
Certificates for the purpose (and solely for the purpose) of the giving of any
consent, the making of any direction or the exercise of any voting or other
control rights otherwise given to the Holders of the Insured Certificates
hereunder without any further consent of any Holders of the Insured
Certificates.
(m) With respect to this Section 4.07 the terms "Receipt" and "Received"
shall mean actual delivery to Certificate Insurer and Certificate Insurer's
Fiscal Agent, if any, prior to 12:00 noon, New York City time, on a Business
Day; delivery either on a day that is not a Business Day or after 12:00 noon,
New York City time, shall be deemed to be Receipt on the next succeeding
Business Day and (ii) "Business Day" means any day other than (A) a Saturday or
Sunday or (B) a day on which the Certificate Insurer, banking institutions in
the City of New York, New York, or the city in which the Corporate Trust Office
of the Trustee is located, are authorized or obligated by law or executive order
to be closed. If any notice or certificate given under the related Certificate
Insurance Policy by the Trustee is not in proper form or is not properly
completed, executed or delivered, it shall be deemed not to have been Received.
Certificate Insurer or its Fiscal Agent, if any, shall promptly so advise the
Trustee and the Trustee may submit an amended notice.
(n) All notices, statements, reports, certificates or opinions required by
this Agreement to be sent to the Trustee, the Rating Agencies or the Holders of
the Insured Certificates shall also be sent at such time to Certificate Insurer
at MBIA Insurance Corporation, 000 Xxxx Xxxxxx,
00
Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management--Structured
Finance (IPM-SF) (CSFB Trust Series 2001-S6).
(o) The Certificate Insurer shall be an express third party beneficiary of
this Agreement for the purpose of enforcing the provisions hereof to the extent
of the Certificate Insurer's rights explicitly specified herein as if a party
hereto.
(p) All references herein to the ratings assigned to the Certificates and
to the interests of any Certificateholders shall be without regard to the
related Certificate Insurance Policy.
(q) The Trustee and the Servicer shall cooperate with any reasonable
request by Certificate Insurer to preserve or enforce the rights granted to
Certificate Insurer hereunder.
(r) Any amendment to this Agreement shall require the prior written consent
of Certificate Insurer if such amendment could materially adversely affects the
interest of Certificate Insurer or of the Holders of the related Insured
Certificates.
SECTION 4.08. Distributions on the Uncertificated REMIC 1 Regular
Interests.
(a) On each Distribution Date, the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated REMIC 1 Regular Interests, the
Uncertificated REMIC 1 Regular Interest Distribution Amounts in the following
order of priority to the extent of Available Funds:
(i) Uncertificated REMIC 1 Accrued Interest on the Uncertificated
REMIC 1 Regular Interests for such Distribution Date, plus any
Uncertificated REMIC 1 Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) In accordance with the priority set forth in Section 4.08(b), an
amount equal to the sum of the amounts in respect of principal
distributable on each Class of Certificates under Section 4.01(c), as
allocated thereto.
(b) The amount described in Section 4.08(a)(ii) shall be deemed distributed
to (i) Uncertificated REMIC 1 Regular Interest LTA-I, Uncertificated REMIC 1
Regular Interest LTB-I, Uncertificated REMIC 1 Regular Interest LTP-I and
Uncertificated REMIC 1 Regular Interest LTR-I with the amount to be distributed
allocated among such interests in accordance with the priority assigned to the
Class I-A-1 Certificates, the portion of the Class B Certificates allocable to
the Group I Mortgage Loans, the Class P Certificates and the Class A-R-2 and
Class A-R-3 Certificates, respectively, and (ii) Uncertificated REMIC 1 Regular
Interest LTPO-II, and Uncertificated REMIC 1 Regular Interest LTA- II and
Uncertificated REMIC 1 Regular Interest LTB-II with the amount to be distributed
allocated among such interests in accordance with the following priority and
amounts: first, to Uncertificated REMIC 1 Regular Interest LTPO-II, the Class
II-P Fraction of all principal received on or in respect of each Class II-P
Mortgage Loan, second, to Uncertificated REMIC 1 Regular Interest LTA-II, (A)
1.00 minus (B) the Class II-P Fraction of all principal received on or in
respect of each Class II-P Mortgage Loan and third, to Uncertificated REMIC 1
Regular Interest LTB-II, all principal received on or in respect of each Group
II Mortgage Loan that is not a Class II-P Mortgage Loan.
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(c) The portion of the Uncertificated REMIC 1 Regular Interest Distribution
Amounts described in Section 4.08(a)(ii) shall be deemed distributed by REMIC 1
to REMIC 2 in accordance with the priority assigned to the Certificates relative
to that assigned to the REMIC 1 Certificates under Section 4.02.
(d) In determining from time to time the Uncertificated REMIC 1 Regular
Interest LTA-1 Distribution Amount, Uncertificated REMIC 1 Regular Interest
LTB-l Distribution Amount, Uncertificated REMIC 1 Regular Interest LTP-I
Distribution Amount, Uncertificated REMIC 1 Regular Interest LTR-I Distribution
Amount, Uncertificated REMIC 1 Regular Interest LTA-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTB-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTPO-II Distribution Amount,
Uncertificated REMIC 1 Regular Interest LTA-III Distribution Amount, and
Uncertificated REMIC 1 Regular Interest LTB-III Distribution Amount, Realized
Losses allocated to the Certificates under Section 4.05 shall be allocated to
the Uncertificated REMIC 1 Regular Interests in the same amounts and priorities
as allocated to the Certificates in the corresponding numerical designation in
4.08(b) above.
(e) Notwithstanding the deemed distributions on the Uncertificated REMIC 1
Regular Interests described in this Section 4.08, distributions of funds from
the Certificate Account shall be made only in accordance with Section 4.02.
SECTION 4.09. Distributions on the Uncertificated REMIC 2 Regular
Interests.
(a) On each Distribution Date, the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated REMIC 2 Regular Interests, the
Uncertificated REMIC 2 Regular Interest Distribution Amounts in the following
order of priority to the extent of Available Funds:
(i) Uncertificated REMIC 2 Accrued Interest on the Uncertificated
REMIC 2 Regular Interests for such Distribution Date, plus any
Uncertificated REMIC 2 Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) In accordance with the priority set forth in Section 4.09(b), an
amount equal to the sum of the amounts in respect of principal
distributable on each Class of Certificates under Section 4.02, as
allocated thereto.
(b) The amount described in Section 4.09(a)(ii) shall be deemed distributed
to (i) Uncertificated REMIC 2 Regular Interest MTA-I, (ii) Uncertificated REMIC
2 Regular Interest MTB1-I, (iii) Uncertificated REMIC 2 Regular Interest MTB2-I,
(iv) Uncertificated REMIC 2 Regular Interest MTP-I, (v) Uncertificated REMIC 2
Regular Interest MTR-I, (vi) Uncertificated REMIC 2 Regular Interest MTA-II,
(vii) Uncertificated REMIC 2 Regular Interest MTB1-II, (viii) Uncertificated
REMIC 2 Regular Interest MTB2-II, (ix) Uncertificated REMIC 2 Regular Interest
MTPO-II, (x) Uncertificated REMIC 2 Regular Interest MTA-III, (xi)
Uncertificated REMIC 2 Regular Interest MTB1-III, and (xii) Uncertificated REMIC
2 Regular Interest MTB2-III, with the amount to be distributed allocated among
such interests in accordance with the priority assigned to the (i) Class I-A-1
Certificates, (ii) portion of the Class B-1 Certificates allocable to the Group
I Mortgage Loans, (iii) the portion of the Class B-2 Certificates allocable to
the Group I Mortgage Loans, (iv) Class A-R-3 Certificates, (v) Class P
Certificates, (vi) Class II-A-1 Certificates, (vii) the
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portion of the Class B-1 Certificates allocable to the Group II Mortgage Loans,
(viii) portion of the Class B-2 Certificates allocable to the Group II Mortgage
Loans, (ix) Class II-P Certificates, (x) Class III-A-1 Certificates, (xi) the
portion of the Class B-1 Certificates allocable to the Group III Mortgage Loans,
and (xii) portion of the Class B-2 Certificates allocable to the Group III
Mortgage Loans, respectively, under Section 4.02 until the Uncertificated
Principal Balance of each such interest is reduced to zero.
(c) The portion of the Uncertificated REMIC 2 Regular Interest Distribution
Amounts described in Section 4.09(a)(ii) shall be deemed distributed by REMIC 2
to REMIC 3 in accordance with the priority assigned to the REMIC 3 Certificates
relative to that assigned to the REMIC 2 Certificates under Section 4.02.
(d) In determining from time to time the Uncertificated REMIC 2 Regular
Interest MTA-I Distribution Amount, Uncertificated REMIC 2 Regular Interest
MTB1-I Distribution Amount, Uncertificated REMIC 2 Regular Interest MTB2-I
Distribution Amount, Uncertificated REMIC 2 Regular Interest MTP-I Distribution
Amount, Uncertificated REMIC 2 Regular Interest MTR-I Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTA-II Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTB1-II Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTB2-II Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTPO-II Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTA-III Distribution Amount,
Uncertificated REMIC 2 Regular Interest MTB1- III Distribution Amount and
Uncertificated REMIC 2 Regular Interest MTB2-III Distribution Amount, Realized
Losses allocated to the Certificates under Section 4.05 shall be allocated to
the Uncertificated REMIC 2 Regular Interests in the same amounts and priorities
as allocated to the Certificates in the corresponding numerical designation in
4.09(b) above.
(e) Notwithstanding the deemed distributions on the Uncertificated REMIC 2
Regular Interests described in this Section 4.09, distributions of funds from
the Certificate Account shall be made only in accordance with Section 4.02.
SECTION 4.10. Prepayment Penalties.
For any Mortgage Loan in which a Prepayment Penalty is due, the Trustee
will verify no later than 5 Business Days after each Distribution Date that the
Servicer remitted an amount with respect to such Prepayment Penalty. The Trustee
is not responsible for verifying whether the amount of such Prepayment Penalty
is correct. The Trustee shall provide a report (the "Prepayment Penalty Report")
to the Servicer listing any Mortgage Loans for which a Prepayment Penalty was
due but not received by the Trustee no later than the Business Day immediately
preceding the related Distribution Date. If the Servicer fails to remit a
Prepayment Penalty to the Trustee, and the Trustee notified the Servicer that
such Prepayment Penalty was due but not received and the Servicer fails to remit
such Prepayment Penalty or to provide the Trustee with an Officer's Certificate
providing a written explanation of the Servicer's determination not to pursue
the collection of such Prepayment Penalty within four Business Days of the date
of the Prepayment Penalty Report, the Trustee will promptly provide notice in
writing of such failure to the Depositor. The Trustee shall have no further
responsibilities with respect to such Prepayment Penalties.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of the
applicable minimum denomination) and aggregate denominations per Class set forth
in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B) 100%
of the Class Principal Balance of any Class of Certificates or (C) Certificates
of any Class with aggregate principal Denominations of not less than $1,000,000
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Payments to the
Certificate Insurer shall be made by wire transfer of immediately accessible
funds.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer upon the written order of the
Depositor. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
countersignature and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless countersigned
by the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall countersign the Certificates to be issued at the written direction
of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restriction or transfer imposed under Article
V of this Agreement or under applicable law with respect to any transfer of any
Certificate, or any interest therein, other than to require delivery of the
certification(s) and/or opinions of counsel described in Article V applicable
with respect to changes in registration of record ownership of Certificates in
the Certificate Register.
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The Trustee shall have no liability for transfers, including transfers made
through the book-entry facilities of the Depository or between or among
Depository Participants or beneficial owners of the Certificates made in
violation of applicable restrictions.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.06, a Certificate Register for the Trust Fund
in which, subject to the provisions of subsections (b) and (c) below and to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of transfer of any Certificate,
the Trustee shall execute and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently disposed of by the Trustee in accordance with the
Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such state securities laws. Except in connection
with any transfer of a Private Certificate by the Depositor to any affiliate, in
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the form
set forth in Exhibit J (the "Transferor Certificate") and (i) deliver a letter
in substantially the form of either Exhibit K (the "Investment Letter") or
Exhibit L (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act. The
Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage
94
Loans and such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Servicer shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Seller and the Servicer against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate or a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit K
or Exhibit L), to the effect that such transferee is not an employee benefit
plan or arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such transfer, or
(ii) in the case of any such ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a plan
or arrangement subject to Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of either the Trustee or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding of
such ERISA-Restricted Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Trustee by the transferee's (including an initial
acquiror's) acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the delivery to the Trustee of an Opinion of
Counsel satisfactory to the Trustee as described above shall be void and of no
effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
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(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Residual Certificate unless, in addition to
the certificates required to be delivered to the Trustee under subparagraph
(b) above, the Trustee shall have been furnished with an affidavit (a
"Transfer Affidavit") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the Trustee shall
be paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed
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under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Seller or the
Servicer, to the effect that the elimination of such restrictions will not cause
the Trust Fund hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, (y) the Depositor at its
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option advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository or (z) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Sellers, the Servicer, the Depositor or the Trustee
shall be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Depositor shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) 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 (b) there is delivered to the Trustee (and the
Certificate Insurer with respect to the Insured Certificates) such security or
indemnity as may be required by it to hold it harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, countersign 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 Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Servicer, the Trustee (and the Certificate Insurer with respect to the
Insured Certificates) and any agent of the Servicer (and the Certificate Insurer
with respect to the Insured Certificates) or the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and none of the Servicer (and the Certificate Insurer
with respect to the Insured Certificates), the Trustee or any agent of the
Servicer (and the Certificate Insurer with respect to the Insured Certificates)
or the Trustee shall be affected by any notice to the contrary.
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SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication which
such Certificateholders propose to transmit, or if the Depositor or the Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in Pennsylvania where the Pool Insurance
Policy shall be delivered. The Trustee initially designates its Corporate Trust
Office for such purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR, THE SELLER AND THE SERVICER
SECTION 6.01. Respective Liabilities of the Depositor, the Sellers and the
Servicers.
The Depositor, the Seller and the Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor, the Seller or the
Servicer.
The Depositor, the Seller and the Servicer will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Notwithstanding the foregoing, the Seller or the Servicer may be merged or
consolidated into another Person in accordance with the following paragraph.
Any Person into which the Depositor, the Seller or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor, the Seller or the Servicer shall be a party, or any
person succeeding to the business of the Depositor, the Seller or the Servicer,
shall be the successor of the Depositor, the Seller or the related Servicer, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, provided, however, that the successor or surviving
Person with respect to a merger or consolidation of the Servicer shall be an
institution which is a FNMA or FHLMC approved company in good standing. In
addition to the foregoing, there must be delivered to the Trustee and the
Certificate Insurer a letter from each of the Rating Agencies, determined
without regard to the Certificate Insurance Policy with respect to the Insured
Certificates, to the effect that such merger, conversion or consolidation of the
Servicer will not result in a disqualification, withdrawal or downgrade of the
then current rating of any of the Certificates.
SECTION 6.03. Limitation on Liability of the Depositor, the Seller, the
Servicer and Others.
None of the Depositor, the Seller, the Servicer nor any of the directors,
officers, employees or agents of the Depositor, the Seller or the Servicer shall
be under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Seller, the Servicer or any such Person
against any breach of representations or warranties made by it herein or protect
the Depositor, the Seller, the Servicer or any such Person from any liability
which would otherwise be imposed by reasons of willful
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misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, the
Seller, the Servicer and any director, officer, employee or agent of the
Depositor, the Seller or the Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. None of the Depositor, the Seller or the Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that any
of the Depositor, the Seller or the Servicer may in its discretion undertake any
such action that it may deem necessary or desirable in respect of this Agreement
and the rights and duties of the parties hereto and interests of the Trustee and
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Seller and the Servicer
shall be entitled to be reimbursed therefor out of the Collection Account.
SECTION 6.04. Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment, pursuant to the provisions of Section
7.02, of a successor servicer which (i) has a net worth of not less than
$15,000,000 and (ii) is a FNMA or FHLMC approved company in good standing and
receipt by the Trustee and the Certificate Insurer of a letter from each Rating
Agency (determined without regard to the Certificate Insurance Policy with
respect to the Insured Certificates) that such a resignation and appointment
will not result in a qualification, withdrawal or downgrading of the then
current rating of any of the Certificates, or (b) upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee
and the Certificate Insurer. No such resignation shall become effective until
the Trustee or a successor servicer shall have assumed the Servicer's
responsibilities, duties, liabilities and obligations hereunder and the
requirements of Section 7.02 have been satisfied.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events:
(i) any failure by the Servicer to make any deposit or payment
required pursuant to this Agreement (including but not limited to Advances
to the extent required under Section 4.01) which continues unremedied for a
period of five days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or the Depositor, or to the Servicer and the
Trustee by the Holders of Certificates having not less than 25% of the
Voting Rights evidenced by the Certificates; or
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(ii) any failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Servicer set forth in this Agreement, or if any of the representations
and warranties of the Servicer in Section 2.03(b) proves to be untrue in
any material respect, which failure or breach continues unremedied for a
period of 30 days after the date on which written notice of such failure or
breach, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or the Depositor, or to the Servicer and the
Trustee by the Holders of Certificates having not less than 25% of the
Voting Rights evidenced by the Certificates; or
(iii) failure by the Servicer to maintain, if required, its license to
do business in any jurisdiction where the related Mortgaged Property is
located; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of or
commence a voluntary case under, any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or cease its
normal business operations for three Business Days; or
Other than an Event of Default resulting from a failure of the Servicer to
make any Advance, if an Event of Default shall occur, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, or at the direction of the Holders of Certificates evidencing
not less than 51% of the Voting Rights evidenced by the Certificates, the
Trustee shall by notice in writing to the Servicer (with a copy to each Rating
Agency, the Certificate Insurer and the Pool Insurer), terminate all of the
rights and obligations of the Servicer under this Agreement and in and to the
related Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. If an Event of Default results from the failure of
the Servicer to make an Advance, the Trustee shall, by notice in writing to the
Servicer and the Depositor (with a copy to each Rating Agency, the Certificate
Insurer and the Pool Insurer), terminate all of the rights and obligations of
the Servicer under this Agreement and in and to the related Mortgage Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
Upon receipt by the Servicer of such written notice of termination, all
authority and power of the Servicer under this Agreement, whether with respect
to the related Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee or its nominee. Upon written request from the
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Trustee, the Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments, place in
such successor's possession all related Mortgage Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the related Mortgage Loans and related documents,
at the Servicer's sole expense. The Servicer shall cooperate with the Trustee
and such successor in effecting the termination of the Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Collection Account or
Escrow Account or thereafter received with respect to the related Mortgage
Loans. The Trustee shall thereupon make any Advance. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the related Mortgage Loans and related documents,
or otherwise.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 of this Agreement or the resignation of the Servicer
pursuant to Section 6.04, the Trustee shall, subject to and to the extent
provided herein and subject to the written approval of the Pool Insurer, be the
successor to the Servicer, but only in its capacity as servicer under this
Agreement, and not in any other, and the transactions set forth herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the related Mortgage Loans that the Servicer would have been entitled to charge
to the Collection Account, provided that the terminated Servicer shall
nonetheless be entitled to payment or reimbursement as provided in Section 3.08
to the extent that such payment or reimbursement relates to the period prior to
termination of the Servicer. Notwithstanding the foregoing, if the Trustee has
become the successor to the Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to 4.01 hereof, or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency (such acknowledgment to be determined without
regard to the Certificate Insurance Policy), as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. Any successor to the Servicer shall be
an institution which is a FNMA or FHLMC approved seller/servicer for first and
second loans in good standing, which has a net worth of at least $15,000,000,
which is willing to service the related Mortgage Loans, which is approved in
writing by the Pool Insurer and which executes and delivers to the Depositor and
the Trustee an agreement accepting such delegation and assignment, containing an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer (other than liabilities of the
Servicer under Section 6.03 hereof incurred prior to termination of the Servicer
under Section 7.01 hereunder), with like effect as if originally named as a
party to this Agreement; provided that each Rating Agency acknowledges that its
rating of the Certificates
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in effect immediately prior to such assignment and delegation will not be
qualified, withdrawn or downgraded as a result of such assignment and delegation
(without regard to the Certificate Insurance Policy). Pending appointment of a
successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to the limitations described
herein, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the related Mortgage Loans as
it and such successor shall agree; provided, however, that no such compensation
shall be in excess of the Servicing Fee. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other successor
servicer shall be deemed to be in default by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
In connection with the termination or resignation of any Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, in which case the
predecessor Servicer shall cooperate with the successor Servicer in causing MERS
to revise its records to reflect the transfer of servicing to the successor
Servicer as necessary under MERS' rules and regulations, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the successor Servicer. The predecessor Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this subsection.
Any successor to the Servicer shall give notice to the Mortgagors of such
change of servicer and shall, during the term of its service as servicer,
maintain in force the policy or policies that the Servicer is required to
maintain pursuant to this Agreement.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders,
Certificate Insurer and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder actually known to the Trustee, unless such Event of
Default shall have been cured or waived.
SECTION 7.04. Termination by the Certificate Insurer.
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(a) In addition to the other termination provisions herein, the Certificate
Insurer has the right to terminate all of the Servicer's rights as servicer
hereunder, upon not less than 30 days prior written notice to the Servicer with
a copy to the Trustee, the Pool Insurer and each Rating Agency, if the
Certificate Insurer reasonably determines, after consultation with the Servicer,
that the litigation described in Schedule I to the Insurance Agreement or any
other similar litigation to which the Servicer is a party, including any final
judgement or settlement resulting from such litigation, may, in the good faith
judgment of the Certificate Insurer, reasonably be expected to result in a
material adverse effect on the Servicer's ability to perform its obligations as
servicer under this Agreement. Any such termination will be subject to all
applicable requirements under this Agreement, except as modified in this Section
7.04. Any such termination shall not affect the Servicer's entitlement to
payment or reimbursement as provided in Section 3.08, including for servicing
compensation, to the extent that such payment or reimbursement arises relates to
the period prior to the termination if the Servicer.
(b) Notwithstanding the foregoing, no termination under this Section 7.04
shall be effective until the completion of the purchase of the rights to service
the Mortgage Loans under this Agreement from the Servicer by a successor
servicer, as provided in subsections (d) and (e) below. Following the date of
giving of notice by the Certificate Insurer under subsection (a) above, the
Servicer shall have a period of up to 90 days during which to arrange for the
purchase of the servicing rights by a successor servicer. If the servicing
rights are not purchased during that period, then the Certificate Insurer shall
have an additional period of up to 90 days in which to arrange for the purchase
of the servicing rights from the Servicer by a successor servicer. If the
servicing rights are still not purchased at the end of the second 90 day period,
then the Certificate Insurer's notice of termination under subsection (a) will
be of no further effect.
(c) Any successor servicer under this Section 7.04 must be an institution
which is a FNMA or FHLMC approved seller/servicer for first and second mortgage
loans in good standing, which has a net worth of at least $15,000,000, and which
is approved in writing by the Pool Insurer and the Certificate Insurer.
Furthermore, as a condition to the designation of any successor servicer, each
Rating Agency must acknowledge that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified,
withdrawn or downgraded as a result of such designation (without regard to the
Certificate Insurance Policy). Any successor servicer shall comply with the
second and third paragraphs of Section 7.02. The Trustee may bid for and become
the successor servicer in connection with a termination under this Section 7.04,
but only upon payment of consideration for the purchase of the rights to service
the Mortgage Loans under this Agreement as contemplated in this Section 7.04.
Pending designation of a successor servicer under this Section 7.04, the
Servicer shall continue to act as servicer hereunder, provided that no
termination under Section 7.01 occurs. The Servicer shall cooperate with the
Trustee and the successor servicer in all actions necessary to effectuate the
transfer of servicing responsibilities.
(d) In connection with any solicitation or sale of the rights to service
the Mortgage Loans under this Agreement by the Servicer to a successor servicer,
the following procedures shall apply. The Servicer shall prepare appropriate
"request for proposal" materials and shall provide copies thereof to the
Certificate Insurer and the Trustee. The Servicer shall solicit good faith bids
for the rights to service the Mortgage Loans under this Agreement from at least
3 entities that meet the eligibility criteria of Section 7.02 and are reasonably
acceptable to the Trustee, the Pool Insurer
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and the Certificate Insurer; or, if 3 such entities cannot be located, then from
as many entities meeting the above requirements as can be located by the
Servicer. The bid proposal shall require the successful bidder, as a condition
of such bid, to execute an agreement containing an assumption by such entity of
the rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer (other than liabilities of the Servicer under Section 6.03 hereof
incurred prior to termination of the Servicer under Section 7.04 hereunder),
with like effect as if originally named as a party to this Agreement, and
agreeing to accept as compensation the servicing compensation provided in
Section 3.14 herein. The Servicer shall be responsible for all out-of-pocket
expenses incurred in connection with the attempt to sell the rights to service
the Mortgage Loans, as well as any out-of-pocket costs incurred in connection
with the transfer to a successor servicer under this Section 7.04, including any
such costs that are incurred by the Servicer, the Trustee, the Certificate
Insurer or any Custodian. Subject to the foregoing and to any other outstanding
obligations of the Servicer under this Agreement, the Servicer shall be entitled
to receive the net cash proceeds of the sale of the servicing rights to the
successor servicer.
(e) Any solicitation or sale of the rights to service the Mortgage Loans
under this Agreement to a successor servicer arranged by the Certificate Insurer
shall be conducted under procedures similar to subsection (d) above, using
"request for proposal" materials prepared by the Servicer. The bids shall be
solicited by the Certificate Insurer, and the Servicer will be responsible for
all out-of-pocket costs of the Certificate Insurer in arranging or attempting to
arrange any such sale.
(f) The Certificate Insurer shall be a third party beneficiary of the
provisions of this Section 7.04.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of the Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) unless an Event of Default actually known to the Trustee shall
have occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(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 Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates 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.
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SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
affiliates, accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the
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Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document, or of MERS or the
MERS(R) System, other than with respect to the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates and may transact business with the Depositor, the
Seller, the Servicer and their affiliates, with the same rights as it would have
if it were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Certificate Account on each Distribution Date
prior to making distributions pursuant to Section 4.02 an amount equal to the
Trustee Fee for such Distribution Date. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Depositor and the
Servicer and held harmless against any loss, liability or expense (including
reasonable attorney's fees and expenses) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Custodial
Agreement, (c) the Certificates, or (d) the performance of any of the Trustee's
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Servicer. Such indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee hereunder. Without limiting the foregoing, the Depositor covenants
and agrees, except as otherwise agreed upon in writing by the Depositor and the
Trustee, and except for any such expense, disbursement or advance as may arise
from the Trustee's negligence, bad faith or willful misconduct, to pay or
reimburse the Trustee, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform acts
or services hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates.
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Except as otherwise provided herein, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee, Registrar, Tax Matters
Person or Paying Agent hereunder or for any other expenses.
SECTION 8.06. Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
Ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
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. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor and its affiliates or the Servicer and its
affiliates; provided, however, that such entity cannot be an affiliate of the
Seller, the Depositor or the Servicer other than the Trustee in its role as
successor to the Servicer.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor, the Seller,
the Certificate Insurer, the Servicer and each Rating Agency not less than 60
days before the date specified in such notice, when, subject to Section 8.08,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation or removal (as provided below), the resigning or removed
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and the Seller and one
copy to the successor trustee.
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The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Servicer and the Seller, one complete set to the
Trustee so removed and one complete set to the successor so appointed. Notice of
any removal of the Trustee shall be given to each Rating Agency and the
Certificate Insurer by the successor trustee. All costs and expenses incurred by
the Trustee in connection with the removal of the Trustee without cause shall be
reimbursed to the Trustee from amounts on deposit in the Collection Account.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Servicer and the Seller an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
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SECTION 8.10. 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 Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon
the Trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly (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 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 applicable Trust Fund 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 trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate trustee
or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) The Depositor, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to
any such 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 separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of
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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
Servicer and the Depositor.
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.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which the REMIC elections
are to be made, as set forth in the Preliminary Statement, shall constitute, and
that the conduct of matters relating to each such segregated pool of assets
shall be such as to qualify such assets as, a "real estate mortgage investment
conduit" as defined in and in accordance with the Trust Fund Provisions. In
furtherance of such intention, the Trustee covenants and agrees that it shall
act as agent (and the Trustee is hereby appointed to act as agent) on behalf of
the Trust Fund and that in such capacity it shall: (a) prepare and file, or
cause to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each of REMIC 1, REMIC 2, and REMIC 3 containing such information and at the
times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby; (b) within thirty days of the Closing
Date, furnish or cause to be furnished to the Internal Revenue Service, on Forms
8811 or as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such form, and update such information at the time or
times in the manner required by the Code; (c) make or cause to be made elections
that the assets of each of REMIC 1, REMIC 2 and REMIC 3 be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, nominee or
other middleman) of a Non-Permitted Transferee, or a pass- through entity in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged to
the Person liable for such tax); (f) to the extent that they are under its
control, conduct matters relating to such assets at all times that any
Certificates are
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outstanding so as to maintain the status as a REMIC under the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take any action
that would cause the termination of the REMIC status; (h) pay, from the sources
specified in the last paragraph of this Section 8.11, the amount of any federal
or state tax, including prohibited transaction taxes as described below, imposed
on the Trust Fund prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (i) ensure that federal, state
or local income tax or information returns shall be signed by the Trustee or
such other person as may be required to sign such returns by the Code or state
or local laws, regulations or rules; (j) maintain records relating to the Trust
Fund, including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent the Trust Fund in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
the Trust Fund, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of the Trust
Fund, and otherwise act on behalf of the Trust Fund in relation to any tax
matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of the
Trust Fund as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Trust Fund as defined in Section 860G(c) of the
Code, on any contribution to the Trust Fund after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, if not paid as
otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any
such other tax arises out of or results from a breach by the Trustee of any of
its obligations under this Agreement, (ii) the Servicer or the Seller, in the
case of any such minimum tax, if such tax arises out of or results from a breach
by the Servicer or the Seller of any of their obligations under this Agreement
or (iii) the Seller, if any such tax arises out of or results from the Seller's
obligation to repurchase a related Mortgage Loan pursuant to Section 2.02 or
2.03 or (iv) in all other cases, or in the event that the Trustee, the Servicer
or Seller fails to honor its obligations under the preceding clauses (i), (ii)
or (iii), any such tax will be paid with amounts otherwise to be distributed to
the Certificateholders, as provided in Section 4.02.
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SECTION 8.12. Periodic Filings.
The Trustee shall, on behalf of the Trust Fund, cause to be 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. In
connection with the preparation and filing of such periodic reports, the
Depositor and the Servicer shall timely provide to the Trustee all material
information available to them which is required to be included in such reports.
The Trustee shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the rights, obligations and responsibilities of
the Depositor, the Seller, the Servicer and the Trustee created hereunder with
respect to the Trust Fund shall terminate upon the earlier of (a) the purchase
by the Servicer of all Mortgage Loans (and REO Properties) remaining at the
price equal to the sum of (A) 100% of the Stated Principal Balance of each
Mortgage Loan (other than in respect of REO Property) plus one month's accrued
interest thereon at the applicable Mortgage Rate and (B) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Depositor at
the expense of the Depositor and (y) the Stated Principal Balance of each
Mortgage Loan related to any REO Property, in each case plus accrued and unpaid
interest thereon at the applicable Mortgage Rate and (b) the later of (i) the
maturity or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders and the Certificate
Insurer of all amounts required to be distributed to them pursuant to this
Agreement. In no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof. The right to repurchase all Mortgage Loans
and REO Properties pursuant to clause (a) above shall be conditioned upon the
aggregate Stated Principal Balance of the Mortgage Loans at the time of any such
repurchase, aggregating less than five percent of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans and the payment to the Certificate
Insurer of all amounts due to it.
SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Trustee determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Collection Accounts and Certificate Account, the Trustee
shall promptly send a final distribution notice to each Certificateholder and
the Certificate Insurer. If the Depositor elects to terminate the Trust Fund
pursuant to Section 9.01, at least 20 days prior to the date notice is to be
mailed to the affected Certificateholders the Depositor shall notify the
Servicer and the Certificate Insurer and the Trustee of the date the Depositor
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders shall surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day and
not later than the 15th day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable
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to such Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Trustee shall give such notice to each Rating Agency at the time such notice
is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02, in the
case of the Certificateholders, in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, an amount equal
to (i) as to each Class of Regular Certificates, the Certificate Balance thereof
plus (a) accrued interest thereon (or on their Notional Amount, if applicable)
in the case of an interest-bearing Certificate, and (b) any Class II-P Deferred
Amounts in the case of the Class II-P Certificates allocated to such Classes of
Certificates and (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Collection Accounts (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund concurrently on a pro rata basis.
SECTION 9.03. Additional Termination Requirements.
(b) In the event that the Servicer exercises its purchase option with
respect to the Mortgage Loans as provided in Section 9.01, at such time as the
Mortgage Loans are so purchased, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel, at the expense of the Depositor, to
the effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC as defined in Section 860F of the Code, or (ii) cause REMIC 1, REMIC 2
or REMIC 3 to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(1) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Trustee under Section 9.02, the Depositor
shall prepare and the Trustee, at the expense of the Depositor,
shall adopt a plan of complete liquidation within the meaning of
Section 860F(a)(4) of the Code which, as evidenced by an Opinion
of Counsel (which opinion shall not be an expense of the Trustee,
the Tax Matters Person or the Trust Fund), meets the requirements
of a qualified liquidation;
117
(2) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of
the Trust Fund to the Depositor for cash in accordance with
Section 9.01; and
On the date specified for final payment of the Certificates,
the Trustee shall, after payment of any unreimbursed Advances,
Servicing Advances, Servicing Fees or other fee compensation
payable to the Servicer pursuant to this Agreement, make final
distributions of principal and interest on the Certificates in
accordance with Section 4.02 and distribute or credit, or cause
to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand after such final payment (other
than the cash retained to meet claims), and the Trust Fund (and
any REMIC) shall terminate at that time.
(c) The Trustee as agent for REMIC 1, REMIC 2 and REMIC 3 hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Depositor, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
(d) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Depositor to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer, the Seller and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Seller or the Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall not
be an expense of the Trustee or the Trust Fund, but shall be at the expense of
the party proposing such amendment), adversely affect in any material respect
the interests of any Certificateholder; provided, however, that no such Opinion
of Counsel shall be required if the Person requesting the amendment obtains a
letter from each Rating Agency (determined without regard to the Certificate
Insurance Policy) stating that the amendment would not result in the downgrading
or withdrawal of the respective ratings then assigned to the Certificates; it
being understood and agreed that any such letter in and of itself will not
represent a determination as to the materiality of any such amendment and will
represent a determination only as to the credit issues affecting any such
rating. The Trustee, the Depositor, the Seller and the Servicer also may at any
time and from time to time amend this
118
Agreement without the consent of the Certificateholders to modify, eliminate or
add to any of its provisions to such extent as shall be necessary or helpful to
(i) maintain the qualification of REMIC 1, REMIC 2 or REMIC 3 as a REMIC under
the Code, (ii) avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim at any time prior to the
final redemption of the Certificates or (iii) comply with any other requirements
of the Code, provided that the Trustee and the Certificate Insurer have been
provided an Opinion of Counsel, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful to, as
applicable, (i) maintain such qualification, (ii) avoid or minimize the risk of
the imposition of such a tax or (iii) comply with any such requirements of the
Code.
This Agreement may also be amended from time to time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66%, or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding. Any amendments to this Agreement shall
be subject to Section 4.07(r).
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it and the Certificate
Insurer shall have first received an Opinion of Counsel, which opinion shall not
be an expense of the Trustee or the Trust Fund, but shall be at the expense of
the party preparing such amendment, to the effect that such amendment will not
cause the imposition of any tax on the Trust Fund or the Certificateholders or
cause REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement, the
Trustee shall furnish written notification of the substance or a copy of such
amendment to each Certificateholder if the consent of Certificateholders was
required, the Certificate Insurer and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited
119
by this Agreement and that all requirements for amending this Agreement have
been complied with; and (ii) either (A) the amendment does not adversely affect
in any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 10.01.
SECTION 10.02. Recordation of Agreement; Counterparts.
This Agreement (other than Schedule IA) is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at its expense,
but only upon direction by the Trustee accompanied by an Opinion of Counsel to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. [Reserved]
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency and the Certificate Insurer with respect to each of the
following of which it has actual knowledge:
(1) Any material change or amendment to this Agreement;
(2) The occurrence of any Event of Default that has not been cured;
(3) The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
(4) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02 and 2.03; and
120
(5) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency and
the Certificate Insurer copies of the following to the extent such items are in
its possession:
(1) Each report to Certificateholders described in Section 4.06 and
3.19;
(2) Each annual statement as to compliance described in Section 3.16;
(3) Each annual independent public accountants' servicing report
described in Section 3.17; and
(4) Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
All directions, demands and notices hereunder shall be in writing and shall
be deemed to have been duly given when delivered to (a) in the case of the
Depositor and the Seller, Eleven Madison Avenue, 4th Floor, New York, New York
10010, Attention: Xxxxxxx Xxxxxx (with a copy to Credit Suisse First Boston
Mortgage Securities Corp., Eleven Madison Avenue, 4th Floor, New York, New York
10010, Attention: Office of the General Counsel), (b) in the case of the
Trustee, the Corporate Trust Office or such other address as the Trustee may
hereafter furnish to the Depositor and the Servicer, (c) in the case of the
Servicer, 0000 XX Xxxxxxx, Xxxxxxxx, Xxxxxx 00000 Attention: Xxxxxxx, with a
copy to Stoel Rives LLP, 000 XX Xxxxx, Xxxxxxxx, Xxxxxx 00000 Attention: Xxxx
Xxxxxx or such other address as may be hereafter furnished in writing to the
Depositor and the Trustee by the Servicer, (d) in the case of each of the Rating
Agencies, the address specified therefor in the definition corresponding to the
name of such Rating Agency and (e) in the case of the Certificate Insurer, at
the address specified in Section 4.07(n). Notices to Certificateholders shall be
deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Sections 6.02 and 6.04, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor;
provided, however, that neither the Depositor nor the Trustee shall consent to
any such assignment unless each Rating Agency has confirmed in writing
(determined without regard to the Certificate Insurance Policy) that such
assignment will not cause a reduction or withdrawal of the ratings then assigned
by it to any Class of Certificates.
121
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 10.09. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
122
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller and the Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By:________________________________
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.,
as Seller
By:________________________________
Name:
Title:
WILSHIRE CREDIT CORPORATION,
as Servicer
By:________________________________
Name:
Title:
[Notary pages to be attached]
15
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
A-1
Certificate No.[__] [___]% Interest Rate
Cut-off Date: Initial Certificate Balance
March 1, 2001 of this Certificate ("Denomination"):
$[_________]
First Distribution Date: Initial Certificate Balances
April 25, 2001 of all Certificates of this Class:
$[_________]
Maturity Date:
[___________] CUSIP: [___________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, second lien residential mortgage
loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or
the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as trustee
(the
A-2
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001.
HE CHASE MANHATTAN BANK,
s Trustee
y
-----------------------------------
Countersigned:
By
----------------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATE CERTIFICATE]
[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.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE [BUT NOT IF THE DEPOSITOR DELIVERS TO THE
TRUSTEE AN OFFICER'S CERTIFICATE TO THE EFFECT THAT SUCH RESTRICTIONS NO LONGER
APPLY] EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
OR, IF THE PURCHASER IS AN INSURANCE COMPANY, A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
TO THE CODE WITHOUT THE OFFICER'S CERTIFICATE OR THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
[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 ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT
B-1
AND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
B-2
Certificate No.[__] [___]% Interest Rate
Cut-off Date: Initial Certificate Balance
March 1, 2001 of this Certificate ("Denomination"):
$[_________]
First Distribution Date: Initial Certificate Balances
April 25, 2001 of all Certificates of this Class:
$[_________]
Maturity Date:
[______________] CUSIP: [_______]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, second lien residential
mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or
the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire
B-3
Credit Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Seller, the Servicer or
the Depositor. The Holder hereof desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001.
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------------
Countersigned:
By
-----------------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
B-5
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE COMPANY, A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
C-1
Certificate No.[__] [____]% Interest Rate
Cut-off Date: Initial Certificate Balance of this
March 1, 2001 Certificate("Denomination"):
$[________]
First Distribution date: Initial Certificate Balances
April 25, 2001 of all Certificates of this Class:
$[________]
Maturity Date:
[___________] CUSIP: [__________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing the distributions allocable to the Class A-R-[1][2][3]
Certificates with respect to a Trust Fund consisting primarily of a
pool of conventional mortgage loans (the "Mortgage Loans") secured by
fixed rate, second lien residential mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or
the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [______________________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned to such terms in the Agreement. This
Certificate is issued under and is
C-2
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R-[1][2][3]
Certificate at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York.
No transfer of a Class A-R-[1][2][3] Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee or the Trust Fund,
(ii) if the purchaser is an insurance company, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under PTCE 95-60 or (iii) in the case of any such Class A-R-[1][2][3]
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee to the effect that the
purchase or holding of such Class A-R-[1][2][3] Certificate will not result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee or the Trust
Fund. Notwithstanding anything else to the contrary herein, any purported
transfer of a Class A-R-[1][2][3] Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R-[1][2][3] Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R-[1][2][3] Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R-[1][2][3] Certificate
may be transferred without delivery to the Trustee of (a) a transfer affidavit
of the proposed transferee and (b) a transfer certificate of the transferor,
each of such documents to be in the form described in the Agreement, (iii) each
person holding or acquiring any Ownership Interest in this Class A-R-[1][2][3]
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Class A-R-[1][2][3]
Certificate must agree not to transfer an Ownership Interest in this Class
A-R-[1][2][3] Certificate if it has actual knowledge that the proposed
transferee is not a Permitted Transferee and (v) any attempted or purported
transfer of any Ownership Interest in this Class A-R- [1][2][3] Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001.
THE CHASE MANHATTAN BANK,
as Trustee
By
-----------------------------
Countersigned:
By
----------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No.[__] [___]% Interest Rate
Cut-off Date: Initial Notional Amount
March 1, 2001 of this Certificate ("Denomination"):
$[_________]
First Distribution Date: Initial Notional Amounts
April 25, 2001 of all Certificates of this Class:
$[_________]
Maturity Date:
[____________] CUSIP: [____________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, second lien residential
mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate is payable solely from the assets of the Trust and does
not evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicer or the Trustee referred to below or any of
their respective affiliates. This Certificate and the Mortgage Loans are not
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
D-2
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001
THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------------
Countersigned:
By
----------------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
D-4
EXHIBIT E
[FORM OF PRINCIPAL ONLY CERTIFICATE]
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
E-1
Certificate No. [___] [_____]% Interest Rate
Cut-off Date: Initial Certificate Balance
March 1, 2001 of this Certificate ("Denomination"):
$[_________]
First Distribution Date: Initial Certificate Balances
April 25, 2001 of all Certificates of this Class:
$[_________]
Maturity Date:
[_________] CUSIP: [__________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by fixed and adjustable rate, second lien
residential mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or
the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Cede & Co., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned to such terms in the Agreement. This
Certificate is issued under and is subject to the terms,
E-2
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
E-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------------
Countersigned:
By
----------------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
E-4
EXHIBIT F
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
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 ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
F-1
Certificate No. [___] [_____]% Interest Rate
Cut-off Date: Initial Certificate Balance
April 1, 2001 of this Certificate ("Denomination"):
$[__________]
First Distribution Date: Initial Certificate Balances
March 25, 2001 of all Certificates of this Class:
$[__________]
Maturity Date:
[_________] CUSIP: [__________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by fixed and adjustable rate, second lien
residential mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class P
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class P
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Credit Suisse First Boston Mortgage Securities Corp., the
Master Servicer, or the Trustee referred to below or any of their respective
affiliates.
This certifies that _________________ is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the Denomination of this Class P Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Credit Suisse First Boston Mortgage
Securities Corp. (the "Company"). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of March 1, 2001 (the "Agreement") between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Class P Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement
F-2
the Holder of this Class P Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to be
made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Company in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Company of an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Master Servicer or the Company; or there shall be delivered to the
Trustee and the Company a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee and the Company against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class P
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class P Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
F-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 29, 2001
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------------
Countersigned:
By
-------------------------------------
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trustee
F-4
EXHIBIT G
FORM OF REVERSE OF CERTIFICATES
G-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp., Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the
G-2
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Servicer,
the Seller, the Depositor, the Trustee, or any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the sum of the aggregate Stated Principal
Balance of the Mortgage Loans and the appraised value of the REO Properties at
the time of repurchase is less than 5% of the sum of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans, the Depositor will have the option to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and REO
Properties at a purchase price determined as provided in the Agreement. In the
event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last
G-3
survivor of the descendants living at the date of the Agreement of a certain
person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
G-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number __________ , or, if mailed by check, to
-------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
G-5
This information is provided by _________________________, the assignee named
above, or _______________________, as its agent.
G-6
EXHIBIT H
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer/s]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among the Credit Suisse
First Boston Mortgage Securities Corp. as depositor, DLJ
Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as servicer ("Wilshire") and The
Chase Manhattan Bank as trustee (the "Trustee"),
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that, as to each Mortgage Loan listed in each
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following form:
"Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of the Mortgage (which may be included in a
blanket assignment or assignments).
Based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and relate to such Mortgage Loan.
The Custodian 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 representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on either Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
H-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANK ONE TRUST COMPANY, N.A.
as Custodian
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
H-2
EXHIBIT I
FORM OF FINAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer/s]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp. as depositor, DLJ Mortgage Capital,
Inc. as seller ("DLJMC"), Wilshire Credit Corporation as
servicer ("Wilshire") and The Chase Manhattan Bank as trustee
(the "Trustee"), CSFB Mortgage Pass-Through Certificates,
Series 2001-S6
----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in each
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed in the form provided in Section
2.01(b) of the Pooling and Servicing Agreement, with all intervening
endorsements, and including any riders to the Mortgage Note, showing a complete
chain of endorsement from the originator to the last named endorsee;
(ii) with respect to any Lost Mortgage Note, a lost note affidavit stating
that the original Mortgage Note was lost or destroyed, together with a copy of
such Mortgage Note;
(iii) the original of any guarantee executed in connection with the
Mortgage Note (if any);
(iv) the original Mortgage with evidence of recording thereon, or copies
certified by the related recording office or if the original Mortgage has not
yet been returned from the recording office, a copy certified by or on behalf of
the related Seller indicating that such Mortgage has been delivered for
recording;
I-1
(v) the originals of all assumption, modification, consolidation or
extension agreements (or, if an original of any of these documents has not been
returned from the recording office, a copy thereof certified by or on behalf of
the applicable Seller, the original to be delivered to such Seller forthwith
after return from such recording office), with evidence of recording thereon, if
any;
(vi) a duly executed assignment of the Mortgage in the form provided in
Section 2.01(b) of the Pooling and Servicing Agreement; provided, however, that
if the Depositor has certified or the Custodian otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a copy of
the Assignment of the Mortgage (excluding information to be provided by the
recording office);
(vii) the original of any intervening recorded Assignments of Mortgage,
showing a complete chain of assignment from origination to the related Seller,
including warehousing assignments, with evidence of recording thereon (or, if an
original intervening Assignment of Mortgage has not been returned from the
recording office, a copy thereof certified by or on behalf of the applicable
Seller);
(viii) the original or duplicate original lender's title insurance policy
and all riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company (or, in appropriate jurisdictions, attorney's
opinion of title and abstract of title); and
(ix) the original primary mortgage insurance certificate, if any or copy of
mortgage insurance certificate.
Based on its review and examination and only as to the foregoing documents,
(a) such documents appear regular on their face and related to such Mortgage
Loan, and (b) the information set forth in items (i), (ii), (iii), (iv), (vi),
(ix) and (x) of the definition of the "Mortgage Loan Schedule" in Article I of
the Pooling and Servicing Agreement accurately reflects information set forth in
the Mortgage File.
The Custodian 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 Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on either Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
I-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANK ONE TRUST COMPANY, N.A.
as Custodian
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
I-3
EXHIBIT J
TRANSFER AFFIDAVIT
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Class [_______]
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R-[1][2][3] Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, (the "Agreement"),
relating to the above-referenced Series, among Credit Suisse First Boston
Mortgage Securitites Corp. as depositor, DLJ Mortgage Capital, Inc. as seller
("DLJMC"), Wilshire Credit Corporation as servicer ("Wilshire") and The Chase
Manhattan Bank as trustee (the "Trustee"). Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate either (i) for its own account or (ii) as nominee,
trustee or agent for another Person and has attached hereto an affidavit from
such Person in substantially the same form as this affidavit. The Transferee has
no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
J-1
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person to
whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as EXHIBIT J to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is [_____________].
9. The Transferee is a United States Person.
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to ERISA
or a plan that is subject to Section 4975 of the Code, and the Transferee is not
acting on behalf of such a plan.
* * *
J-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this day of , 20 .
Print Name of Transferee
By:
---------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to be
the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
---- -------------- ----
-------------------------------------
NOTARY PUBLIC
My Commission expires the day of
----
, 20 .
------------------------ ----
J-3
EXHIBIT 1
to
EXHIBIT J
Certain Definitions
"Ownership Interest": As to any Residual Certificate, any ownership
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"Permitted Transferee": Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form 4224 or successor
form, and (vi) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause the Trust Fund hereunder to fail to qualify
as a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
"Person": Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
J-1-1
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
EXHIBIT 2
to
EXHIBIT I
Section 5.02(c) of the Agreement
[TO BE INSERTED WHEN POOLING AND SERVICING AGREEMENT FINALIZED]
I-2-1
EXHIBIT K
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
The Xxxxx Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6,
Class [___]
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act and (c)
to the extent we are disposing of a Class A-R Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very truly yours,
-----------------------------------
Print Name of Transferor
By:
--------------------------------
Authorized Officer
K-1
EXHIBIT L
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6,
Class [___]
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company, a
representation that we are an insurance company which is purchasing such
Certificates with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under PTCE 95-60, (e) if an insurance company, we are purchasing the
Certificates with funds contained in an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and our purchase and holding of the Certificates are covered under XXXX
00-00, (x) we are acquiring the Certificates for investment for our own account
and not with a view to any distribution of such Certificates (but without
prejudice to our right at all times to sell or otherwise dispose of the
L-1
Certificates in accordance with clause (h) below), (g) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (h) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Authorized Officer
L-2
EXHIBIT M
FORM OF RULE 144A LETTER
____________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
The Xxxxx Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6,
Class [___]
-----------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue Code
of 1986, as amended, nor are we acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such acquisition,
(e) if an insurance company, we are purchasing the Certificates with funds
contained in an "insurance company general account" (as defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and our purchase
and holding of the Certificates are covered under XXXX 00-00, (x) we have not,
nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
M-1
the Act or that would render the disposition of the Certificates a violation of
Section 5 of the Act or require registration pursuant thereto, nor will act, nor
has authorized or will authorize any person to act, in such manner with respect
to the Certificates, (g) we are a "qualified institutional buyer" as that term
is defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(h) we are aware that the sale to us is being made in reliance on Rule 144A, and
(i) we are acquiring the Certificates for our own account or for resale pursuant
to Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (A) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Authorized Officer
M-2
ANNEX 1 TO EXHIBIT M
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $ 1 in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A and (ii) the
Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
--------
(1) Buyer must own and/or invest on a discretionary basis at lease $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
M-1-1
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer
M-1-2
is a majority-owned, consolidated subsidiary of another enterprise and the Buyer
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
---------------------------
Print Name of Buyer
By:
------------------------
Name:
Title:
Date:
----------------------
M-1-3
ANNEX 2 TO EXHIBIT M
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii)
M-2-1
securities issued or guaranteed by the U.S. or any instrumentality thereof,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-------------------------------------
Print Name of Buyer or Adviser
By:
----------------------------------
Name:
Title:
IF AN ADVISER:
-------------------------------------
Print Name of Buyer
Date:
--------------------------------
M-2-2
EXHIBIT N
REQUEST FOR RELEASE
(for Trustee)
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2001-S6
CSFB Mortgage Pass-Through Certificates, Series 2001-S6
Loan Information
Name of Mortgagor: _____________________________________
Servicer
Loan No.: _____________________________________
Trustee
Name:
Address: _____________________________________
_____________________________________
_____________________________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from Bank
One, National Association, as Custodian for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the "Documents"). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among Credit Suisse First Boston Mortgage Securities
Corp. as depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire
Credit Corporation as servicer ("Wilshire") and The Chase Manhattan Bank as
trustee (the "Trustee").
(_) Mortgage Note dated ___________, _____________, in the original principal
sum of $___________, made by ____________ _________. payable to, or
endorsed to the order of, the Trustee.
(_) Mortgage recorded on _____________ as instrument no. ____________ in the
County Recorder's ____________________, State of _______________ in
book/reel/docket ___________________ of ______________ official records at
page/image ________________.
N-1
(_) Deed of Trust recorded on ______________ as instrument no.
__________________ in the County Recorder's Office of the County of
________________, State of _________________ in book/reel/docket
___________________ of official records at page/image _____________.
(_) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on ______
as instrument no. _____________ in the County Recorder's Office of the
County of ______________, State of __ ______________ in book/reel/docket
____________ of official records at page/image . ---------------
(_) Other documents, including any amendments, assignments or other assumptions
of the Mortgage Note or Mortgage.
(_)
(_)
(_)
(_)
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) Such Servicer shall hold and retain possession of the Documents in
trust for the benefit of the Trustee, solely for the purposes provided
in the Agreement.
(2) Such Servicer shall not cause or knowingly permit the Documents to
become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall
the Servicer, if applicable, assert or seek to assert any claims or
rights of setoff to or against the Documents or any proceeds thereof.
(3) Such Servicer shall return each and every Document previously
requested from the Mortgage File to the Custodian when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided
in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of such Servicer shall
at all times be earmarked for the account of the Custodian, and such
Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in such Servicer's possession,
custody or control.
N-2
[Servicer]
By
---------------------------------
Its
--------------------------------
Date: , 2001
----------------
N-3
EXHIBIT O
[Reserved]
X-0
XXXXXXX X-0
COLLECTION ACCOUNT CERTIFICATION
[________________], 2001
[Servicer's name] hereby certifies that it has established the account
described below as a Collection Account pursuant to Section 3.05 of the Pooling
and Servicing Agreement, dated as of March 1, 2001, among Credit Suisse First
Boston Mortgage Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as
seller ("DLJMC"), Wilshire Credit Corporation as servicer ("Wilshire") and The
Chase Manhattan Bank as trustee (the "Trustee").
Title of Account: [Servicer's Name], in trust for the Holders of Credit Suisse
First Boston Mortgage Securities Corp., CSFB Mortgage
Pass-Through Certificates, Series 2001-S6.
Account Number:
-----------------------
Address of officer or branch of the Company at which Account is maintained:
-----------------------------------------
-----------------------------------------
-----------------------------------------
[Servicer's Name], AS SERVICER
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
X-0-0
XXXXXXX X-0
COLLECTION ACCOUNT LETTER AGREEMENT
[ __________], 2001
To:
---------------------------
---------------------------
---------------------------
(the "Depository")
As Servicer under the Pooling and Servicing Agreement, dated as of March 1,
2001, among Credit Suisse First Boston Mortgage Securities Corp. as depositor,
DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit Corporation as
servicer ("Wilshire") and The Chase Manhattan Bank as trustee (the "Trustee")
(the "Agreement"), we hereby authorize and request you to establish an account,
as a Collection Account pursuant to Section 3.05 of the Agreement, to be
designated as "[Servicer's Name], in trust for the Holders of Credit Suisse
First Boston Mortgage Securities Corp., CSFB Mortgage Pass-Through Certificates,
Series 2001-S6." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
[Servicer's Name], AS SERVICER
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
Date:
--------------------------
P-2-1
The undersigned, as Depository, hereby certifies that the above described
account has been established under Account Number _________ at the office of the
Depository indicated above and agrees to honor withdrawals on such account as
provided above. The full amount deposited at any time in the account will be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund ("BIF") or the Savings Association Insurance
Fund ("SAIF").
------------------------------------
Depository
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Date:
---------------------------
X-0-0
XXXXXXX X-0
ESCROW ACCOUNT CERTIFICATION
[_____________], 2001
[Servicer's Name] hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 3.06 of the Pooling and
Servicing Agreement, dated as of March 1, 2001, among Credit Suisse First Boston
Mortgage Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller
("DLJMC"), Wilshire Credit Corporation as servicer ("Wilshire") and The Chase
Manhattan Bank as trustee (the "Trustee").
Title of Account: "Credit Suisse First Boston Mortgage Securities Corp., CSFB
Mortgage Pass-Through Certificates, Series 2001-S6"
Account Number:
--------------------------
Address of officer or branch of the Company at which Account is maintained:
-----------------------------------------
-----------------------------------------
-----------------------------------------
[SERVICER'S NAME], AS SERVICER
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
P-1-1
EXHIBIT P-2
ESCROW ACCOUNT LETTER AGREEMENT
[_______________], 2001
To:
---------------------------
---------------------------
---------------------------
(the "Depository")
As Servicer under the Pooling and Servicing Agreement, dated as of March 1,
2001, among Credit Suisse First Boston Mortgage Securities Corp. as depositor,
DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit Corporation as
servicer ("Wilshire") and The Chase Manhattan Bank as trustee (the "Trustee")
(the "Agreement"), we hereby authorize and request you to establish an account,
as an Escrow Account pursuant to Section 3.06 of the Agreement, to be designated
as "Credit Suisse First Boston Mortgage Securities Corp., Mortgage Pass-Through
Certificates, Series 2001-S6" All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
[SERVICER'S NAME], AS SERVICER
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
P-2-1
The undersigned, as Depository, hereby certifies that the above described
account has been established under Account Number ________________ at the office
of the Depository indicated above and agrees to honor withdrawals on such
account as provided above. The full amount deposited at any time in the account
will be insured up to applicable limits by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund ("BIF") or the Savings Association
Insurance Fund ("SAIF").
------------------------------------
Depository
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Date:
---------------------------
P-2-2
EXHIBIT Q
MONTHLY REMITTANCE ADVICE
1) Standard CPI Reports:
T62C-Monthly Accounting Report
T62E-Liquidation Report
S50Y-Private Pool Detail Report
S214-Summary of Paid in Full Collections
S215-Summary of Collections
P139-Trial Balance
2) Standard CPI Tape Format:
SPNB Scheduled Balance Tape
SPNB Determination Diskette/P45K
At such times as [_______________] is no longer the Servicer of the [________]
Mortgage Loans under the Agreement, the Monthly Remittance Advice also shall
include: (i) the aggregate Excess Servicing Fee to be remitted to
[___________________] on the Distribution Date, (ii) the aggregate Prepayment
Penalties collected by the Servicer of such loans during the preceding calendar
month, and (iii) a list of the Mortgage Loans for which Prepayment Penalties are
being remitted (including with respect to each related Mortgage Loan, the loan
number, borrower name and dollar amount of Prepayment Penalties collected for
such Mortgage Loan).
Q-1
EXHIBIT R
CUSTODIAL AGREEMENT
R-1
EXHIBIT S-1
FORM OF GROUP I CERTIFICATE INSURANCE POLICY
(Available Upon Request)
S-1
EXHIBIT S-2
FORM OF GROUP I CERTIFICATE INSURANCE POLICY
(Available Upon Request)
S-2
EXHIBIT T
MORTGAGE POOL INSURANCE POLICY
(Available Upon Request)
T-1
EXHIBIT U
SPECIAL HAZARD INSURANCE POLICY
(Available Upon Request)
U-1
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(Available Upon Request)
I-1
SCHEDULE II
SELLER'S REPRESENTATIONS AND WARRANTIES
(i) the Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
(ii) the Seller has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Seller of this Agreement have been
duly authorized by all necessary corporate action on the part of the Seller; and
neither the execution and delivery of this Agreement, nor the consummation of
the transactions herein contemplated hereby, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Seller or its properties or the
certificate of incorporation or by-laws of the Seller, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made and, in connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
(v) this Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Trustee, the Servicer
and the Depositor, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally); and
(vi) to the knowledge of the Seller, there are no actions, litigation,
suits or proceedings pending or threatened against the Seller before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Seller if determined adversely
to the Seller would reasonably be expected to materially and adversely affect
the Seller's ability to perform its obligations under this Agreement; and the
Seller is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely affect
the transactions contemplated by this Agreement
II-1
SCHEDULE III
SERVICER'S REPRESENTATIONS AND WARRANTIES
(i) the Servicer is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
(ii) the Servicer has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and deliver by the Servicer of this Agreement have been
duly authorized by all necessary corporate action on the part of the Servicer;
and neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated hereby, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Servicer or its properties or the
certificate of incorporation or bylaws of the Servicer, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Servicer's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) this Agreement has been duly executed and delivered by the Servicer
and, assuming due authorization, execution and delivery by the Trustee, the
Seller and the Depositor, constitutes a valid and binding obligation of the
Servicer enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally); and
(v) to the knowledge of the Servicer, there are no actions, litigation,
suits or proceedings pending or threatened against the Servicer before or by any
court, administrative agency, arbitrator or governmental body (a) with respect
to any of the transactions contemplated by this Agreement or (b) with respect to
any other matter which in the judgment of the Servicer if determined adversely
to the Servicer would reasonably be expected to materially and adversely affect
the Servicer's ability to perform its obligations under this Agreement, other
than as Servicer has previously advised Seller; and the Servicer is not in
default with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement.
III-1
SCHEDULE IV
REPRESENTATIONS AND WARRANTIES FOR THE MORTGAGE LOANS
(Available Upon Request)
IV-1
