EXHIBIT 99.1
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
CHASE MANHATTAN MORTGAGE CORPORATION,
Master Servicer
GREENPOINT MORTGAGE FUNDING, INC.,
Seller and Servicer,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Servicer,
OLYMPUS SERVICING, L.P.,
Servicer and Special Servicer,
BANK ONE, NATIONAL ASSOCIATION,
Trustee
and
JPMORGAN CHASE BANK,
Trust Administrator
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2002
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2002-AR2
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund..............................................................44
SECTION 2.02 Acceptance by the Trustee.............................................................47
SECTION 2.03 Representations and Warranties of the Sellers, Master Servicer and Servicers..........49
SECTION 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............52
SECTION 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.......................52
SECTION 2.06 Issuance of Certificates..............................................................52
SECTION 2.07 REMIC Provisions......................................................................52
SECTION 2.08 Covenants of the Master Servicer and each Servicer....................................58
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Master Servicer and Servicers to Service Mortgage Loans...............................58
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers..........................60
SECTION 3.03 Notification of Adjustments...........................................................62
SECTION 3.04 Trust Administrator to Act as Master Servicer or Servicer.............................62
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts; Certificate Account................63
SECTION 3.06 Establishment of and Deposits to Escrow Accounts; Permitted Withdrawals from
Escrow Accounts; Payments of Taxes, Insurance and Other Charges.......................66
SECTION 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections...........................................................................68
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and Certificate Account............68
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment Insurance and Mortgage
Guaranty Insurance Policy; Claims; Restoration of Mortgaged Property..................70
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements.............................74
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.................................................................................75
SECTION 3.12 Trustee and Trust Administrator to Cooperate; Release of Mortgage Files...............79
SECTION 3.13 Documents, Records and Funds in Possession of the Master Servicer or a
Servicer to be Held for the Trustee...................................................80
SECTION 3.14 Master Servicing Fee and Servicing Fee................................................81
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SECTION 3.15 Access to Certain Documentation.......................................................81
SECTION 3.16 Annual Statement as to Compliance.....................................................82
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement; Financial
Statements............................................................................82
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions Insurance.......................83
SECTION 3.19 Special Serviced Mortgage Loans.......................................................83
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution............................................................84
SECTION 4.02 Allocation of Losses..................................................................90
SECTION 4.03 Reserved..............................................................................91
SECTION 4.04 Monthly Statements to Certificateholders..............................................91
SECTION 4.05 Servicer to Cooperate.................................................................93
SECTION 4.06 Reserved..............................................................................93
SECTION 4.07 Basis Risk Reserve Fund...............................................................93
ARTICLE V
ADVANCES BY THE MASTER SERVICER AND SERVICERS
SECTION 5.01 Advances by the Master Servicer and Servicers.........................................95
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates......................................................................96
SECTION 6.02 Registration of Transfer and Exchange of Certificates.................................96
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates....................................102
SECTION 6.04 Persons Deemed Owners................................................................102
SECTION 6.05 Access to List of Certificateholders' Names and Addresses............................102
SECTION 6.06 Maintenance of Office or Agency......................................................103
SECTION 6.07 Book-Entry Certificates..............................................................103
SECTION 6.08 Notices to Clearing Agency...........................................................104
SECTION 6.09 Definitive Certificates..............................................................104
ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE MASTER SERVICER, THE SERVICERS AND THE SPECIAL SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor, the Master Servicer, the Servicers
and the Special Servicer.............................................................105
SECTION 7.02 Merger or Consolidation of the Sellers, the Depositor, the Master Servicer,
the Servicers or the Special Servicer................................................105
SECTION 7.03 Limitation on Liability of the Sellers, the Depositor, the Master Servicer,
the Servicers, the Special Servicer and Others.......................................106
SECTION 7.04 Master Servicer and Servicer Not to Resign; Transfer of Servicing....................107
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SECTION 7.05 Master Servicer, Seller and Servicers May Own Certificates...........................107
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default....................................................................108
SECTION 8.02 Master Servicer or Trust Administrator to Act; Appointment of Successor..............109
SECTION 8.03 Notification to Certificateholders...................................................111
SECTION 8.04 Waiver of Events of Default..........................................................111
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee....................................................................112
SECTION 9.02 Certain Matters Affecting the Trustee................................................113
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans................................115
SECTION 9.04 Trustee May Own Certificates.........................................................115
SECTION 9.05 Trustee's Fees and Expenses..........................................................115
SECTION 9.06 Eligibility Requirements for Trustee.................................................116
SECTION 9.07 Resignation and Removal of Trustee...................................................117
SECTION 9.08 Successor Trustee....................................................................117
SECTION 9.09 Merger or Consolidation of Trustee...................................................118
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee........................................118
SECTION 9.11 Office of the Trustee................................................................119
ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator........................................................120
SECTION 10.02 Certain Matters Affecting the Trust Administrator....................................122
SECTION 10.03 Trust Administrator Not Liable for Certificates or Mortgage Loans....................123
SECTION 10.04 Trust Administrator May Own Certificates.............................................124
SECTION 10.05 Trust Administrator's Fees and Expenses..............................................124
SECTION 10.06 Eligibility Requirements for Trust Administrator.....................................125
SECTION 10.07 Resignation and Removal of Trust Administrator.......................................125
SECTION 10.08 Successor Trust Administrator........................................................126
SECTION 10.09 Merger or Consolidation of Trust Administrator.......................................126
SECTION 10.10 Appointment of Co-Trust Administrator or Separate Trust Administrator................127
SECTION 10.11 Office of the Trust Administrator....................................................128
SECTION 10.12 Tax Return...........................................................................128
SECTION 10.13 Filings..............................................................................128
SECTION 10.14 Determination of Certificate Index...................................................129
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ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Repurchase of all Mortgage Loans.....................130
SECTION 11.02 Procedure Upon Optional Termination..................................................131
SECTION 11.03 Additional Termination Requirements..................................................132
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment............................................................................133
SECTION 12.02 Recordation of Agreement; Counterparts...............................................134
SECTION 12.03 Governing Law........................................................................134
SECTION 12.04 Intention of Parties.................................................................135
SECTION 12.05 Notices..............................................................................136
SECTION 12.06 Severability of Provisions...........................................................137
SECTION 12.07 Limitation on Rights of Certificateholders...........................................137
SECTION 12.08 Certificates Nonassessable and Fully Paid............................................138
SECTION 12.09 Protection of Assets.................................................................138
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EXHIBITS
Exhibit A: Form of Class A Certificate.................................................................A-1
Exhibit B: Form of Class M Certificate.................................................................B-1
Exhibit C: Form of Class I-B Certificate...............................................................C-1
Exhibit D: Form of Class II-B Certificate..............................................................D-1
Exhibit E: Form of Class AR Certificate................................................................E-1
Exhibit F: [Reserved]..................................................................................F-1
Exhibit G: Form of Class II-X Certificate..............................................................G-1
Exhibit H: Servicer Information........................................................................H-1
Exhibit I: [Reserved]..................................................................................I-1
Exhibit J: Form of Initial Certification of Trustee....................................................J-1
Exhibit K: Form of Final Certification of Trustee......................................................K-1
Exhibit L: Form of Request for Release.................................................................L-1
Exhibit M: Form of Transferor Certificate..............................................................M-1
Exhibit N-1: Form of Investment Letter.................................................................N-1-1
Exhibit N-2: Form of Rule 144A Letter..................................................................N-2-1
Exhibit O: Form of Investor Transfer Affidavit and Agreement...........................................O-1
Exhibit P: Form of Transfer Certificate................................................................P-1
Exhibit Q-1: Form of Escrow............................................................................Q-1-1
Exhibit Q-2: Form of Escrow............................................................................Q-2-1
Exhibit R-1: Form of Collection Account................................................................R-1-1
Exhibit R-2: Form of Collection Account................................................................R-2-1
SCHEDULES
Schedule I: Mortgage Loan Schedule......................................................................I-1
Schedule IIA: Representations and Warranties of DLJMC...................................................IIA-1
Schedule IIB: Representations and Warranties of CMMC....................................................IIB-1
Schedule IIC: Representations and Warranties of GreenPoint..............................................IIC-1
Schedule IID: Representations and Warranties of Olympus.................................................IID-1
Schedule IIE: Representations and Warranties of WMMSC...................................................IIE-1
Schedule IIIA: Representations and Warranties of DLJMC as to the Mortgage Loans.........................IIIA-1
Schedule IIIB: Representations and Warranties of GreenPoint as to the GreenPoint Mortgage Loans.........IIIB-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of January 1,
2002, is hereby executed by and among CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ
Mortgage Capital, Inc. ("DLJMC"), a Delaware Corporation, in its capacity as a
seller (a "Seller"), GREENPOINT MORTGAGE FUNDING, INC. ("GreenPoint"), a New
York corporation, in its capacity as a seller (in such capacity, a "Seller"),
and in its capacity as a servicer (in such capacity, a "Servicer"), CHASE
MANHATTAN MORTGAGE CORPORATION ("CMMC"), a New Jersey corporation, in its
capacity as master servicer (the "Master Servicer"), WASHINGTON MUTUAL
MORTGAGE SECURITIES CORP. ("WMMSC"), a Delaware corporation, in its capacity
as a servicer (a "Servicer"), OLYMPUS SERVICING, L.P. ("Olympus"), a Delaware
limited partnership, in its capacity as a servicer (a "Servicer") and in its
capacity as a special servicer (the "Special Servicer"), Bank One, National
Association, a national banking association, as trustee (the "Trustee") and
JPMORGAN CHASE BANK, a New York banking corporation, as trust administrator
(the "Trust Administrator"). Capitalized terms used in this Agreement and not
otherwise defined will have the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby
conveyed to the Trustee in return for the Certificates. The Trust Fund for
federal income tax purposes will consist of three REMICs ("REMIC 1", "REMIC 2"
and the " Master REMIC"). REMIC 1 will consist of all of the assets
constituting the Trust Fund corresponding to Loan Group I and will be
evidenced by the LTA-I-A Interest and LTA-I-AS Interest (the "REMIC 1
Interests") which will be uncertificated and will represent the "regular
interests" in REMIC 1 and the R-1 Interest as the single "residual interest"
in REMIC 1.
REMIC 2 will consist of the Loan Group II Mortgage Loans and
will be evidenced by the LTB-II-A-1 Interest, LTB II-A-2 Interest, LTB-II-M-1
Interest, LTB-II-M-2 Interest, LTB-II-B Interest and LTB-Accrual Interest (the
"Group II REMIC 2 Regular Interests") and the R-2 Interest as the single
"residual interest" in REMIC 2.
The Master REMIC will consist of the REMIC 1 and REMIC 3
Regular Interests and will be evidenced by the Class I-A Certificates, Class
II-A-1 Certificates, Class II-A-2 Certificates, Class II-M-1 Certificates,
Class II-M-2 Certificates, Class II-B Certificates, Class I-B-1 Certificates,
Class I-B-2 Certificates, Class I-B-3 Certificates, Class I-B-4 Certificates,
Class I-B-5 Certificates, Class I-B-6 Certificates, and Class II-X
Certificates (which will represent the "regular interests" in the Master
REMIC) and the R-3 Interest as the single "residual interest" in the Master
REMIC. The Class AR Certificates will represent beneficial ownership of the
Class R-1 Residual Interest, Class R-2 Residual Interest and Class R-3
Residual Interest. The "latest possible maturity date" for federal income tax
purposes of all interests created hereby will be the Latest Possible Maturity
Date.
REMIC 1:
1
The REMIC 1 Regular Interests, each of which is hereby
designated a REMIC regular interest for federal income tax purposes, shall
have the following initial principal balances, and pass-through rates of
Certificates in the manner set forth in the following table:
------------------------------ -------------------------------- --------------------- --------------------
REMIC 1 Initial Pass Through Related Loan
Interests Balance Rate Group
--------- ------- ------------- -------------
------------------------------ -------------------------------- --------------------- --------------------
LTA-I-A Loan Group I Mortgage Weighted average I
Loan Principal Balance Net Mortgage Rates
of the Group I
Mortgage Loans less
.05%
------------------------------ -------------------------------- --------------------- --------------------
LTA-I-AS Notional balance equal to the .05% I
Group I Mortgage Loan
Principal Balance
------------------------------ -------------------------------- --------------------- --------------------
X-0 X/x X/x X/x
------------------------------ -------------------------------- --------------------- --------------------
---------------
On each Distribution Date, each REMIC 1 Interest will have a
principal balance (or notional principal balance, as applicable) equal to that
of its related Loan Group principal balance, and receive all payments of
principal, and realized Losses from the related Loan Group.
REMIC 2:
The REMIC 2 Regular Interests, each of which is hereby designated a
REMIC regular interest for federal income tax purposes, shall have the
following initial principal balances, pass-through rates and Corresponding
Classes of Certificates in the manner set forth in the following table:
------------------------------ --------------------------------- ---------------------- ----------------------
Corresponding
REMIC Initial Pass Through Master REMIC
Interests Principal Balance Rate Certificate
--------- ----------------- ------------- --------------
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-II-A-1(1) 1/2 Corresponding Master (2) Class II-A-1
REMIC Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-II-A-2(1) 1/2 Corresponding Master (2) Class II-A-2
REMIC Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-II-M-1(1) 1/2 Corresponding Master (2) Class II-M-1
REMIC Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-II-M-2(1) 1/2 Corresponding Master (2) Class II-M-2
REMIC Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
2
------------------------------ --------------------------------- ---------------------- ----------------------
Corresponding
REMIC Initial Pass Through Master REMIC
Interests Principal Balance Rate Certificate
--------- ----------------- ------------- -----------------
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-II-B(1) 1/2 Corresponding (2) Class II-B
Master REMIC Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-Accrual Interest 1/2 Mortgage Pool balance (2) N/a
plus 1/2
Overcollateralization Amount
on Closing Date
------------------------------ --------------------------------- ---------------------- ----------------------
X-0 X/x X/x X/x
------------------------------ --------------------------------- ---------------------- ----------------------
(1) These regular interests are designated as the "REMIC 2 Accretion Directed
Classes"
(2) A rate equal to the Net Funds Cap.
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 2 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the principal balance of its
Corresponding Class) and will be accrued and added to the principal balance of
the LTB-Accrual Interest. All payments of principal generated by the Mortgage
Loans shall be allocated 50% to the LTB-Accrual Interest, and 50% to the REMIC
2 Accretion Directed Classes (in an amount equal to 50% of the principal
amounts allocated to their respective Corresponding Classes), until paid in
full. In the event that: (i) 50% of the increase in the Overcollateralization
Amount exceeds (ii) interest accruals on the REMIC 2 Interest for such
Distribution Date, the excess for such Distribution Date (accumulated with all
such excesses for all prior Distribution Dates) will be added to any increase
in the Overcollateralization Amount for purposes of determining the amount of
interest accrual on the REMIC 2 Interest payable as principal on the REMIC 2
Accretion Directed Classes on the next Distribution Date pursuant to the first
sentence of this paragraph. Notwithstanding the above, principal payments
allocated to the Class II-X Certificates that result in the reduction in the
Overcollateralization Amount shall be allocated to the LTB-Accrual Interest
(until paid in full). Realized losses shall be applied so that after all
distributions have been made on each Distribution Date the principal balances
of each of the REMIC 2 Accretion Directed Classes is equal to 50% of the
principal balance of their Corresponding Class, and the REMIC 2 Accrual Class
is equal to 50% of the aggregate principal balance of the Mortgage Pool plus
50% of the Overcollateralization Amount.
Master REMIC:
The following table sets forth characteristics of the Certificates
and the Class I-AS regular interest, each of which, except for the Class R-3
Interests, is hereby designated as a "regular interest" in the Master REMIC,
together with the minimum denominations and integral
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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):
------------------------- ------------------------- -------------------- --------------------- --------------------
Integral
Class Multiples
Principal Pass-Through Minimum in Excess
Balance Rate (per annum) Denomination of Minimum
------------------------- ------------------------- -------------------- --------------------- --------------------
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-A $132,515,000.00 Variable(1) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-A-1 $161,534,000.00 Variable(2) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-A-2 $5,077,000.00 Variable(3) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class AR (4) $100.00 Variable(5) (6) (6)
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-M-1 $12,000,000.00 Variable(7) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-M-2 $4,154,000.00 Variable(8) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-B $1,846,133.00 Variable(9) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-1 $3,155,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-2 $1,683,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-3 $1,122,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-4 $771,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-5 $491,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-B-6 $491,413.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-X (11) Variable(12) (6) (6)
------------------------- ------------------------- -------------------- --------------------- --------------------
---------------
(1) The initial Pass-Through Rate for the Class I-A Certificates is
6.5215% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class I-A Certificates shall be a per annum
rate equal to the weighted average Net Mortgage Rates of the Mortgage
Loans in Loan Group I as of the second preceding Due Date after
giving effect to scheduled payments for that Due Date, whether or not
received, less 0.05%.
(2) The initial Pass-Through Rate for the Class II-A-1 Certificates is
2.2300% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class II-A-1 Certificates shall be a per
annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(3) The initial Pass-Through Rate for the Class II-A-2 Certificates is
2.3800% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class II-A-2 Certificates shall be a per
annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(4) The Class AR will represent 3 REMIC residual interests - the Class
R-1 Residual Interests (which is the residual interest of REMIC 1),
the Class R-2 Residual Interests (which is the residual interest of
REMIC 2) and the Class R-3 Residual Interests (which is the residual
interest of the Master REMIC).
(5) The initial Pass-Through Rate for the Class AR Certificates is
6.5215% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class AR Certificates shall be a per annum
rate equal to the weighted average Net Mortgage Rates of the Mortgage
Loans
4
in Loan Group I as of the second preceding Due Date after
giving effect to scheduled payments for that Due Date, whether or not
received, less 0.05%.
(6) The Class AR and Class II-X Certificates are issued in minimum
Percentage Interests of 20%.
(7) The initial Pass-Through Rate for the Class II-M-1 Certificates is
2.9800% per annum. After the first Distribution Date, the Pass-
Through Rate for the Class II-M-1 Certificates shall be a per annum
rate equal to the lesser of (a) Certificate Index and the applicable
Certificate Margin for such Distribution Date and (b) the applicable
Net Funds Cap.
(8) The initial Pass-Through Rate for the Class II-M-2 Certificates is
3.7300% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class II-M-2 Certificates shall be a per
annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(9) The initial Pass-Through Rate for the Class II-B Certificates is
4.6300% per annum. After the first Distribution Date, the
Pass-Through Rate for the Class II-B Certificates shall be a per
annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(10) The initial Pass-Through Rate for each of the Class I-B-1, Class
I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6
Certificates is 6.5215% per annum. After the first Distribution Date,
the Pass-Through Rate for each of the Class I-B-1, Class I-B-2, Class
I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6 Certificates shall be
a per annum rate equal to the weighted average Net Mortgage Rates of
the Mortgage Loans in Loan Group I as of the second preceding Due
Date after giving effect to scheduled payments for that Due Date,
whether or not received, less 0.05%.
(11) The Class II-X Certificates will not have a Class Principal Balance
but will accrue interest on the related Class Notional Amount which
is equal to the Stated Principal Balances of the Group II Mortgage
Loans. The Class II-X will also be entitled to 100% of the payments
received from the Class I-AS Regular Interest (which is entitled to
100% of the interest received from the Class LTA-I-A Regular
Interest). The rights to the Class II-X Regular Interest and Class
I-AS Regular Interest will be inseparable.
(12) The Pass-Through Rate of the Class II-X Certificates will be the
excess of (i) the Net Funds Cap over (ii) the product of (A) two and
(B) the weighted average Pass-Through Rate of the Group II REMIC 2
Regular Interest with the REMIC 2 Accretion Directed Classes capped
at a rate equal the pass through rate on Corresponding Master Class
Certificate, and the Class LTB-Accrual Interest equal to zero. Until
the required amount of overcollateralization exists, amounts accruing
with respect to the Class II-X Certificates will be distributed as a
principal payments to the Class II-A-1, Class II-A-2 , II-M-1, Class
II-M-2 and Class II-B Certificates and will be paid to the Class II-X
Certificates (without interest) when principal payments received from
the Group II Mortgage Loans are allowed to reduce
overcollateralization.
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.
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Class A Certificates:............................ The Class I-A, Class II-A-1, Class II-A-2 and Class AR
Certificates.
Class B Certificates............................. The Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4,
Class I-B-5, Class I-B-6 and Class II-B Certificates.
Class M Certificates............................. The Class II-M-1 and Class II-M-2 Certificates.
ERISA-Restricted Certificates................... Residual Certificates; Private Certificates; and any
Certificates that do not satisfy the applicable ratings
requirement under the Underwriter's Exemption.
Group I Senior Certificates: .................. The Class I-A and Class AR Certificates.
Group I Subordinate Certificates................. The Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4,
Class I-B-5 and Class I-B-6 Certificates.
Group I Certificates............................. The Group I Senior and Group I Subordinate Certificates.
Group II Senior Certificates: ................... The Class II-A-1 and Class II-A-2 Certificates.
Group II Subordinate Certificates................ The Class II-M-1, Class II-M-2, Class II-B and Class
II-X Certificates.
Group II Certificates............................ The Group II Senior and Group II Subordinate
Certificates.
LIBOR Certificates:.............................. The Class II-A-1, Class II-A-2, Class II-M-1, Class
II-M-2 and Class II-B Certificates.
Offered Certificates............................. All Classes of Certificates other than the Private
Certificates.
Private Certificates............................. The Class I-B-4, Class I-B-5, Class I-B-6 and Class II-X
Certificates.
Physical Certificates............................ The Class AR and the Private Certificates.
Rating Agencies.................................. Xxxxx'x and S&P.
Regular Certificates............................. All Classes of Certificates other than the Class AR
Certificates.
Residual Certificates............................ The Class AR Certificates.
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Senior Certificates.............................. The Class A and Class AR Certificates.
Subordinate Certificates......................... The Class M, Class B and Class II-X Certificates.
All covenants and agreements made by the Depositor herein
are for the benefit and security of the Certificateholders. The Depositor is
entering into this Agreement, and the Trustee is accepting the trusts created
hereby and thereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. The principal balance of the
Mortgage Loans as of the Cut-off Date is $324,839,646.96.
7
The parties hereto intend to effect an absolute sale and
assignment of the Mortgage Loans to the Trustee for the benefit of
Certificateholders under this Agreement. However, the Depositor and the
Sellers will hereunder absolutely assign and, as a precautionary matter grant
a security interest, in and to its rights, if any, in the related Mortgage
Loans to the Trustee on behalf of Certificateholders to ensure that the
interest of the Certificateholders hereunder in the Mortgage Loans is fully
protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained,
the Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trustee and the Trust Administrator agree as follows:
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ARTICLE I
DEFINITIONS
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.
Accrual Period: For any interest bearing Class of
Certificates other than the LIBOR Certificates and any Distribution Date, the
calendar month immediately preceding the related Distribution Date, and with
respect to the LIBOR Certificates, the period beginning on the immediately
preceding Distribution Date (or the Closing Date, in the case of the first
Accrual Period) and ending on the day immediately preceding the related
Distribution Date.
Advance: The payment required to be made by a Servicer or
the Master Servicer, as applicable, with respect to any Distribution Date
pursuant to Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Adjustment Date: With respect to each Mortgage Loan, each
adjustment date on which the Mortgage Rate thereon changes pursuant to the
related Mortgage Note. The first Adjustment Date following the Cut-off Date as
to each such Mortgage Loan is set forth in the Mortgage Loan Schedule.
Aggregate Loan Group Balance: As to Loan Group II and as of
any date of determination will be equal to the aggregate of the Stated
Principal Balances of the Group II Mortgage Loans as of the last day of the
related Collection Period.
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 and Master Servicing Fees, including but not
limited to, late charges, Prepayment Penalties, prepayment fees, 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.
Applied Loss Amount: As to any Distribution Date, with
respect to the Group II Certificates, the excess, if any, of (i) the aggregate
Class Principal Balances of the Group II Certificates (other than the Class
II-X Certificates), after giving effect to all Realized Losses with respect to
the Mortgage Loans in Loan Group II during the Collection Period for such
Distribution Date and payments of principal on such Distribution Date over
(ii) the Aggregate Loan Group Balance for such Distribution Date.
9
Appraised Value: The appraised value of the Mortgaged
Property based upon the appraisal made for the originator at the time of the
origination of the related Mortgage Loan or the sales price of the Mortgaged
Property at the time of such origination, whichever is less, or with respect
to any Mortgage Loan that represents a refinancing, the appraised value of the
Mortgaged Property based upon the appraisal made at the time of such
refinancing.
Assignment and Assumption Agreement: That certain assignment
and assumption agreement dated as of January 1, 2002, by and between DLJ
Mortgage Capital, Inc., as assignor and the Depositor, as assignee, relating
to the Mortgage Loans.
Available Distribution Amount: With respect to any
Distribution Date and Group I, the sum of: (i) all amounts in respect of
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 on the Group I Mortgage Loans, together with any
Advances in respect thereof; (ii) all Insurance Proceeds (to the extent not
applied to the restoration of the Mortgaged Property or released to the
Mortgagor in accordance with the applicable Servicer's Accepted Servicing
Standards) and all Liquidation Proceeds received during the calendar month
preceding the month of that Distribution Date on the Group I Mortgage Loans,
in each case net of unreimbursed Liquidation Expenses incurred with respect to
such Mortgage Loans; (iii) all Principal Prepayments received during the
related Prepayment Period on the Group I Mortgage Loans, excluding Prepayment
Penalties and premiums; (iv) amounts received with respect to such
Distribution Date as the Substitution Adjustment Amount or Purchase Price in
respect of a Group I Mortgage Loan in the Loan Group I repurchased by a Seller
or a Servicer as of such Distribution Date, in the case of clauses (i) through
(iv) above reduced by amounts in reimbursement for Monthly Advances previously
made and other amounts as to which a Servicer or the Master Servicer is
entitled to be reimbursed pursuant to Section 3.08 in respect of the Group I
Mortgage Loans or otherwise, and (v) any amounts payable as Compensating
Interest Payments by a Servicer or the Master Servicer with respect to the
Group I Mortgage Loans on such Distribution Date.
Bankruptcy Code: The United States Bankruptcy Code, as
amended from time to time (11 U.S.C. Sections 101 et seq.).
Bankruptcy Coverage Termination Date: The point in time at
which the Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: A Deficient Valuation or Debt Service
Reduction.
Bankruptcy Loss Coverage Amount: As of any Determination
Date, the Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy
Loss Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy
Losses allocated to the Group I Certificates since the Cut-off Date and (ii)
any permissible reductions in the Bankruptcy Loss Coverage Amount as evidenced
by a letter of each Rating Agency to the Trust Administrator to the effect
that any such reduction will not result in a downgrading, or otherwise
adversely affect, of the then current ratings assigned to such Classes of
Certificates rated by it.
10
Basis Risk Reserve Fund: The separate Eligible Account
created and initially maintained by the Trust Administrator pursuant to
Section 4.07 in the name of the Trust Administrator, as agent for the Trustee,
for the benefit of the Certificateholders and designated "Bank One, National
Association in trust for registered holders of Credit Suisse First Boston
Mortgage Securities Corp. Mortgage Pass-Through Certificates, Series
2002-AR2." Funds in the Basis Risk Reserve Fund shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Basis Risk Shortfall: For any Class of LIBOR Certificates
and any Distribution Date, the sum of (i) the excess, if any, of the related
Current Interest calculated on the basis of the lesser of (x) the Certificate
Index plus the applicable Certificate Margin and (y) the Maximum Interest Rate
over the related Current Interest for the applicable Distribution Date; (ii)
any Basis Risk Shortfall remaining unpaid from prior Distribution Dates; and
(iii) 30 days interest on the amount in clause (ii) calculated at a per annum
rate equal to the lesser of (x) the Certificate Index plus the applicable
Certificate Margin and (y) the Maximum Interest Rate.
Beneficial Holder: A Person holding a beneficial interest in
any Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Book-Entry Form: Any Certificate held through the facilities
of the Depository.
Business Day: Any day other than (i) a Saturday or a Sunday,
or (ii) a day on which banking institutions in New York or the state in which
the office of the Master Servicer or any Servicer or the Corporate Trust
Office of the Trustee or Trust Administrator are located are authorized or
obligated by law or executive order to be closed.
Carryforward Interest: For any Class of LIBOR Certificates
and Distribution Date, the sum of (1) the amount, if any, by which (x) the sum
of (A) Current Interest for such Class for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest for such Class from
previous Distribution Dates exceeds (y) the amount paid in respect of interest
on such Class on such immediately preceding Distribution Date, and (2)
interest on such amount for the related Accrual Period at the applicable
Pass-Through Rate.
Cash Remittance Date: With respect to any Distribution Date
and (A) the Master Servicer, Olympus or GreenPoint, the 7th calendar day
preceding such Distribution Date, or if such 7th calendar day is not a
Business Day, the Business Day immediately preceding such 7th calendar day or
(B) WMMSC, by 12:00 noon New York City time on the Business Day immediately
preceding such Distribution Date.
Certificate: Any Certificates executed and authenticated by
the Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits A
through G hereto.
11
Certificate Account: The separate Eligible Account created
and maintained with the Trust Administrator, 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 Trust Administrator, as agent
for 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 Trust
Administrator in Eligible Investments and reinvestment earnings thereon (net
of investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts permitted to be
withdrawn pursuant to Section 3.08(b)) 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 to the Denomination thereof
minus all distributions of principal and allocations of Realized Losses,
including Excess Losses or Applied Loss Amounts, as applicable, previously
made or allocated with respect thereto and, in the case of any Class of Group
I Subordinate Certificates, reduced by the amount allocated to such Class
pursuant to Section 4.02A.(b).
Certificate Group: Either of Certificate Group I or
Certificate Group II, as applicable.
Certificate Group I: Any of the Certificates with a Class
designation beginning with "I" and relating to Loan Group I.
Certificate Group II: Any of the Certificates with a Class
designation beginning with "II" and relating to Loan Group II.
Certificate Index: With respect to each Distribution Date
and the LIBOR Certificates, the rate for one month United States dollar
deposits quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the
related Interest Determination Date relating to each Class of LIBOR
Certificates. 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 Trust Administrator after consultation with DLJMC),
the rate will be the Reference Bank Rate. If no such quotations can be
obtained and no Reference Bank Rate is available, the Certificate Index will
be the Certificate Index applicable to the preceding Distribution Date. On the
Interest Determination Date immediately preceding each Distribution Date, the
Trust Administrator shall determine the Certificate Index for the Accrual
Period commencing on such Distribution Date and inform the Master Servicer and
each Servicer of such rate.
Certificate Margin: As to each Class of LIBOR Certificates,
the applicable amount set forth below:
12
Class Certificate Margin
(1) (2)
II-A-1 0.40% 0.80%
II-A-2 0.55% 1.10%
II-M-1 1.15% 1.65%
II-M-2 1.90% 2.40%
II-B 2.80% 3.30%
-----------
(1) On and prior to the first possible Optional Termination Date.
(2) After the first possible Optional Termination Date.
Certificate Register: The register maintained pursuant to
Section 6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register.
Class: All Certificates bearing the same class designation
as set forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary
Statement.
Class B Certificates: As specified in the Preliminary
Statement.
Class Interest Shortfall: As to any Distribution Date and
Class of Group I Certificates, 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-B Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the sum of (i) the aggregate Class Principal Balances of the
Class II-A-1, Class II-A-2, Class II-M-1 and Class II-M-2 Certificates, in
each case, after giving effect to payments on such Distribution Date and (ii)
the Class Principal Balance of the Class II-B Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product of (i)
99.00% and (ii) the Aggregate Loan Group Balance for such Distribution Date
and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance for
such Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance
as of the Cut-off Date.
Class II-M-1 Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the sum of (i) the aggregate Class Principal Balances of the
Class II-A-1 and Class II-A-2 Certificates, in each case, after giving effect
to payments on such Distribution Date and (ii) the Class Principal Balance of
the Class II-M-1 Certificates immediately prior to such Distribution Date
exceeds (y) the lesser of (A) the product of (i) 92.50% and (ii) the Aggregate
Loan Group Balance for Loan Group II for such
13
Distribution Date and (B) the amount, if any, by which (i) the Aggregate Loan
Group Balance for Loan Group II for such Distribution Date exceeds (ii) 0.50%
of the Aggregate Loan Group Balance for Loan Group II as of the Cut-off Date.
Class II-M-2 Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the sum of (i) the aggregate Class Principal Balances of the
Class II-A-1, Class II-A-2 and Class II-M-1 Certificates, in each case, after
giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class II-M-2 Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 97.00% and
(ii) the Aggregate Loan Group Balance for Loan Group II for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group II for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance for Loan Group II as of the Cut-off Date.
Class II-X Distributable Amount: With respect to any
Distribution Date and the Class II-X Certificates, the excess of (i) the sum
of (x) the amount of interest accrued during the related Accrual Period at the
related Pass-Through Rate on the Class II-X Notional Amount for such
Distribution Date and (y) the Overcollateralization Release Amount, if any,
for such Distribution Date over (ii) any amounts distributed on that
Distribution Date pursuant to Section 4.01(II)(d)(i)-(x).
Class II-X Notional Amount: With respect to any Distribution
Date and the Class II-X Certificates, an amount equal to the aggregate Stated
Principal Balances of the Mortgage Loans in Loan Group II as of the first day
of the related Collection Period.
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.
Class Unpaid Interest Amounts: As to any Distribution Date
and Class of interest-bearing Group I 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
pursuant to clause (ii) of the definition of Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, which initially shall be DTC.
Closing Date: January 31, 2002.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained
by the Master Servicer or a Servicer in accordance with Section 3.05.
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Collection 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.
Compensating Interest Payment: For any Distribution Date and
the WMMSC Serviced Mortgage Loans, the lesser of (i) the sum of (a) one
twelfth (1/12) of 0.04% of the aggregate Stated Principal Balance of the WMMSC
Serviced Mortgage Loans, as of the Due Date in the month of such Distribution
Date, (b) Payoff Earnings in respect of the WMMSC Serviced Mortgage Loans for
such Distribution Date and (c) aggregate Payoff Interest in respect of the
WMMSC Serviced Mortgage Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall allocable to Payoffs for the WMMSC
Serviced Mortgage Loans. For any Distribution Date and the GreenPoint Serviced
Mortgage Loans, the lesser of (i) 50% of the aggregate Servicing Fee payable
to GreenPoint in respect of the GreenPoint Serviced Mortgage Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall with
respect to the GreenPoint Serviced Mortgage Loans. For any Distribution Date
and the Olympus Serviced Mortgage Loans, the lesser of (i) 50% of the
aggregate Servicing Fee payable to Olympus in respect of the Olympus Serviced
Mortgage Loans for such Distribution Date and (ii) the aggregate Prepayment
Interest Shortfall with respect to the Olympus Serviced Mortgage Loans. For
any Distribution Date and the Master Serviced Mortgage Loans, the lesser of
(i) one twelfth (1/12) of 0.25% of the aggregate Stated Principal Balance of
the Master Serviced Mortgage Loans, as of the Due Date in the month of such
Distribution Date, and (ii) the aggregate Prepayment Interest Shortfall
allocable to Payoffs with respect to the Master Serviced Mortgage Loans.
Corporate Trust Office: With respect to the Trustee, the
designated office of the Trustee at which at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located at 000 Xxxx
00xx Xxxxxx Xxxxx-0, Xxx Xxxx, Xxx Xxxx 00000-00000. With respect to the Trust
Administrator, the designated office of the Trust Administrator 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: Structured Finance Services, CSFB 2002-AR2, except for
purposes of Section 6.06, such term shall mean the office or agency of the
Trust Administrator located at 00 Xxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Corresponding Classes of Certificates: With respect to each
Subsidiary REMIC Regular Interest, any Class of Certificates appearing
opposite such Subsidiary REMIC Regular Interest in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date
on which the aggregate Class Principal Balances of the Group I Subordinate
Certificates has been or will be reduced to zero.
Current Interest: For any Class of LIBOR Certificates and
Distribution Date, the amount of interest accruing at the applicable
Pass-Through Rate on the related Class Principal Balance of such Class during
the related Accrual Period; provided, that as to each Class of Group
15
II Certificates the Current Interest shall be reduced by a pro rata portion of
any Interest Shortfalls to the extent not covered by Excess Interest.
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: An agreement, dated as of the date
hereof, among a custodian, the Trustee and the Trust Administrator, pursuant
to which the Trustee appoints such custodian to hold any of the documents or
instruments referred to in Section 2.01 of this Agreement as agent for the
Trustee.
Custodian: A custodian which is appointed pursuant to a
Custodial Agreement. Any Custodian so appointed shall act as agent on behalf
of the Trustee, and shall be compensated by the Trust Administrator or as
otherwise specified therein. 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: January 1, 2002.
Cut-off Date Pool Principal Balance: $324,839,646.96.
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.
Data Remittance Date: With respect to any Distribution Date,
the 10th calendar day of the month in which such Distribution Date occurs, or
if such 10th day is not a Business Day, the Business Day immediately following
such 10th day; provided, however, that with respect to WMMSC, the Data
Remittance Date shall be no later than twelve noon, five Business Days before
the related Distribution Date.
Debt Service Reduction: With respect to a Group I Mortgage
Loan, a reduction by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code in the Scheduled Payment for such Group I 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.
Deficient Valuation: With respect to any Group I 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 that results in a permanent forgiveness of principal, which
valuation in either case results from a proceeding under the Bankruptcy Code.
16
Deferred Amount: For any Class of Group II Subordinate
Certificates (other than the Class II-X Certificates) and the Class II-A-2
Certificates and any Distribution Date, will equal the amount by which (x) the
aggregate of the Applied Loss Amounts previously applied in reduction of the
Class Principal Balance thereof exceeds (y) the aggregate of amounts
previously paid in reimbursement thereof.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
outstanding principal balance of all Group II Mortgage Loans 60 or more days
delinquent (including all foreclosures, bankruptcies and REO Properties) as of
the close of business on the last day of such month, and the denominator of
which is the Aggregate Loan Group Balance as of the close of business on the
last day of such month.
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 Agreement: The Letter of Representation dated as
of the Closing Date by and among DTC, the Depositor and the Trust
Administrator for the benefit of the Trustee.
Determination Date: With respect to each Distribution Date,
the 10th day of the calendar month in which such Distribution Date occurs or,
if such 10th day is not a Business Day, the Business Day immediately
succeeding such Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trust Administrator based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class AR Certificate by such Person
may cause the REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for
17
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Class AR Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
Distribution Date: The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following such
25th day, commencing on February 25, 2002.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation,
and its successors and assigns.
DLJMC Mortgage Loans: The Mortgage Loans identified as such
on the Mortgage Loan Schedule, for which DLJMC is the applicable Seller.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any
Distribution Date, the date on which Scheduled Payments on such Mortgage Loan
are due which is either the first day of the month of such Distribution Date,
or if Scheduled Payments on such Mortgage Loan are due on a day other than the
first day of the month, the date in the calendar month immediately preceding
the Distribution Date on which such Scheduled Payments are due, exclusive of
any days of grace.
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, the
Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Trustee, the Trust Administrator 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:
1. 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
18
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 FHLMC,
FNMA, the Federal Home Loan Banks or any agency or
instrumentality of the United States of America rated AA (or
the equivalent) or higher by the Rating Agencies;
2. 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;
3. 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, 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 or the Trust
Administrator in exchange for such collateral, and (C) be
delivered to the Trustee or the Trust Administrator or, if
the Trustee or the Trust Administrator, as applicable, is
supplying the collateral, an agent for the Trustee or the
Trust Administrator, in such a manner as to accomplish
perfection of a security interest in the collateral by
possession of certificated securities;
4. 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;
5. 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;
6. a guaranteed investment contract approved by each of the
Rating Agencies and issued by an insurance company or other
corporation having a long-term
19
unsecured debt rating in the highest available rating
category of each of the Rating Agencies at the time of such
investment;
7. 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 Master Servicer, a Servicer, the Trustee
or the Trust Administrator and any such funds that are
managed by the Master Servicer, a Servicer, the Trustee or
the Trust Administrator or their respective Affiliates or
for the Master Servicer, a Servicer, the Trustee or the
Trust Administrator or any Affiliate of such Person acts as
advisor, as long as such money market funds satisfy the
criteria of this subparagraph (vii); and
8. such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies,
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.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the requirements
(without regard to the ratings requirements) of an Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the
Preliminary Statement.
Escrow Account: The separate account or accounts created and
maintained by the Master Servicer or a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any 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 8.01 hereof.
20
Excess Loss: The amount of any (i) Fraud Loss on a Group I
Mortgage Loan realized after the Fraud Loss Coverage Termination Date, (ii)
Special Hazard Loss on a Group I Mortgage Loan realized after the Special
Hazard Coverage Termination Date or (iii) Bankruptcy Loss on a Group I
Mortgage Loan realized after the Bankruptcy Coverage Termination Date.
Expense Fee Rate: As to each Mortgage Loan, the sum of the
Master Servicing Fee, the Trust Administrator Fee, the related Servicing Fee
Rate and any primary mortgage guaranty insurance fee rate, if applicable.
Expense Fees: As to each Mortgage Loan, the sum of the
Master Servicing Fee, the Trust Administrator Fee, the related Servicing Fee
and any primary mortgage guaranty insurance premium, as applicable.
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.
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.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group I as to
which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date,
$2,804,570, subject to reduction from time to time by the amount of Fraud
Losses allocated to the Group I Certificates. On each anniversary of the
Cut-off Date, the Fraud Loss Coverage Amount will be reduced as follows: (a)
prior to the fifth anniversary of the Cut-off Date, the Fraud Loss Coverage
Amount will be reduced to an amount equal to the lesser of (i) 1% of the
aggregate Stated Principal Balance of the Group I Mortgage Loans and (ii) the
excess of the Fraud Loss Coverage Amount as of the preceding anniversary of
the Cut-off Date (or, in the case of the first such anniversary, as of the
Cut-off Date) over the cumulative amount of Fraud Losses on the Mortgage Loans
allocated to the Group I Certificates since such preceding anniversary or the
Cut-off Date, as the case may be, and (b) on the fifth anniversary of the
Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at
which the applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Group I 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 related Primary
Mortgage Insurance Policy because of such fraud, dishonesty or
misrepresentation.
21
Group: When used with respect to the Mortgage Loans, either
of Group I or Group II or with respect to the Certificates, the Class or
Classes of Certificates that relate to the corresponding Group.
Group I: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the related Mortgage Loan
Schedule as having been assigned to Group I or with respect to the
Certificates, the Class I-A, Class I-B-1, Class I-B-2, Class I-B-3, Class
I-B-4, Class I-B-5, Class I-B-6 and Class AR Certificates.
Group I Excess Interest Amount: For any Distribution Date,
the amount equal to (i) the product of the Group I Excess Interest Rate and
the Stated Principal Balance of the Mortgage Loans in Loan Group I as of the
second preceding Due Date after giving effect to Scheduled Payments for such
Due Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date, (ii) divided by 12, subject to reduction pursuant to Section
4.01(I)(B).
Group I Excess Interest Rate: For any Distribution Date, a
per annum rate equal to 0.050%.
Group I Mortgage Loan: Any Mortgage Loan in Loan Group I.
Group I Senior Liquidation Amount: As to any Distribution
Date, the aggregate, for each Group I 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 Group I Senior Percentage of the
Stated Principal Balance of such Mortgage Loan and (ii) the Group I Senior
Prepayment Percentage of the Liquidation Principal with respect to such
Mortgage Loan.
Group I Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Class I-A and Class AR Certificates
immediately prior to such Distribution Date and the denominator of which is
the aggregate of the Stated Principal Balances of the Group I Mortgage Loans,
as of the first day of the month of such Distribution Date; provided, however,
in no event will the Group I Senior Percentage exceed 100%.
Group I Senior Prepayment Percentage: The Group I Senior
Prepayment Percentage for any Distribution Date occurring during the five
years beginning on the first Distribution Date will equal 100%. The Group I
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 Group I Senior
Percentage plus 70% of the Group I Subordinate Percentage for such
Distribution Date; for any Distribution Date in the second year thereafter,
the Group I Senior Percentage plus 60% of the Group I Subordinate Percentage
for such Distribution Date; for any Distribution Date in the third year
thereafter, the Group I Senior Percentage plus 40% of the Group I Subordinate
Percentage for such Distribution Date; for any Distribution Date in the fourth
year thereafter, the Group I Senior Percentage plus 20% of the Group I
Subordinate Percentage for such Distribution Date; and for any Distribution
Date thereafter, the Group I Senior Percentage for such Distribution Date
(unless (i) on any of the foregoing Distribution Dates the Group I Senior
Percentage exceeds the initial Group I Senior Percentage, in which case the
Group I Senior Prepayment Percentage will
22
once again equal 100%; or (ii) on any Distribution Date on or before the
Distribution Date in January 2005, the Group I Subordinate Percentage for such
Distribution Date is greater than or equal to twice the Group I Subordinate
Percentage on the Closing Date, in which case the Group I Senior Prepayment
Percentage for such Distribution Date will equal the Group I Senior Percentage
for such Distribution Date, plus 50% of the excess of 100% over the Group I
Senior Percentage for such Distribution Date; or (iii) on any Distribution
Date after the Distribution Date in January 2005, the Group I Subordinate
Percentage for such Distribution Date is greater than or equal to twice the
Group I Subordinate Percentage on the Closing Date, in which case the Group I
Senior Percentage Prepayment Percentage for such Distribution Date will equal
the Group I Senior Percentage for such Distribution Date.
Notwithstanding the foregoing, the Group I Senior Prepayment
Percentage will equal 100% on any Distribution Date as to which (i) the
outstanding principal balance of the Group I Mortgage Loans delinquent 60 days
or more (averaged over the preceding six month period), as a percentage of the
aggregate Group I Subordinate Balance as of such Distribution Date is equal to
or greater than 50% or (ii) cumulative Realized Losses in Loan Group I exceed
(a) with respect to any Distribution Date prior to the sixth anniversary of
the first Distribution Date, 30% of the aggregate Group I Subordinate Balance
as of the Closing Date (the "Original Group I Subordinate Principal Balance"),
(b) with respect to any Distribution Date on or after the sixth anniversary
but prior to the seventh anniversary of the first Distribution Date, 35% of
the Original Group I Subordinate Principal Balance, (c) with respect to any
Distribution Date on or after the seventh anniversary but prior to the eighth
anniversary of the first Distribution Date, 40% of the Original Group I
Subordinate Principal Balance, (d) with respect to any Distribution Date on or
after the eighth anniversary but prior to the ninth anniversary of the first
Distribution Date, 45% of the Original Group I Subordinate Principal Balance
and (e) with respect to any Distribution Date on or after the ninth
anniversary but prior to the tenth anniversary of the first Distribution Date,
50% of the Original Group I Subordinate Principal Balance.
Group I Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group I Senior Percentage of the
Principal Payment Amount for Loan Group I, (ii) the Group I Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group I, and (iii) the
Group I Senior Liquidation Amount.
Group I Subordinate Balance: As of any date of
determination, the aggregatge Class Principal Balances of the Group I
Subordinate Certificates.
Group I Subordinate Liquidation Amount: For any Distribution
Date, the excess, if any, of the aggregate Liquidation Principal of all Group
I Mortgage Loans which became Liquidated Mortgage Loans during the prior
calendar month over the Group I Senior Liquidation Amount.
Group I Subordinate Percentage: As to any Distribution Date
and Loan Group I, the excess of 100% over the Group I Senior Percentage for
that Distribution Date.
Group I Subordinate Prepayment Percentage: As to any
Distribution Date and with respect to Loan Group I, 100% minus the Group I
Senior Prepayment Percentage for such
23
Distribution Date; provided, however, that if the aggregate Class Principal
Balance of the Group I Senior Certificates has been reduced to zero, then the
Group I Subordinate Prepayment Percentage will equal 100%.
Group I Subordinate Principal Distribution Amount: With
respect to any Distribution Date and the Group I Subordinate Certificates and
Loan Group I, will equal the sum of (i) the Group I Subordinate Percentage of
the Principal Payment Amount for Loan Group I, (ii) the Group I Subordinate
Prepayment Percentage of the Principal Prepayment Amount for Loan Group I, and
(iii) the Group I Subordinate Liquidation Amount.
Group I Subordinate Liquidation Amount: For any Distribution
Date, the excess, if any, of the aggregate Liquidation Principal of all Group
I Mortgage Loans which became Liquidated Mortgage Loans during the prior
calendar month over the Group I Senior Liquidation Amount.
Group II: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the related Mortgage Loan
Schedule as having been assigned to Group II or with respect to the
Certificates, the Class II-A-1, Class II-A-2, Class II-M-1, Class II-M-2,
Class II-B and Class II-X Certificates.
Group II Mortgage Loan: Any Mortgage Loan in Loan Group II.
Group II Certificates: The Class II-A-1, Class II-A-2, Class
II-M-1, Class II-M-2, Class II-B and Class II-X Certificates.
Group II Senior Certificates: The Class II-A-1 and Class
II-A-2 Certificates.
Group II Senior Enhancement Percentage: For any Distribution
Date, the fraction, expressed as a percentage, the numerator of which is the
sum of the aggregate Class Principal Balance of the Class II-M-1, Class II-M-2
and Class II-B Certificates and the Overcollateralization Amount (which, for
purposes of this definition only, shall not be less than zero), in each case
after giving effect to payments on such Distribution Date (assuming no Trigger
Event has occurred), and the denominator of which is the Aggregate Loan Group
Balance for Loan Group II for such Distribution Date.
Group II Senior Principal Payment Amount: For any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
has not occurred with respect to such Distribution Date, will be the amount,
if any, by which (x) the aggregate Class Principal Balances of the Class
II-A-1 and Class II-A-2 Certificates, in each case, immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 79.50% and
(ii) the Aggregate Loan Group Balance for Loan Group II for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group II for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance for Loan Group II as of the Cut-off Date.
Group II Subordinate Certificates: The Class II-M-1, Class
II-M-2, Class II-B and Class II-X Certificates.
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GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successors and assigns.
GreenPoint Mortgage Loans:The Mortgage Loans identified as
such on the Mortgage Loan Schedule, for which GreenPoint is the applicable
Seller.
GreenPoint Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which GreenPoint is the
applicable Servicer.
Index: With respect to any Mortgage Loan and each related
Adjustment Date, the index as specified in the related Mortgage Note.
Indirect Participants: Entities, such as banks, brokers,
dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $120,000.
Initial Class Principal Balance: As set forth in the
Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any Mortgage Guaranty Insurance Policy, any standard hazard
insurance policy, 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 of any primary mortgage
guaranty insurance policies, including, without limitation, and any other
Insurance Policies with respect to the Mortgage Loans, to the extent such
proceeds are not applied to the restoration of the related Mortgaged Property
or released to the Mortgagor in accordance with the Master Servicer or a
Servicer's normal servicing procedures.
Interest Determination Date: With respect to the LIBOR
Certificates and for each Accrual Period, the second LIBOR Business Day
preceding the commencement of such Accrual Period.
Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class of Group I Certificates, the sum
of (i) one month's interest accrued during the related Accrual Period at the
applicable Pass-Through Rate for such Class on the related Class Principal
Balance, subject to reduction pursuant to Section 4.01(I)(B), and (ii) any
Class Unpaid Interest Amounts for such Class and Distribution Date.
Interest Rate: With respect to each Subsidiary REMIC
Interest, the applicable rate set forth or calculated in the manner described
in the Preliminary Statement.
Interest Remittance Amount: For any Distribution Date and
the Group II Mortgage Loans, an amount equal to the sum of (1) all interest
collected (other than Payaheads) or advanced in respect of Scheduled Payments
on the Group II Mortgage Loans during the
25
related Collection Period, the interest portion of Payaheads previously
received and intended for application in the related Collection Period and
interest portion of all Payoffs (net of Payoff Interest for such Distribution
Date) and Curtailments received on the Mortgage Loans during the related
Prepayment Period, less (x) the applicable Expense Fees with respect to such
Mortgage Loans and (y) unreimbursed Advances and other amounts due to the
Master Servicer, the applicable Servicer, the Trustee and the Trust
Administrator with respect to such Mortgage Loans, to the extent allocable to
interest, (2) all Compensating Interest Payments paid by the Servicers or the
Master Servicer with respect to the Group II Mortgage Loans with respect to
the related Prepayment Period, (3) the portion of any Substitution Adjustment
Amount or Purchase Price paid with respect to such Mortgage Loans during the
related Collection Period allocable to interest, (4) all Net Liquidation
Proceeds and any other recoveries (net of unreimbursed Advances, Servicing
Advances and expenses, to the extent allocable to interest, and unpaid Expense
Fees) collected with respect to the Group II Mortgage Loans during the related
Collection Period, to the extent allocable to interest and (5) the Group I
Excess Interest Amount for such Distribution Date.
Interest Shortfall: For any Distribution Date and the Group
II Mortgage Loans, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on Group
II Mortgage Loans resulting from (a) Principal Prepayments received during the
related Prepayment Period after giving effect to the Compensating Interest
Payment for such Distribution Date and (b) interest payments on certain of the
Group II Mortgage Loans being limited pursuant to the provisions of the
Soldiers' and Sailors' Civil Relief Act of 1940.
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 WMMSC in the trust
department of the Investment Depository pursuant to Section 3.05.
Investment Depository: JPMorgan Chase Bank, New York, New
York or another bank or trust company designated from time to time by WMMSC.
The Investment Depository shall at all times be an Eligible Institution.
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.
LIBOR Certificates: As specified in the Preliminary
Statement.
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 Master Servicer or a 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.
26
Liquidation Expenses: Customary and reasonable "out of
pocket" expenses incurred by the Master Servicer or a Servicer (or the related
Sub-Servicer) in connection with the liquidation of any defaulted Mortgage
Loan and not recovered by the Servicer (or the related Sub-Servicer) under a
Primary Mortgage Insurance Policy for reasons other than such Servicer's
failure to comply with Section 3.09 hereof, such expenses including, without
limitation, legal fees and expenses, any unreimbursed amount expended by the
Master Servicer or a Servicer pursuant to Section 3.11 hereof respecting the
related Mortgage and any related and unreimbursed expenditures for real estate
property taxes or for property restoration or preservation to the extent not
previously reimbursed under any hazard insurance policy for reasons other than
such Servicer's failure to comply with Section 3.11 hereof.
Liquidation Principal: As to any Distribution Date and a
Loan Group, the principal portion of Liquidation Proceeds received with
respect to each Mortgage Loan in that Loan Group which became a Liquidated
Mortgage Loan (but not in excess of the principal balance thereof) during the
preceding calendar month.
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.
Loan Group: Either of Loan Group I or Loan Group II, as
applicable.
Loan Group I: All Mortgage Loans identified as Loan Group I
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group II: All Mortgage Loans identified as Loan Group
II Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed
as a percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan.
Lost Mortgage Note: Any Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
Master REMIC: As described in the Preliminary Statement.
Master Serviced Mortgage Loans: The Mortgage Loans directly
serviced by an entity other than Greenpoint, Olympus or WMMSC.
Master Servicer: Chase Manhattan Mortgage Corporation, a New
Jersey corporation, its successors and assigns.
27
Master Servicing Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the Master
Servicing Fee Rate on the Stated Principal Balance of such Mortgage Loan
calculated as of the first day of the related Due Period, subject to reduction
as provided in Section 3.14.
Master Servicing Fee Rate: As to each Mortgage Loan, a per
annum rate equal to 0.015%.
Maximum Interest Rate: With respect to the LIBOR
Certificates and any Distribution Date, an annual rate equal to the weighted
average of the Maximum Mortgage Rates of the Group II Mortgage Loans minus the
Expense Fee Rate.
Maximum Mortgage Rate: With respect to each Mortgage Loan,
the percentage set forth in the related Mortgage Note as the maximum Mortgage
Rate thereunder.
Minimum Mortgage Rate: With respect to each Mortgage Loan,
the percentage set forth in the related Mortgage Note as the minimum Mortgage
Rate thereunder.
Monthly Excess Cashflow: For any Distribution Date, an
amount equal to the sum of the Monthly Excess Interest and
Overcollateralization Release Amount, if any, for such date.
Monthly Excess Interest: For any Distribution Date, the
Interest Remittance Amount remaining after the application of payments
pursuant to items (i) through (iv) in the distribution thereof, pursuant to
Section 4.01(II)(a) and the Principal Payment Amount remaining after
application of items (i) through (iv) of Section 4.01(II)(b) or 4.01(II)(c),
as applicable.
Moody's: Xxxxx'x Investors Service, Inc. or any successor
thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage,
deed of trust or other instrument creating a first lien on a fee simple or
leasehold estate in real property securing a Mortgage Note.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage
File and the Servicer Mortgage File.
Mortgage Guaranty Insurance Policy: Each policy of primary
mortgage guaranty insurance or any replacement policy therefor with respect to
any Mortgage Loan.
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.
28
Mortgage Loan Purchase Price: The price, calculated as set
forth in Section 11.01, to be paid in connection with the purchase of the
Mortgage Loans pursuant to an Optional Termination of the Trust Fund.
Mortgage Loan Schedule: The list of Mortgage Loans (as from
time to time amended by the related 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 and applicable Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the
state and zip code;
4. a code indicating the type of Mortgaged Property and the
occupancy status.
5. 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;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. 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;
12. a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. the Expense Fee Rate as of the Cut-off Date;
15. the Servicing Fee Rate and the Master Servicing Fee Rate
(which may be disclosed on the Mortgage Loan Schedule in two
parts identified as the servicing fee and master servicing
fee);
29
16. whether such Mortgage Loan is a DLJMC Mortgage Loan or a
GreenPoint Mortgage Loan;
17. whether such Mortgage Loan is a GreenPoint Serviced Mortgage
Loan, an Olympus Serviced Mortgage Loan, a WMMSC Serviced
Mortgage Loan or a Master Serviced Mortgage Loan;
18. the Index that is associated with such Mortgage Loan, if
applicable;
19. the Gross Margin, if applicable;
20. the Periodic Rate Cap, if applicable;
21. the Minimum Mortgage Rate, if applicable;
22. the Maximum Mortgage Rate, if applicable; and
23. the first Adjustment Date after the Cut-off Date, if
applicable.
With respect to the Mortgage Loans in the aggregate, each Mortgage
Loan Schedule shall set forth the following information, as of the
Cut-off Date:
(i) the number of Mortgage Loans;
(ii) the current aggregate principal balance of the
Mortgage Loans 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
(iii) the weighted average Mortgage Rate of the Mortgage
Loans.
Mortgage Note: The original executed note or other evidence
of the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a
Mortgage Note.
Mortgaged Property: The underlying real property securing a
Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and
Loan Group II, a fraction, expressed as a percentage, the numerator of which
is equal to the excess of (x) the Aggregate Loan Group Balance for such
Distribution Date, multiplied by the Net WAC Rate for such Loan Group over (y)
the Interest Remittance Amount for such Loan Group for such Distribution Date,
and the denominator of which is an amount equal to the Aggregate Loan Group
Balance for such Distribution Date, multiplied by the actual number of days
elapsed in the related Accrual Period divided by 360.
30
Net Funds Cap: For any Distribution Date and Loan Group II,
will be a per annum rate equal to (a) a fraction, expressed as a percentage,
the numerator of which is the product of (1) the Optimal Interest Remittance
Amount for such date and Loan Group II and (2) 12, and the denominator of
which is the applicable Aggregate Loan Group Balance immediately preceding
such Distribution Date, multiplied by (b) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the related
Accrual Period.
Net Liquidation Proceeds: With respect to any Liquidated
Mortgage Loan, the excess of the related Liquidation Proceeds over the sum of
Liquidation Expenses, Expense Fees and unreimbursed Advances and Servicing
Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any
time, the per annum rate equal to the Mortgage Rate for such Mortgage Loan
less the related Expense Fee Rate.
Net WAC Rate: As to any Distribution Date and Loan Group, a
rate equal to the weighted average of the Net Mortgage Rates on the Mortgage
Loans in such Loan Group as of the second preceding Due Date after giving
effect to payments due on such Due Date, whether or not received, weighted on
the basis of the Stated Principal Balances as of such date reduced by, in the
case of Group I, the Group I Excess Interest Rate. In addition, for any
purpose for which the Net WAC Rate is calculated, the interest rate on the
Mortgage Loans shall be appropriately adjusted to account for the difference
between any counting convention used with respect to the Mortgage Loans and
any counting convention used with respect to a REMIC regular interest.
Net Prepayment Interest Shortfalls: As to any Distribution
Date, the amount by which the aggregate of Prepayment Interest Shortfalls
during the related Prepayment Period exceeds the Compensating Interest Payment
for such Distribution Date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or
Servicing Advance previously made or proposed to be made by the Master
Servicer or a Servicer that, in the good faith judgment of the Master Servicer
or a Servicer, will not be ultimately recoverable by the Master Servicer or a
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by the Chairman
of the Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, a Sub-Servicer, the Trustee or the Trust
Administrator, as the case may be, and delivered to the Depositor, the
Sellers, the Master Servicer, the Special Servicer, the Servicers, the Trustee
or the Trust Administrator, as required by this Agreement.
Olympus: Olympus Servicing, L.P., a Delaware limited
partnership, and its successors and assigns.
31
Olympus Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which Olympus is the
applicable Servicer, and if Olympus is the Special Servicer, any Special
Serviced Mortgage Loans.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Depositor, the Master Servicer or a Servicer, reasonably
acceptable to the Trustee and the Trust Administrator. With respect to the
definition of Eligible Account in this Article I and Sections 2.05 and 7.04
hereof and any opinion dealing with the qualification of the REMIC or
compliance with the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor, the Master Servicer and such Servicer, (ii) not
have any direct financial interest in the Depositor, the Master Servicer or
such Servicer or in any affiliate of either of them and (iii) not be connected
with Depositor, the Master Servicer or such Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions.
Optimal Interest Remittance Amount: For any Distribution
Date and Loan Group II, the excess of (i) the product of (1) (x) the weighted
average of the Mortgage Rates of the Mortgage Loans in such Loan Group as of
the first day of the related Collection Period less the weighted average
Expense Fee Rate divided by (y) 12 and (2) the applicable Aggregate Loan Group
Balance for Loan Group II for the immediately preceding Distribution Date,
over (ii) any expenses that reduce the Interest Remittance Amount that did not
arise as a result of a default or delinquency of the Mortgage Loans in the
Loan Group II.
Optional Termination: The purchase of the Mortgage Loans
pursuant to Section 11.01.
Optional Termination Date: As defined in Section 11.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Overcollateralization Amount: For any Distribution Date, an
amount equal to the amount, if any, by which (x) the Aggregate Loan Group
Balance for such Distribution Date exceeds (y) the aggregate Class Principal
Balance of the Group II Certificates after giving effect to payments on such
Distribution Date.
Overcollateralization Deficiency: For any Distribution Date,
the amount, if any, by which (x) the Targeted Overcollateralization Amount for
such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Class Principal Balance
of the Group II Certificates resulting from the payment of the Principal
Payment Amount on such Distribution Date but prior to allocation of any
Applied Loss Amount on the Group II Certificates on such Distribution Date.
Overcollateralization Release Amount: For any Distribution
Date, an amount equal to the lesser of (x) the related Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated
32
for this purpose on the basis of the assumption that 100% of the aggregate of
the related Principal Remittance Amount for such date is applied on such date
in reduction of the aggregate of the Class Principal Balances of the Group II
Certificates, exceeds (2) the Targeted Overcollateralization Amount for such
date.
Participant: A broker, dealer, bank, other financial
institution or other Person for whom DTC effects book-entry transfers and
pledges of securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company
described in Section 851 of the Code, a real estate investment trust described
in Section 856 of the Code, a common trust fund or an organization described
in Section 1381(a) of the Code, (b) any partnership, trust or estate or (c)
any person holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of
Certificates, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement. Interest on the Certificates other
than the LIBOR Certificates will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest on the LIBOR Certificates will be
computed on the basis of a 360-day year and the actual number of days elapsed
in the related Accrual Period.
Payahead: Any Scheduled Payment intended by the related
Mortgagor to be applied in a Collection Period subsequent to the Collection
Period in which such payment was received.
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.
Payoff Earnings: For any Distribution Date with respect to a
WMMSC Serviced Mortgage Loan, on which Payoff was received by WMMSC during the
related Prepayment Period, the aggregate of the interest earned by WMMSC from
investment of each such Payoff from the date of receipt of such Payoff until
the Business Day immediately preceding the related Distribution Date (net of
investment losses).
Payoff Interest: For any Distribution Date with respect to
each WMMSC Serviced Mortgage Loan for which a Payoff was received on or after
the first calendar day of the month of such Distribution Date and before the
15th calendar day of such month, an amount of interest thereon at the
applicable Net Mortgage Rate from the first day of the month of distribution
through the day of receipt thereof; to the extent (together with Payoff
Earnings and the portion of the aggregate Servicing Fee described in clause
(i) of the definition of Compensating Interest Payment payable to WMMSC) not
required to be distributed as Compensating Interest Payments on such
Distribution Date, Payoff Interest shall be payable to WMMSC as additional
servicing compensation.
33
Percentage Interest: As to any Certificate, either the
percentage 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.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government, or any agency or political subdivision thereof.
Physical Certificates: As set forth in the Preliminary
Statement.
Prepayment Interest Shortfall: As to any Mortgage Loan,
Distribution Date and Principal Prepayment (other than a Principal Prepayment
on a WMMSC Serviced Mortgage Loan, during the period from and including the
first day to and including the 14th day of the month of such Distribution
Date) received during the related Prepayment Period, 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 Servicing Fee Rate, Master Servicing Fee Rate
and Trust Administrator 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 with respect to a WMMSC Serviced Mortgage Loan, the related
"Prepayment Period" will commence on the 15th day of the month preceding the
month in which the related Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on the Cut-off Date) and will end on the
14th day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and each Payoff with respect to any other Mortgage
Loans and all Curtailments, 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 Loan
Group I, the sum of (i) the principal portion of the Scheduled Payments on the
Group I Mortgage Loans due on the related Due Date, (ii) the principal portion
of purchase proceeds received with respect to any Group I Mortgage Loan which
was purchased as permitted or required by this Agreement during the prior
calendar month and (iii) any other unscheduled payments of principal which
were received on the Group I Mortgage Loans during the prior calendar month,
other than Principal Prepayments or Liquidation Principal.
For any Distribution Date and Loan Group II, an amount equal
to the Principal Remittance Amount for such date minus the
Overcollateralization Release Amount, if any, for such date.
34
Principal Prepayment: Any payment of principal on a Mortgage
Loan which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and
Loan Group I, the sum of all Principal Prepayments relating to the Group I
Mortgage Loans which were received during the related Prepayment Period.
Principal Remittance Amount: For any Distribution Date and
Loan Group II, an amount equal to the sum of (1) all principal collected
(other than Payaheads) or advanced in respect of Scheduled Payments on the
Group II Mortgage Loans during the related Collection Period (less
unreimbursed Advances, Servicing Advances and other amounts due to the
Servicers, the Trustee, the Master Servicer and the Trust Administrator with
respect to the Group II Mortgage Loans, to the extent allocable to principal)
and the principal portion of Payaheads previously received and intended for
application in the related Collection Period, (2) all Principal Prepayments
received during the related Prepayment Period, (3) the outstanding principal
balance of each Mortgage Loan that was repurchased by the Master Servicer, a
Seller, or a Servicer or purchased by Olympus, during the related Collection
Period, (4) the portion of any Substitution Adjustment Amount paid with
respect to any Deleted Mortgage Loans during the related Collection Period
allocable to principal and (5) all Net Liquidation Proceeds and any other
recoveries (net of unreimbursed Advances, Servicing Advances and other
expenses, to the extent allocable to principal) collected with respect to the
Group II Mortgage Loans during the related Collection Period, to the extent
allocable to principal.
Private Certificates: As set forth in the Preliminary
Statement.
Pro Rata Share: As to any Distribution Date and the Class
I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6
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 Group I
Subordinate Certificates.
Prospectus: The Prospectus, dated October 23, 2001, relating
to the offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated
January 30, 2002, relating to the offering of the Offered Certificates in the
form in which it was or will be filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the 1933 Act with respect to the
offer and sale of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required
to be purchased by a Seller pursuant to Section 2.02 or 2.03 or purchased at
the option of the Special Servicer pursuant to Section 3.11(g), the sum of (i)
100% of the unpaid principal balance of the Mortgage Loan on the date of such
purchase, (ii) accrued and unpaid interest on the Mortgage Loan at the
35
applicable Mortgage Rate (reduced by the related Servicing Fee Rate, if the
purchaser is also the Servicer thereof) from the date through which interest
was last paid by the Mortgagor to the Due Date in the month in which the
Purchase Price is to be distributed to Certificateholders and (iii) the amount
of any unreimbursed Servicing Advances made by the Servicer with respect to
such Mortgage Loan. With respect to any Mortgage Loan required or allowed to
be purchased, the related Servicer or the related Seller, as applicable, shall
deliver to the Trustee and the Trust Administrator an Officer's Certificate as
to the calculation of the Purchase Price.
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.
Qualified Substitute Mortgage Loan: A Mortgage Loan
substituted by a 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 L (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
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; (v) have a Maximum Mortgage Rate
and Minimum Mortgage Rate not less than the respective such rates for the
Deleted Mortgage Loan, have a Gross Margin equal to or greater than the
Deleted Mortgage Loan and have the same Index as the Deleted Mortgage Loan;
and (vi) comply with each representation and warranty set forth in Section
2.03(b).
Rating Agency: Xxxxx'x or S&P, or any successor to either of
them.
Ratings: As of any date of determination, the ratings, if
any, of the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with
respect to each Liquidated Mortgage Loan, an amount (not less than zero or
more 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
applicable Net Mortgage Rate from the related Due Date as to which interest
was last paid or advanced (and not reimbursed) to 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 Net Liquidation Proceeds, if any,
36
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; (2) for any Mortgage Loan subject to a Deficient
Valuation, the excess of the Stated Principal Balance of that Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; or (3) for any Debt Service Reduction
Mortgage Loan, the present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled Payment on the
applicable Due Date and that no Principal Prepayments are received on the
Mortgage Loan, discounted at the applicable Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business on the last
Business Day of the calendar month immediately preceding the month of such
Distribution Date.
Reference Bank Rate: As to any Accrual Period relating to
the LIBOR Certificates 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 time, on the Interest Determination Date prior
to the first day of such Accrual Period to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the
aggregate Class Principal Balance of the LIBOR 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 Trust
Administrator after consultation with DLJMC, as of 11:00 A.M., New York City
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 Balance of the LIBOR Certificates. If no such quotations can be
obtained, the Reference Bank Rate shall be the Reference Bank Rate applicable
to the preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the
London interbank market, selected by the Trust Administrator after
consultation with DLJMC.
Registration Statement: That certain registration statement
on Form S-3, as amended (Registration No. 333-61840), relating to the offering
by the Depositor from time to time of its Mortgage-Backed Pass-Through
Certificates (Issuable in Series) as heretofore declared effective by the
Securities and Exchange Commission.
Regular Certificates: All of the Certificates other than the
Class AR Certificates.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
37
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. Reference herein to REMIC refers to
the Master REMIC and the Subsidiary REMIC, as the context requires.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC Election: An election, for federal income tax
purposes, to treat certain assets as a REMIC.
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.
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.
Required Basis Risk Reserve Fund Deposit: With respect to
any Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the greater of (a) $15,000 and (b) product of 0.50% and the
Aggregate Loan Group Balance over (ii) the amount of funds on deposit in the
Basis Risk Reserve Fund prior to deposits thereto on such Distribution Date.
With respect to any Distribution Date on which the Net Excess Spread is equal
to or greater than 0.25%, the excess of (i) $5,000 over (ii) the amount of
funds on deposit in the Basis Risk Reserve Fund prior to deposits thereto on
such Distribution Date.
Required Basis Risk Reserve Fund Amount: With respect to any
Distribution Date on which the Net Excess Spread is less than 0.25%, the
greater of (a) $15,000 and (b) the product of 0.50% and the Aggregate Loan
Group Balance. With respect to any Distribution Date on which the Net Excess
Spread is equal to or greater than 0.25%, $5,000.
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 in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee
or the Trust Administrator, shall mean any officer within the corporate trust
department of the Trustee or the Trust Administrator, respectively, including
any Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or any other officer
38
of the Trustee or the Trust Administrator customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rolling Three Month Delinquency Rate: For any Distribution
Date will be the fraction, expressed as a percentage, equal to the average of
the Delinquency Rates for each of the three (or one and two, in the case of
the first and second Distribution Dates) immediately preceding months.
Rule 144A: Rule 144A under the 1933 Act, as in effect from
time to time.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
Scheduled Final Distribution Date: The Distribution Date in
February 2032.
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 pursuant to the terms of the related Mortgage Note Loan.
Sellers: DLJMC and GreenPoint.
Senior Certificates: As specified in the Preliminary
Statement.
Servicers: GreenPoint, Olympus and WMMSC, and any successor
in interest thereto or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a
Mortgage Loan not required to be included in the Trustee Mortgage File and
held by the Master Servicer or the related Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in the performance by a Servicer
or the Master 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) compliance with the obligations under Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (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 a Servicer or the Master 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
39
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 set forth on the related Mortgage Loan Schedule.
Servicing Officer: Any officer of the Master Servicer or a
Servicer involved in, or responsible for, the administration and servicing of
the related Mortgage Loans whose name and specimen signature appear on a list
of servicing officers furnished to the Trustee and the Trust Administrator by
the Master Servicer or by a Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended and delivered to the
Trustee and Trust Administrator.
Special Event of Default: An Event of Default under Section
8.01(b) which arises solely from the cumulative effect of a breach or breaches
by WMMSC of its agreements as set forth in clauses (i)(x) through (z),
inclusive, of the first paragraph of Section 2.07(g).
Special Hazard Loss: A Realized Loss (or portion thereof)
with respect to a Mortgage Loan arising from any direct physical loss or
damage to a Mortgaged Property which is not covered by a standard hazard
maintenance policy with extended coverage or by a flood insurance policy, if
applicable (or which would not have been covered by such a policy had such a
policy been maintained), which is caused by or results from any cause except:
(i) wear and tear, deterioration, rust or corrosion, mold, wet or dry rot,
inherent vice or latent defect, animals, birds, vermin, insects; (ii)
settling, subsidence, cracking, shrinkage, bulging or expansion of pavements,
foundations, walls, floors, roofs or ceilings; (iii) errors in design, faulty
workmanship or faulty materials, unless the collapse of the property or part
thereof ensues and then only for the ensuing loss; (iv) nuclear or chemical
reaction or nuclear radiation or radioactive or chemical contamination, all
whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote; (v) hostile or warlike action in time of peace
or war, including action in hindering, combating or defending against an
actual, impending or expected attack (a) by any government of sovereign power,
de jure or de facto, or by any authority maintaining or using military, naval
or air forces, (b) by military, naval or air forces, or (c) by an agent of any
such government, power, authority or forces; (vi) any weapon of war employing
atomic fission or radioactive force whether in time of peace or war; or (vii)
insurrection, rebellion, revolution, civil war, usurped power or action taken
by governmental authority in hindering, combating or defending against such
occurrence, seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority, or risks of
contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the
Group I Subordinate Certificates, as of the Closing Date, $2,058,964 subject
to reduction from time to time, to be an amount equal on any Distribution Date
to the lesser of (a) the greatest of (i) 1% of the aggregate of the principal
balances of the Group I Mortgage Loans, (ii) twice the principal balance of
the largest Group I Mortgage Loan and (iii) the aggregate principal balances
of the Group I Mortgage Loans secured by Mortgaged Properties located in the
single California postal zip code
40
area having the highest aggregate principal balance of any such zip code area
and (b) the Special Hazard Loss Coverage Amount as of the closing date less
the amount, if any, of losses attributable to Special Hazard Mortgage Loans
incurred since the closing date. All principal balances for the purpose of
this definition will be calculated as of the first day of the month preceding
such Distribution Date after giving effect to scheduled installments of
principal and interest on the Mortgage Loans then due, whether or not paid.
Special Hazard Loss Coverage Termination Date: The date on
which the Special Hazard Loss Coverage Amount is reduced to zero.
Special Servicer: Olympus Servicing, L.P., and its
successors and permitted assigns.
Special Serviced Mortgage Loan: The Mortgage Loans for which
the Special Servicer acts as servicer pursuant to Section 3.19.
Standard Hazard Policy: Each standard hazard insurance
policy or replacement therefor referred to in Section 3.09.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and date
of determination, the principal balance of such Mortgage Loan as of the
Cut-off Date, after application of the principal portion of all Scheduled
Payments due on or before the Cut-off Date, whether or not received, minus the
sum of (i) all amounts allocable to principal that have been distributed to
Certificateholders with respect to such Mortgage Loan on or before that date
of determination and (ii) any Realized Losses on such Mortgage Loan that have
been allocated to one or more Classes of Certificates on or before that date
of determination.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in February 2005 and (y) the first Distribution Date on
which the Group II Senior Enhancement Percentage (calculated for this purpose
after giving effect to payments or other recoveries in respect of the Group II
Mortgage Loans during the related Collection Period but before giving effect
to payments on the Group II Certificates on such Distribution Date) is greater
than or equal to 20.50%.
Subordinate Certificates: As specified in the Preliminary
Statement.
Subordination Level: As to any Distribution Date and any
Class of Group I Subordinate Certificates, the percentage obtained by dividing
the sum of the Class Principal Balances of all Classes of Group I Subordinate
Certificates which are subordinate in right of payment to such Class by the
sum of the Class Principal Balances of the Group I Certificates, in each case
immediately prior to such Distribution Date.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC
Regular Interests.
41
Subsidiary REMIC Regular Interest: Any one of the "regular
interests" in either REMIC 1 or REMIC 2 as described in the Preliminary
Statement.
Substitution Adjustment Amount: As defined in Section 2.03.
Sub-Servicer: Any other entity with respect to any Mortgage
Loan under any Sub-Servicing Agreement applicable to such Mortgage Loan and
any successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between the
Master Servicer or a Servicer and a Sub-Servicer pursuant to which the Master
Servicer or a Servicer delegates any of its servicing responsibilities with
respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary
Statement.
Substitution Adjustment Amount: As defined in Section 2.04.
Targeted Overcollateralization Amount: For any Distribution
Date prior to the Stepdown Date, 0.50% of the Aggregate Loan Group Balance as
of the Cut-off Date; with respect to any Distribution Date on or after the
Stepdown Date and with respect to which a Trigger Event has not occurred, the
greater of (a) 1.00% of the Aggregate Loan Group Balance for such Distribution
Date, or (b) 0.50% of the Aggregate Loan Group Balance as of the Cut-off Date;
with respect to any Distribution Date on or after the Stepdown Date with
respect to which a Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation Section 1.860F-4(d)
and temporary Treasury regulation Section 301.6231(a)(7)-1T. Initially, the
Tax Matters Person shall be the Trust Administrator.
Telerate Page 3750: The display designated as page 3750 on
Bridge Telerate Service (or such other page as may replace page 3750 on that
service for the purpose of displaying London interbank offered rates of major
banks).
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the related Collection Period equals or exceeds the lesser of (i)
12.00% or (ii) 50.00% of the Group II Senior Enhancement Percentage for such
Distribution Date.
Trust Administrator: JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity, but solely in its capacity as
trust administrator for the benefit of the Certificateholders under this
Agreement, and any successor thereto, as provided herein.
42
Trust Administrator Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the Trust
Administrator Fee Rate on the Stated Principal Balance of such Mortgage Loan
calculated as of the first day of the related Due Period.
Trust Administrator Fee Rate: As to each Mortgage Loan, a
per annum rate equal to 0.0025%.
Trust Fund: The corpus of the trust created by this
Agreement consisting of (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Collection Account,
the Certificate Account, the Basis Risk Reserve Fund and all amounts deposited
therein pursuant to the applicable provisions of this Agreement, (d) any
insurance policies with respect to the Mortgage Loans, (e) the Depositor's
rights under the Assignment and Assumption Agreement and (f) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
Trust Receipt and Final Certification: As defined in Section
2.02(a).
Trust Receipt and Initial Certification: As defined in
Section 2.02(a).
Trustee: Bank One, National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in
Section 2.01 hereof pertaining to a particular Mortgage Loan and any
additional documents required to be added to the Trustee Mortgage File
pursuant to this Agreement.
Underwriter's Exemption: Prohibited Transaction Exemption
2000-58, 65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
99% of all Voting Rights shall be allocated among the Class A, Class M, and
Class B Certificates. The portion of such 99% Voting Rights allocated to each
of the Class A, Class M and Class B Certificates shall be based on the
fraction, expressed as a percentage, the numerator of which is the aggregate
Class Principal Balance then outstanding
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and the denominator of which is the Class Principal Balance of all Classes
then outstanding. The Class II-X Certificates shall be allocated 1% of the
Voting Rights. Voting Rights shall be allocated among the Certificates within
each such Class (other than the Class II-X Certificates, which has only one
certificate) in proportion to their respective outstanding Class Principal
Balances. The Class AR Certificates shall have no Voting Rights.
WMMSC: Washington Mutual Mortgage Securities Corp., a
Delaware corporation, and its successors and assigns.
WMMSC Serviced Mortgage Loans: The Mortgage Loans identified
as such on the Mortgage Loan Schedule, for which WMMSC is the applicable
Servicer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns,
delivers, sets over and otherwise conveys to the Trustee for the benefit of
the Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Collection Account,
the Certificate Account, the Basis Risk Reserve Fund, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement, (d)
any insurance policies with respect to the Mortgage Loans, (e) the Depositor's
rights under the Assignment and Assumption Agreement and (f) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
(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 a 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 bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed
"Pay to the order of ________________, without recourse" and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit and
indemnity from the related Seller stating that the original Mortgage
Note was lost or destroyed, (together with a copy of such Mortgage
Note, if available) and indemnifying the Trust Fund against any loss,
cost or liability resulting from the failure to deliver the original
Mortgage Note;
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(ii) the original of any guarantee executed in connection
with the Mortgage Note (if any);
(iii) 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. The
return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller;
(iv) 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 related Seller, the
original to be delivered to the related Seller forthwith after return
from such recording office) with evidence of recording thereon, if
any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan from the last assignee
assigned in blank;
(vi) the originals of any intervening recorded Assignments
of Mortgage, showing a complete chain of assignment from origination
to the the last assignee, 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 related
Seller, the original to be delivered to the Trustee forthwith after
return from such recording office); and
(vii) the original mortgage title insurance policy, or copy
of title commitment (or in appropriate jurisdictions, attorney's
opinion of title and abstract of title).
In the event the Depositor delivers to the Trustee or the
Custodian 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 Depositor shall deliver or cause to be delivered to the
Trustee or the Custodian, 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 or the Custodian
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 related Seller or the Depositor by the applicable title insurer in the
case of clause (c) above, the Depositor shall promptly deliver to the Trustee
or the Custodian, 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
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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, DLJMC shall,
at its expense, (i) affix or cause to be affixed 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 DLJMC has not
received the information required to prepare such assignment in recordable
form, DLJMC'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 DLJMC need not
cause to be recorded 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 Depositor (at the Depositor's expense) to the Trustee, the
Trust Administrator and DLJMC, 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.
If any original Mortgage Note referred to in Section
2.01(b)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or the Custodian of a photocopy of such Mortgage Note, if available,
with a lost note affidavit and indemnity. If any of the original Mortgage
Notes for which a lost note affidavit and indemnity was delivered to the
Trustee or the Custodian is subsequently located, such original Mortgage Note
shall be delivered to the Trustee or the Custodian within three Business Days.
(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 any 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
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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 9-313 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 (d)
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 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.
(a) The Trustee acknowledges receipt of the documents
identified in the Trust Receipt and Initial Certification in the form annexed
hereto as Exhibit J and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files, and
that it holds or will hold such other assets 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
of the Mortgage Notes in the State of Illinois or the State of Texas, unless
otherwise permitted by the Rating Agencies.
The Trustee or the Custodian agrees to execute and deliver
on the Closing Date to the Depositor, the Master Servicer, each Seller and the
Trust Administrator a Trust Receipt and Initial Certification in the form
annexed hereto as Exhibit J. Based on its review and examination, and only as
to the documents identified in such Trust Receipt and Initial Certification,
the Trustee or the Custodian acknowledges that such documents appear regular
on their face and relate to such Mortgage Loan. The Trustee or 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 Trustee
or the Custodian shall deliver to the Depositor, the Master Servicer, each
Seller and Servicer and the Trust
47
Administrator a Trust Receipt and Final Certification in the form annexed
hereto as Exhibit K, with any applicable exceptions noted thereon.
If, in the course of such review, the Trustee or the
Custodian finds any document constituting a part of a Mortgage File which does
not meet the requirements of Section 2.01, the Trustee or the Custodian shall
list such as an exception in the Trust Receipt and 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 related Seller shall promptly correct or cure such
defect within 90 days from the date it was so notified of such defect and, if
the related Seller does not correct or cure such defect within such period,
the related 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 or the Custodian within 90 days
from the date the related Seller was notified of such defect in writing at the
Purchase Price of such Mortgage Loan; or such longer period not to exceed 720
days from the Closing Date 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; provided, however, that
a Seller shall have no liability for recording any Assignment of Mortgage in
favor of the Trustee or for the Trustee's failure to record such Assignment of
Mortgage, and provided, further, that no Seller shall 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 within 270 days from the Closing Date
indicating each Mortgage Loan (a) for which a mortgage or assignment of
mortgage required to be recorded hereunder 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 related Mortgage Loan is returned to the Trustee.
Any such substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee and the Trust
Administrator 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 or the Trust Administrator of a Request
for Release substantially in the form of Exhibit L. No substitution is
permitted to be made in any calendar month after the Determination Date for
such month. The Purchase Price for any such Mortgage Loan shall be deposited
by the related 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 L hereto, the Trustee or the Custodian
shall release the related Mortgage File to the related 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.
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(b) It is understood and agreed that the obligation of each
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 Trust Administrator, the
Depositor and any Certificateholder against such Seller.
SECTION 2.03 Representations and Warranties of the Sellers,
Master Servicer and Servicers.
(a) Each of DLJMC, in its capacity as a Seller, CMMC, in its
capacity as Master Servicer, GreenPoint, in its capacity as a Seller and a
Servicer, Olympus, in its capacity as a Servicer and Special Servicer, and
WMMSC, in its capacity as a Servicer, hereby makes the representations and
warranties applicable to it set forth in Schedule IIA, IIB, IIC, IID or IIE,
as applicable hereto, and by this reference incorporated herein, to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date, or
if so specified therein, as of the Cut-off Date or such other date as may be
specified. In addition, Greenpoint, in its capacity as a Servicer, Olympus, in
its capacity as a Servicer, and WMMSC, in its capacity as a Servicer, hereby
make the representations and warranties applicable to it set forth in Schedule
IIC, IID and IIE, respectively, as applicable hereto, and by this reference
incorporated herein, to the Master Servicer, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified, and the Master Servicer, in its capacity as Master Servicer, hereby
makes the representations and warranties applicable to it set forth in
Schedule IIB, and by this reference incorporated herein, to WMMSC 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) Each of DLJMC, in its capacity as a Seller, and
GreenPoint, in its capacity as a Seller, hereby makes the representations and
warranties set forth in Schedule IIIA or IIIB applicable to the Mortgage Loans
and by this reference incorporated herein, to the Depositor, the Trustee and
the Trust Administrator, as of the Closing Date, or if so specified therein,
as of the Cut-off Date or such other date as may be specified.
(c) 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, the party discovering such breach shall give prompt notice
thereof to the other parties. Each 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 in any Mortgage Loan sold by the related Seller to the
Trust, 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 or
Mortgage Loans from the Trustee at the Purchase 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 and the Trust
Administrator 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
49
Trustee or the Trust Administrator of a Request for Release substantially in
the form of Exhibit L relating to the Deleted Mortgage Loan and the Mortgage
File for any such Qualified Substitute Mortgage Loan. The related Seller shall
promptly reimburse the Trustee, the Trust Administrator and the related
Servicer for any actual out-of-pocket expenses reasonably incurred by the
Trustee, the Trust Administrator and such related Servicer 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 Master Servicer,
any Seller, any Servicer, the Special Servicer, the Trustee or the Trust
Administrator 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,
notwithstanding such 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 related 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
related 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
related Seller shall be entitled to retain all amounts received in respect of
such Deleted Mortgage Loan. The related Seller shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and the related Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Servicer and the Trust
Administrator. Upon such substitution, the Qualified Substitute Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the related 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
Collection Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph, the
Trustee or the Custodian, as applicable, shall release the Mortgage File held
for the benefit of the Certificateholders relating to such Deleted Mortgage
Loan to the related Seller and shall execute and deliver at the related
Seller's direction such instruments of transfer or assignment prepared by the
related Seller, in each case without recourse, as shall be necessary to vest
title in the related 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 a Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Master Servicer 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
50
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 Collection Account by the related 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 a Seller shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited in the Collection Account
on or before the Business Day immediately preceding the Distribution Date in
the month following the month during which the related Seller became obligated
hereunder to repurchase or replace such Mortgage Loan and upon such deposit of
the Purchase 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 L
hereto, the Trustee, the Trust Administrator or the Custodian, as applicable,
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, the Trustee or the
Trust Administrator 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, the Trust Administrator or the Custodian for the benefit of the
Certificateholders.
Notwithstanding the foregoing, the substitution of a Deleted
Mortgage Loan that is a WMMSC Serviced Mortgage Loan or the repurchase of a
Mortgage Loan that is a WMMSC Serviced Mortgage Loan by a Seller shall be
subject to, and shall in no way adversely affect, the right of WMMSC to
continue servicing and collecting its Servicing Fee for such Deleted Mortgage
Loan or Mortgage Loan as, applicable.
SECTION 2.04 Representations and Warranties of the Depositor
as to the Mortgage Loans.
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.
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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 related Seller delivers to the Trustee and the
Trust Administrator an Opinion of Counsel, which Opinion of Counsel shall not
be at the expense of any of the Trustee, the Trust Administrator or the Trust
Fund, addressed to the Trustee and the Trust Administrator, 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 the REMIC hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
SECTION 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the
Mortgage Loans together with the assignment to it of all other assets included
in the Trust Fund, receipt of which is hereby acknowledged. Concurrently with
such assignment and delivery and in exchange therefor, the Trust
Administrator, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed the Certificates and caused them to be
authenticated and delivered to or upon the order of the Depositor in
authorized denominations which evidence ownership of the Trust Fund. The
rights of the Holders of such Certificates to receive distributions from the
Trust Fund and all ownership interests of the Holders of the Certificates in
such distributions shall be as set forth in this Agreement.
SECTION 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trust
Administrator to treat the Trust Fund as three separate REMICs (the "REMIC")
under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return (x)
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued and (y) for the taxable year ending on the last day of
the calendar year in which Certificates are first sold to a third party. The
Closing Date is hereby designated as the "startup day" of each REMIC created
hereunder within the meaning of Section 860G(a)(9) of the Code. The "regular
interests" (within the meaning of Section 860G of the Code) in the Master
REMIC shall consist of the Regular Certificates (including any rights
attributed to the Class II-X Certificates through the Class II-X Regular
Interest and the Class II-A-S Regular Interest, but excluding any rights to
Basis Risk Shortfall) and the "Class AR Certificates shall represent the
beneficial ownership of the "residual interest" in each REMIC created
hereunder. Neither the Depositor nor the Trust Administrator nor the Trustee
shall permit the creation of any "interests" (within the meaning of Section
860G of the Code) in any REMIC other than the Certificates.
(b) The Trust Administrator on behalf of the Holders of the
Class AR Certificates, shall act as agent for the Class AR Certificateholder
as the "tax matters person" (within the meaning of the REMIC Provisions) for
each REMIC, in the manner provided under Treasury
52
regulations section 1.860F-4(d) and temporary Treasury regulations section
301.6231(a)(7)-1T. By its acceptance of a Class AR Certificate, each Holder
thereof shall have agreed to such appointment and shall have consented to the
appointment of the Trust Administrator as its agent to act on behalf of each
REMIC pursuant to the specific duties outlined herein.
(c) A Holder of the Class AR Certificates, by the purchase
of such Certificates, shall be deemed to have agreed to timely pay, upon
demand by the Trust Administrator, the amount of any minimum California state
franchise taxes due with respect to each REMIC created hereunder under
Sections 23151(a) and 23153(a) of the California Revenue and Taxation Code.
Notwithstanding the foregoing, the Trust Administrator shall be authorized to
retain the amount of such tax from amounts otherwise distributable to such
Holder in the event such Holder does not promptly pay such amount upon demand
by the Trust Administrator. In the event that any other federal, state or
local tax is imposed, including without limitation taxes imposed on a
"prohibited transaction" of a REMIC as defined in Section 860F of the Code,
such tax shall be charged against amounts otherwise available for distribution
to the applicable Holder of a Class AR Certificate and then against amounts
otherwise available for distribution to the Holders of Regular Certificates in
accordance with the provisions set forth in Section 4.01. The Trust
Administrator or the Trustee shall promptly deposit in the Certificate Account
any amount of "prohibited transaction" tax that results from a breach of the
Trust Administrator's or the Trustee's duties, respectively, under this
Agreement. The Master Servicer or the related Servicer shall promptly deposit
in the Certificate Account any amount of "prohibited transaction" tax that
results from a breach of the Master Servicer's or such Servicer's duties,
respectively, under this Agreement.
(d) The Trust Administrator shall act as attorney-in-fact
and as agent on behalf of the tax matters person of each REMIC created
hereunder and in such capacity the Trust Administrator shall: (i) prepare,
sign and file, or cause to be prepared, signed and filed, federal and state
tax returns using a calendar year as the taxable year for each REMIC created
hereunder when and as required by the REMIC Provisions and other applicable
federal income tax laws as the direct representative of each such REMIC in
compliance with the Code and shall provide copies of such returns as required
by the Code; (ii) make an election, on behalf of each REMIC created hereunder,
to be treated as a REMIC on the federal tax return of such REMIC for its first
taxable year, in accordance with the REMIC Provisions; and (iii) prepare and
forward, or cause to be prepared and forwarded, to the Certificateholders and
to any governmental taxing authority all information reports as and when
required to be provided to them in accordance with the REMIC Provisions. The
expenses of preparing and filing such returns shall be borne by the Trust
Administrator. The Depositor, the Master Servicer and the related Servicer
shall provide on a prompt and timely basis to the Trust Administrator or its
designee such information with respect to each REMIC created hereunder as is
in their possession and reasonably required or requested by the Trust
Administrator to enable it to perform its obligations under this subsection.
In its capacity as attorney-in-fact and as agent on behalf
of the tax matters person, the Trust Administrator shall also: (A) act on
behalf of each REMIC created hereunder in relation to any tax matter or
controversy involving the Trust Fund, (B) represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto and (C) cause to be
paid solely from the
53
sources provided herein the amount of any taxes imposed on each REMIC created
hereunder when and as the same shall be due and payable (but such obligation
shall not prevent the Trust Administrator or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trust Administrator from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings).
(e) The Trust Administrator shall provide (i) to any
transferor of a Class AR Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class AR Certificate to
any Person who is not a permitted transferee, (ii) to the Certificateholders
such information or reports as are required by the Code or the REMIC
Provisions including reports relating to interest, original issue discount and
market discount or premium and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each REMIC created hereunder.
(f) The Trustee, to the extent directed by the Trust
Administrator, the Depositor and the Holder of the Class AR Certificates shall
take any action or cause the Trust Fund to take any action necessary to create
or maintain the status of each REMIC created hereunder as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee, to the extent directed by the Trust
Administrator, nor the Holder of the Class AR Certificates shall take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause the Trust Fund to take) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of each
REMIC created hereunder as a REMIC or (ii) result in the imposition of a tax
upon a REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee and the Trust Administrator have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax.
The Trustee and the Trust Administrator shall not take or
fail to take any action (whether or not authorized hereunder) as to which the
Master Servicer, a Servicer or the Depositor has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any
action with respect to a REMIC or their assets, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Trustee and the Trust Administrator will consult with
the Master Servicer, the Servicers and the Depositor or their designees, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder and the Trustee and
the Trust Administrator shall not take any such action or cause that REMIC to
take any such action as to which the Master Servicer, any Servicer or the
Depositor has advised it in writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to any
REMIC created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR
54
Certificates will consult with the Trust Administrator or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder, and no such Person
shall take any action or cause the Trust Fund to take any such action as to
which the Trustee or the Trust Administrator has advised it in writing that an
Adverse REMIC Event could occur. The Trustee and the Trust Administrator may
consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trust
Administrator will to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of the REMICs as "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of
the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder, as defined in Section 860F(a)(2)
of the Code, on "net income from foreclosure property" of such REMIC, as
defined in Section 860G(c) of the Code, on any contributions to a REMIC after
the Startup Day therefor pursuant to Section 860G(d) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to the related Servicer, if such Servicer
has in its sole discretion determined to indemnify the Trust Fund against such
tax or if such tax arises out of or results from a breach of such Servicer's
duties under (x) Section 2.07(j) of this Agreement to not enter into any
arrangement by which a REMIC would receive a fee or other compensation for
services or to permit such REMIC to receive any income from assets other than
"qualified mortgages" or "permitted investments", (y) Section 3.01 of this
Agreement to not make or any modification, waiver or amendment of any Mortgage
Loan which would cause any REMIC created hereunder to fail to qualify as a
REMIC or result in the imposition of any tax under Section 860F(a) or Section
860G(d) of the Code or (z) Section 3.11(c) of this Agreement to not cause any
REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code or to subject any REMIC created 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 of
otherwise, (ii) to the Master Servicer, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under this
Agreement or if the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (iii) to the Trust Administrator,
if such tax arises out of or results from a breach by the Trust Administrator
of any of its obligations under this Article II, (iv) to the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article II, or (v) otherwise against amounts on deposit
in the Collection Account as provided by Section 3.08 and on the Distribution
Date(s) following such reimbursement the aggregate of such taxes shall be
allocated in reduction of the Interest Distribution Amount on each Class
entitled thereto in the same manner as if such taxes constituted a Prepayment
Interest Shortfall.
In accordance with Section 2.07(c), the related Servicer,
the Master Servicer, the Trust Administrator or the Trustee, as applicable,
shall promptly deposit in the Certificate Account any amount of such tax.
55
For purposes of this Section 2.07(g), a tax is imposed
following the final and unappealable determination under the Code of the
amount of such tax and written notice thereof by the Tax Matters Person to the
party to be charged.
The failure of the related Servicer to promptly deposit in
the Certificate Account any amount of such tax shall be an Event of Default,
as provided in Section 8.01(b). However, in the case of WMMSC, the prompt
deposit of any such amount in the Certificate Account shall cure any Special
Event of Default unless notice of such Special Event of Default is accompanied
by an Opinion of Counsel, at the expense of WMMSC, to the effect that the
cumulative effect of WMMSC's breach or breaches, notwithstanding the deposit
of the amounts of any such tax, shall have given rise to a substantial risk
that any REMIC created hereunder would fail to continue to qualify as a REMIC.
(h) The Trust Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the Startup Day, none of any Servicer, the
Trustee or the Trust Administrator shall accept any contributions of assets to
any REMIC created hereunder unless (subject to Section 2.05) such Servicer,
the Trustee or the Trust Administrator shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in a REMIC will not cause that REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding, or subject that REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(j) None of any Servicer, the Trustee or the Trust
Administrator shall (subject to Section 2.05) enter into any arrangement by
which a REMIC will receive a fee or other compensation for services nor permit
such REMIC to receive any income from assets other than "qualified mortgages"
as defined in Section 860G(a)(3) of the Code or "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trust
Administrator shall prepare and file with the Internal Revenue Service Form
8811, "Information Return for Real Estate Mortgage Investment Conduits (REMIC)
and Issuers of Collateralized Debt Obligations" for each REMIC.
(l) None of the Trustee, the Trust Administrator, the Master
Servicer or any Servicer shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition
or sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii)
the bankruptcy of any REMIC created hereunder, (iii) the termination of any
REMIC created hereunder pursuant to Article X of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement)
nor acquire any assets for a REMIC, nor sell or dispose of any investments in
the Collection Account or the Certificate Account for gain nor accept any
contributions to a REMIC after the Closing Date (a) unless it
56
has received an Opinion of Counsel that such sale, disposition, substitution
or acquisition will not affect adversely the status of any REMIC created
hereunder as a REMIC or (b) unless the Master Servicer or such Servicer has
determined in its sole discretion to indemnify the Trust Fund against such
tax.
(m) In order to enable the Trustee and the Trust
Administrator to perform their duties as set forth herein, the Depositor shall
provide, or cause to be provided to the Trustee and the Trust Administrator,
within ten days after the Closing Date, all information or data that the
Trustee and the Trust Administrator determine 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 and the Trustee and the Trust
Administrator shall be entitled to rely upon any and all such information and
data in the performance of its duties set forth herein. Thereafter, the Master
Servicer shall provide, promptly upon request therefor, any such additional
information or data that the Trustee or the Trust Administrator may from time
to time reasonably request in order to enable the Trustee and the Trust
Administrator to perform their duties as set forth herein and the Trustee and
the Trust Administrator shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein. DLJMC
shall indemnify the Trustee and the Trust Administrator and hold its harmless
for any loss, liability, damage, claim or expense of the Trustee and the Trust
Administrator arising from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee and the
Trust Administrator on a timely basis. The Master Servicer shall indemnify the
Trustee and the Trust Administrator and hold it harmless for any loss,
liability, damage, claim or expense of the Trustee and the Trust Administrator
arising from any failure of the Master Servicer to provide, or to cause to be
provided, accurate information or data required to be provided by the Master
Servicer to the Trustee and the Trust Administrator on a timely basis;
provided, however, that (i) if any Servicer (other than WMMSC) shall fail to
provide such information to the Master Servicer upon timely request for such
information by the Master Servicer, that Servicer shall indemnify the Master
Servicer, the Trustee and the Trust Administrator and hold it harmless for any
loss, liability, damage, claim or expense of the Master Servicer, the Trustee
and the Trust Administrator arising from any failure of that Servicer to
provide, or to cause to be provided, the information referred to above on a
timely basis and (ii) if WMMSC shall fail to provide such information to the
Master Servicer upon timely request for such information by the Master
Servicer, WMMSC shall indemnify the Master Servicer and hold it harmless for
any loss, liability, damage, claim or expense of the Master Servicer arising
from any failure of WMMSC to provide, or to cause to be provided, the
information referred to above on a timely basis. The indemnification
provisions hereunder shall survive the termination of this Agreement and shall
extend to any co-trustee and co-trust administrator appointed pursuant to this
Agreement.
(n) The Trust Administrator shall treat the Basis Risk
Reserve Fund as an outside reserve fund within the meaning of Treasury
Regulation 1.860G-2(h) that is owned by the Class II-X Certificateholders and
that is not an asset of the REMIC. The Trust Administrator shall account for
the rights of the Class II-A-1, Class II-A-2, Class II-M-1, Class II-M-2 and
Class II-B Certificateholders to receive payments from the Basis Risk Reserve
Fund as rights in an interest rate cap contract written by the Class II-X
Certificateholders in favor of the Class II-A-1, Class II-A-2, Class II-M-1,
Class II-M-2 and Class II-B Certificateholders and not as an
57
obligation of the Master REMIC, whose obligation to pay such Certificates will
be subject to a cap equal to the Net Funds Cap and shall account for such
rights as property held separate and apart from the regular interests as
required by Treasury regulation section 1.860G-2(i). Thus each Class II-A-1,
Class II-A-2, Class II-M-1, Class II-M-2 and Class II-B Certificate shall be
treated as representing ownership of not only Master REMIC regular interests,
but also ownership of an interest in an interest rate cap contract. Each Class
II-X Certificate shall represent an obligation under an interest rate cap
contract. For purposes of determining the issue price of Master REMIC regular
interests, the Trust Administrator shall assume that the interest rate cap
contract has a value of $5,000.
SECTION 2.08 Covenants of the Master Servicer and each
Servicer.
The Master Servicer and each Servicer, severally and not
jointly, hereby covenants to the Depositor, the Trustee and the Trust
Administrator as follows:
(a) Such Servicer or the Master Servicer shall comply in the
performance of its obligations under this Agreement with all reasonable rules
and requirements of the insurer under each Mortgage Guaranty Insurance Policy;
and
(b) No written information, certificate of an officer,
statement furnished in writing or written report delivered to the Depositor,
any affiliate of the Depositor, the Trustee or the Trust Administrator and
prepared by the Master Servicer or such 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 Master Servicer and Servicers to Service
Mortgage Loans.
For and on behalf of the Certificateholders, as independent
contractors of the Trustee, the Master Servicer and each Servicer, severally
and not jointly, shall service and administer the Mortgage Loans in accordance
with the terms of this Agreement and with Accepted Servicing Practices. The
obligations of each of GreenPoint, Olympus and WMMSC hereunder to service and
administer the Mortgage Loans shall be limited to the GreenPoint Serviced
Mortgage Loans, the Olympus Serviced Mortgage Loans and the WMMSC Serviced
Mortgage Loans, respectively; and with respect to the duties and obligations
of each Servicer, references herein to related "Mortgage Loans" shall be
limited to the GreenPoint Serviced Mortgage Loans (and the related proceeds
thereof and related REO Properties), in the case of GreenPoint, the Olympus
Serviced Mortgage Loans (and the related proceeds thereof and related REO
Properties) in the case of Olympus, and the WMMSC Serviced Mortgage Loans (and
the related proceeds thereof and related REO Properties) in the case of WMMSC;
and in no event shall any Servicer have any responsibility or liability with
respect to any of the other Mortgage Loans. In connection with such servicing
and administration, the Master Servicer and each 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 neither the Master Servicer nor a Servicer shall
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, the Trust Administrator or the
Certificateholders under this Agreement. The Master Servicer and each 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, and shall not make
or permit any modification, waiver or amendment of any Mortgage Loan which
would cause any REMIC created hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer and each Servicer, in its own name or in the name of the Depositor
and the Trustee, is hereby authorized and empowered by the Depositor, the
Trustee and the Trust Administrator, when the Master Servicer or such Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Trust Administrator, 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
59
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer and each Servicer shall
prepare and deliver to the Depositor and/or the Trustee and/or the Trust
Administrator such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable the Master Servicer or
such Servicer to service and administer the Mortgage Loans to the extent that
the Master Servicer or such Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee or the Trust Administrator shall
execute such documents and deliver them to the Master Servicer or such Servicer.
In accordance with the standards of the preceding paragraph
and unless determined in good faith to be a Nonrecoverable Advance, the Master
Servicer and each 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 constitute Servicing Advances and
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 Master Servicer or a 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.
The Master Servicer and each Servicer hereby acknowledges
that, to the extent the Master Servicer or such Servicer has previously
serviced some or all of the Mortgage Loans pursuant to another servicing
agreement, the provisions contained in this Agreement shall supersede the
provisions contained in such other servicing agreement from and after the
Closing Date.
Notwithstanding anything in this Agreement to the contrary,
the purchase of any WMMSC Serviced Mortgage Loan by any Person shall be
subject to the rights of WMMSC to continue servicing such WMMSC Serviced
Mortgage Loan for the same Servicing Fee substantially in accordance with the
terms of this Agreement.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer
on behalf of the Master Servicer or 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 Master
Servicer and each 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 Master Servicer or such
Servicer of the Subservicer shall not release the Master Servicer or such
Servicer from any of its obligations hereunder and the Master Servicer or such
Servicer shall remain responsible hereunder for all acts and omissions of the
Subservicer as fully as if such acts and omissions were those of such
60
Servicer. The Master Servicer and each Servicer shall pay all fees and
expenses of any Subservicer engaged by the Master Servicer or such Servicer
from its own funds.
Notwithstanding the foregoing, the Master Servicer and each
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 Master Servicer's or such 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 Master
Servicer or a Servicer of any such Outsourcer shall not release the Master
Servicer or the related Servicer from any of its obligations hereunder and the
Master Servicer or such Servicer shall remain responsible hereunder for all
acts and omissions of such Outsourcer as fully as if such acts and omissions
were those of such Servicer, and the Master Servicer or such Servicer shall
pay all fees and expenses of the Outsourcer from such Servicer's own funds.
(b) At the cost and expense of the Master Servicer or a
Servicer, without any right of reimbursement from the Depositor, the Trustee,
the Trust Administrator or the applicable Collection Account, the Master
Servicer or such 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 Master Servicer or
such Servicer, at the Master Servicer's or such Servicer's option, from
electing to service the related Mortgage Loans itself. In the event that the
Master Servicer or a Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 8.01, and if requested to do so
by the Trustee or Trust Administrator, the Master Servicer or such Servicer
shall, at its own cost and expense terminate the rights and responsibilities
of its Subservicer as soon as is reasonably possible. The Master Servicer and
each Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of its Subservicer from such
Servicer's own funds without any right of reimbursement from the Depositor,
Trustee, Trust Administrator, or the applicable Collection Account.
(c) Notwithstanding any of the provisions of this Agreement
relating to agreements or arrangements between the Master Servicer or a
Servicer and its Subservicer, the Master Servicer or a Servicer and its
Outsourcer, or any reference herein to actions taken through the Subservicer,
the Outsourcer, or otherwise, neither the Master Servicer nor the related
Servicer shall be relieved of its obligations to the Depositor, Trustee, the
Trust Administrator 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 Master Servicer and each
Servicer shall be entitled to enter into an agreement with its Subservicer and
Outsourcer for indemnification of the Master Servicer or such 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 Master Servicer or a
Servicer shall be deemed to have received any collections, recoveries or
payments with respect to the related
61
Mortgage Loans that are received by a related Subservicer regardless of
whether such payments are remitted by the Subservicer to the Master Servicer or
such Servicer.
Any Subservicing Agreement and any other transactions or
services relating to the Mortgage Loans involving a Subservicer shall be
deemed to be between the Subservicer, and the Master Servicer or the related
Servicer alone, and the Depositor, the Trustee, the Trust Administrator and
the other Servicers and the Special Servicer shall have no obligations, duties
or liabilities with respect to a Subservicer including no obligation, duty or
liability of the Depositor, Trustee, the Trust Administrator, the Special
Servicer or other Servicers to pay a Subservicer's fees and expenses.
SECTION 3.03 Notification of Adjustments.
With respect to each Mortgage Loan, the Master Servicer or
the related Servicer shall adjust the Mortgage Rate on the related Adjustment
Date in compliance with the requirements of applicable law and the related
Mortgage and Mortgage Note. The Master Servicer or the related Servicer shall
execute and deliver any and all necessary notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Rate adjustments. Upon the discovery by the Master Servicer or the
related Servicer or the receipt of notice from the Trust Administrator that
the Master Servicer or such Servicer has failed to adjust a Mortgage Rate in
accordance with the terms of the related Mortgage Note, the Master Servicer or
such Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any interest loss or deferral caused the Trust
Administrator thereby.
SECTION 3.04 Trust Administrator to Act as Master Servicer
or Servicer.
In the event that (A) the Master Servicer shall for any
reason no longer be Master Servicer hereunder or (B) any Servicer shall for
any reason no longer be a Servicer hereunder and the Master Servicer shall for
any reason no longer be Master Servicer hereunder (including, in each case, by
reason of an Event of Default), the Trust Administrator or its successor shall
thereupon assume all of the rights and obligations of the Master Servicer or
such Servicer hereunder arising thereafter (except that the Trust
Administrator shall not be (i) liable for losses of the Master Servicer or
such Servicer pursuant to Section 3.09 hereof or any acts or omissions of the
related predecessor the Master Servicer or such Servicer hereunder, (ii)
obligated to make Advances if it is prohibited from doing so by applicable
law, (iii) obligated to effectuate repurchases or substitutions of Mortgage
Loans hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or (iv) deemed to have
made any representations and warranties of the Master Servicer or such
Servicer hereunder). Any such assumption shall be subject to Section 8.02
hereof.
The Master Servicer and each Servicer shall, upon request of
the Trust Administrator, but at the expense of the Master Servicer or such
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 Master
Servicer or such Servicer and an accounting of amounts collected or held by it
and
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otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreement or 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 Master Servicer and each
Servicer shall proceed in accordance with Accepted Servicing Practices 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 the terms and provisions of any related Mortgage Guaranty Insurance Policy
and shall take special care with respect to Mortgage Loans for which the
Master Servicer or a Servicer collects escrow 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
foregoing, in connection with Mortgage Loans which it is directly servicing,
the Master Servicer or each Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the Due Dates for payments
due on a Mortgage Note for a period not greater than 180 days; provided,
however, that neither the Master Servicer nor such Servicer can extend the
maturity of any such Mortgage Loan past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-off Date. In the event
of any such arrangement, the Master Servicer or the related Servicer shall
make Advances on the related Mortgage Loan in accordance with the provisions
of Section 5.01 during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements. Neither the Master Servicer nor any Servicer
shall 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.
(b) The Master Servicer and each 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 "[Master] Servicer's name], in trust for the Holders
of Credit Suisse First Boston Mortgage Securities Corp., Mortgage-Backed
Pass-Through Certificates, Series 2002-AR2" or, if established and maintained
by a Subservicer on behalf of the Master Servicer or a 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. In the event that a
Subservicer employs a subservicer, the Collection Account shall be titled
"[name of Subservicer's subservicer], in trust for [Subservicer's name]." Each
Collection Account shall be an Eligible Account acceptable to the Depositor,
the Trust Administrator and Trustee. Funds deposited in a Collection Account
may be
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drawn on by the Master Servicer or the related Servicer in accordance
with Section 3.08. Any funds deposited in a Collection Account (other than an
account established by WMMSC) shall either be invested in Eligible Investments
or at all times be fully insured to the full extent permitted under applicable
law. The creation of any Collection Account (other than an account established
by WMMSC) shall be evidenced by a certification in the form of Exhibit R-1
hereto, in the case of an account established with such Master Servicer or
Servicer, or by a letter agreement in the form of Exhibit R-2 hereto, in the
case of an account held by a depository other than the related Master Servicer
or Servicer. A copy of such certification or letter agreement shall be
furnished to the Depositor and Trustee. Notwithstanding the foregoing, one of
the Collection Accounts established by WMMSC shall be an Investment Account.
(c) The Master Servicer and each Servicer shall deposit in
the applicable Collection Account on a daily basis, unless otherwise
indicated, and retain therein, the following collections remitted by
Subservicers or payments received by the Master Servicer or such Servicer and
payments made by the Master Servicer or such Servicer subsequent to the
Cut-off Date, other than payments of principal and interest due on or before
the Cut-off Date:
(i) all payments on account of principal on the related
Mortgage Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related
Mortgage Loans adjusted to the per annum rate equal to the Mortgage
Rate reduced by the sum of the related Expense Fee Rate, as
applicable;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
(iv) all Insurance Proceeds on the related 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 Master Servicer or such
Servicer pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection
Account pursuant to Section 3.08(a)(viii) each month, the applicable
amount of Compensating Interest Payment for the Master Servicer or
such Servicer (or if such Servicer defaults in such obligation, the
Master Servicer) for the related Prepayment Period. The aggregate of
such deposits shall be made from the Master Servicer's or such
Servicer's own funds, without reimbursement therefor.
(vii) any amounts required to be deposited by the Master
Servicer or such 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.
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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 Master Servicer or such Servicer into such Collection
Account. In addition, notwithstanding the provisions of this Section 3.05, the
Master Servicer and each Servicer may deduct from amounts received by it,
prior to deposit to the applicable Collection Account, any portion of any
Scheduled Payment representing the Master Servicing Fee or the applicable
Servicing Fee. In the event that the Master Servicer or a 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 Master Servicer and each 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(a).
(d) On or prior to the Closing Date, the Trust Administrator
shall establish and maintain, on behalf of the Certificateholders, the
Certificate Account. The Trust Administrator shall, promptly upon receipt,
deposit in the Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Master
Servicer to the Trust Administrator pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trust Administrator
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 Master Servicer shall remit to the
Trust Administrator any amount not required to be remitted, it may at any time
direct the Trust Administrator 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 Trust
Administrator which describes the amounts deposited in error in the
Certificate Account. All funds deposited in the Certificate Account shall be
held by the Trust Administrator 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 Trust Administrator incur liability for
withdrawals from the Certificate Account at the direction of the Master
Servicer.
(e) 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
Master Servicer or the related Servicer or the Trust Administrator,
respectively, in Eligible Investments, which shall mature not later than (i)
in the case of a Collection Account, the Cash Remittance Date, and (ii) in the
case of the Certificate Account, the Business Day immediately preceding the
Distribution Date, or on the Distribution Date, with
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respect to Eligible Investments invested with an affiliate of the Trust
Administrator, 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 Master Servicer or the related 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
Master Servicer or the related Servicer in the related Collection Account.
Neither the Trustee nor the Trust Administrator shall 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 and made in accordance with this Section
3.05. 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
Trust Administrator 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 Trust Administrator in the Certificate Account.
(f) The Master Servicer and each Servicer shall give notice
to the Trustee, the Trust Administrator, each related Seller, each Rating
Agency, and the Depositor of any proposed change of the location of the
related Collection Account prior to any change thereof. The Trust
Administrator shall give notice to the Master Servicer and each Servicer, each
Seller, each Rating Agency, the Trustee and the Depositor of any proposed
change of the location of the Certificate Account prior to any change thereof.
SECTION 3.06 Establishment of and Deposits to Escrow
Accounts; Permitted Withdrawals from Escrow
Accounts; Payments of Taxes, Insurance and
Other Charges.
(a) To the extent required by the related Mortgage Note and
not violative of applicable 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, in the case of Servicers
other than Olympus, "Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2", in the case of
Olympus, "Olympus Servicing, L.P., as Trustee for Credit Suisse First Boston
Mortgage Securities Corp. Mortgage-Backed Pass-Through Certificates, Series
2002-AR2" or, if established and maintained by a Subservicer on behalf of the
Master Servicer or a 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. In
the event that a Subservicer employs a subservicer, the Escrow Accounts shall
be titled "[name of Subservicer's subservicer] in trust for [Subservicer's
name]. The Escrow Accounts shall be Eligible Accounts. Funds deposited in the
Escrow Account may be drawn on by the Master Servicer or the related Servicer
in accordance with Section 3.06(d). Except with respect to WMMSC, the creation
of any Escrow Account shall be evidenced by a certification in the form of
Exhibit Q-1 hereto, in the case of an account established with the Master
Servicer or a Servicer, or by a letter agreement in the form of Exhibit Q-2
hereto, in the
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case of an account held by a depository other than the Master
Servicer or a Servicer. A copy of such certification shall be furnished to the
Depositor, the Trust Administrator and the Trustee.
(b) Each Servicer shall deposit or cause to be deposited in
its Escrow Account or Accounts on a daily basis within two Business Days 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.
(c) Each 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). Each 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.
(d) Withdrawals from the Escrow Account or Accounts may be
made or caused to 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 Master Servicer or such
Servicer for any Servicing Advances made by the Master Servicer or
such Servicer with respect to a related Mortgage Loan, but only from
amounts 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 related Servicer, or any
Mortgagor to the extent required by law, any interest paid on the
funds deposited in such Escrow Account; and
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(vii) to clear and terminate such Escrow Account
on the termination of this Agreement.
(e) With respect to each Mortgage Loan, the applicable
Servicer shall maintain accurate records reflecting the status of ground rents
and taxes and any other item which may become a lien senior to the lien of the
related Mortgage and the status of Mortgage Guaranty Insurance Policy
premiums, and fire and hazard insurance coverage and shall obtain, from time
to time, all bills for the payment of such charges (including renewal
premiums) and shall effect or cause to be effected payment thereof prior to
the applicable penalty or termination date.
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) The Master Servicer and each Servicer shall afford the
Depositor, the Trustee and the Trust Administrator 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 written request
and during normal business hours at the office designated by the Master
Servicer or such Servicer. In addition, each Servicer shall afford the Master
Servicer 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 written request and during normal business hours at the
office designated by such Servicer. In addition, each Servicer shall provide
to the Special Servicer reasonable access to all records and documentation
regarding the Mortgage Loans serviced by it that become Special Serviced
Mortgage Loans.
(b) The Master Servicer and each Servicer, separately with
respect to the Mortgage Loans each services, shall inspect the related
Mortgaged Properties as often as deemed necessary by the Master Servicer or
such Servicer in such party'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 Master Servicer or such Servicer, as
applicable, shall conduct subsequent inspections in accordance with Accepted
Servicing Practices or as may be required by the primary mortgage guaranty
insurer. The Master Servicer and each Servicer shall keep a written or
electronic report of each such inspection.
SECTION 3.08 Permitted Withdrawals from the Collection
Accounts and Certificate Account.
(a) The Master Servicer and each Servicer may from time to
time make withdrawals from the related Collection Account for the following
purposes:
(i) to pay to the Master Servicer or such Servicer (to the
extent not previously retained by the Master Servicer or such
Servicer) the servicing compensation to which it is entitled pursuant
to Section 3.14, and to pay to the Master Servicer or such 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 Master Servicer or such 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 Master Servicer or such Servicer);
(iii) to reimburse the Master Servicer or such Servicer for
any Nonrecoverable Advance previously made or any amount expended
pursuant to Section 3.11(a);
(iv) to reimburse the Master Servicer or such Servicer for
(A) unreimbursed Servicing Advances, the Master Servicer's or such
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 Master Servicing
Fees or 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 make any payments required to be made pursuant to
Section 2.07(g);
(vii) to withdraw any amount deposited in such Collection
Account and not required to be deposited therein;
(viii) on the Cash Remittance Date, to withdraw an amount
equal to the portion of (a) with respect to the Group I Mortgage
Loans, the Available Distribution Amount and (b) with respect to the
Group II Mortgage Loans, the Interest Remittance Amount and Principal
Remittance Amount, in each case applicable to the Mortgage Loans
serviced by such Servicer for such Distribution Date and remit such
amount to the Master Servicer who will remit the aggregate of such
amounts to the Trust Administrator for deposit in the Certificate
Account;
(ix) with respect to each Mortgage Loan covered by a lender
paid Mortgage Guarantee Insurance Policy, to effect timely payment of
the premiums on such Mortgage Guarantee Insurance Policy pursuant to
Section 3.09(c); provided, however, that such premiums have been
received on such Mortgage Loans; and
(x) to clear and terminate such Collection Account upon
termination of this Agreement pursuant to Section 11.01 hereof.
The Master Servicer and each Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any withdrawal from the related Collection Account
pursuant to such subclauses (i), (ii), (iv) and (v). Prior to making any
withdrawal from a Collection Account pursuant to subclause (iii) of a
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Nonrecoverable Advance, the Master Servicer or the related Servicer shall
deliver to the Trust Administrator a certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing Advance determined
by the Master Servicer or such Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of
such Nonrecoverable Advance.
(b) The Trust Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders, in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn,
the amount of any taxes that it is authorized to withhold pursuant to Section
2.07). In addition, the Trust Administrator may from time to time make
withdrawals from the Certificate Account for the following purposes:
(i) to pay to itself the Trust Administrator Fees to which
it is entitled pursuant to Section 10.05, and to pay to itself any
investment income earned for the related Distribution Date;
(ii) to withdraw and return to the Master Servicer or the
applicable Servicer for deposit to the applicable 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 the Agreement pursuant to Section 11.01 hereof.
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage
Impairment Insurance and Mortgage Guaranty
Insurance Policy; Claims;
Restoration of Mortgaged Property.
(a) The Master Servicer and each Servicer shall cause to be
maintained for each Mortgage Loan hazard insurance such that all buildings
upon the Mortgaged Property are insured by a generally acceptable insurer
rated either: "V" or better in the current Best's Key Rating Guide ("Best's")
or acceptable to FNMA or FHLMC against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) the replacement 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 a
co-insurer.
If upon origination of the Mortgage Loan, the related
Mortgaged Property was located in an area identified in the Federal Register
by the Flood Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available), the Master Servicer or the
related Servicer shall cause a flood insurance policy to be maintained with
respect to such Mortgage Loan. Such policy shall meet the requirements of the
current guidelines of the Federal Insurance Administration and be in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid principal balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
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and (ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project,
the Master Servicer or the related Servicer shall verify that the coverage
required of the owner's association, including hazard, flood, liability, and
fidelity coverage, is being maintained in accordance with the requirements of
the Master Servicer or the Servicer for mortgage loans that it services on its
own account.
The Master Servicer and each Servicer shall cause to be
maintained on each Mortgaged Property such other additional special hazard
insurance as may be required pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional
insurance, or pursuant to the requirements of any Mortgage Guaranty Insurance
Policy insurer, or as may be required to conform with Accepted Servicing
Practices to the extent permitted by the Mortgage Note, the Mortgage or
applicable law provided that the Master Servicer or the Servicer shall not be
required to bear the cost of such insurance.
All policies required hereunder shall name the Master
Servicer or the related Servicer as loss payee and shall be endorsed with
standard or union mortgagee clauses, without contribution, which shall provide
for prior written notice of any cancellation, reduction in amount or material
change in coverage.
A Servicer shall not interfere with the Mortgagor's freedom
of choice at the origination of such Mortgage Loan in selecting either his
insurance carrier or agent, provided, however, that the Master Servicer or
such Servicer shall not accept any such insurance policies from insurance
companies unless such companies are rated: B:III or better in Best's or
acceptable to FNMA or FHLMC and are licensed to do business in the
jurisdiction in which the Mortgaged Property is located. The Master Servicer
or the related Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 3.05, any amounts collected by the
Master Servicer or a 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
such Servicer's normal servicing procedures) shall be deposited in the related
Collection Account (subject to withdrawal pursuant to Section 3.08(a)).
Any cost incurred by the Master Servicer or a Servicer in
maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trust
Administrator for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so permit.
Such costs shall constitute a Servicing Advance and will be reimbursable to
the Master Servicer or the Servicer to the extent permitted by Section 3.08
hereof. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor or maintained on
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property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) In the event that the Master Servicer or a 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, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Section 3.09(a) and otherwise
complies with all other requirements of Section 3.09(a), it shall conclusively
be deemed to have satisfied its obligations as set forth in Section 3.09(a).
Any amounts collected by the Master Servicer or 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(a). 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 policy
complying with Section 3.09(a), and there shall have been a loss which would
have been covered by such policy, the Master Servicer or 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 Trust Administrator, the
Master Servicer or a Servicer shall cause to be delivered to the Trust
Administrator 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 Trust
Administrator. In connection with its activities as Servicer of the related
Mortgage Loans, the Master Servicer or such Servicer agrees to present, on
behalf of itself, the Depositor, and the Trust Administrator for the benefit
of the Certificateholders, claims under any such blanket policy.
(c) With respect to each Mortgage Loan with a Loan-to-Value
Ratio in excess of 80% which the related Seller represented to be covered by a
Mortgage Guaranty Insurance Policy as of the Cut-off Date, the Master Servicer
or the related Servicer shall, without any cost to the Depositor or Trust
Administrator, maintain or cause the Mortgagor to maintain in full force and
effect a Mortgage Guaranty Insurance Policy insuring that portion of the
Mortgage Loan in excess of 75% of value, and shall pay or shall cause the
Mortgagor to pay, the premium thereon on a timely basis, until the
loan-to-value ratio of such Mortgage Loan is reduced to 80%, based on either
(i) a current appraisal of the Mortgaged Property or (ii) the appraisal of the
Mortgaged Property obtained at the time the Mortgage Loan was originated. In
the event that such Mortgage Guaranty Insurance Policy shall be terminated,
the Master Servicer or the related Servicer shall obtain from another
Qualified Insurer a comparable replacement policy, with a total coverage equal
to the remaining coverage of such terminated Mortgage Guaranty Insurance
Policy. If the insurer shall cease to be a Qualified Insurer, the Master
Servicer or the related Servicer shall determine whether recoveries under the
Mortgage Guaranty Insurance Policy are jeopardized for reasons related to the
financial condition of such insurer, it being understood that the Master
Servicer or such Servicer shall in no event have any responsibility or
liability for any failure to recover under the Mortgage Guaranty Insurance
Policy for such reason. If the Master Servicer or the related Servicer
determines that recoveries are so jeopardized, it shall notify the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Master Servicer or the related Servicer shall not take any action
which would result in noncoverage under any applicable Mortgage Guaranty
Insurance Policy of any loss which, but
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for the actions of the Master Servicer or such Servicerwould have been covered
thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 3.10, the Master
Servicer and each Servicer shall promptly notify the insurer under the related
Mortgage Guaranty Insurance Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such Mortgage Guaranty Insurance
Policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such Mortgage Guaranty
Insurance Policy provided that such required actions are in compliance with
all applicable law. If such Mortgage Guaranty Insurance Policy is terminated
as a result of such assumption or substitution of liability, the Master
Servicer or the related Servicer shall obtain a replacement Mortgage Guaranty
Insurance Policy as provided above; provided that under applicable law and the
terms of the related Mortgage Note and Mortgage the cost of such policy may be
charged to the successor Mortgagor.
With respect to each Mortgage Loan covered by a lender paid
Mortgage Guaranty Insurance Policy, the Master Servicer and the applicable
Servicer agrees to effect timely payment of the premiums on such Mortgage
Guaranty Insurance Policy from amounts on deposit in the Collection Account
with respect to such Mortgage Loan. If amounts on deposit in the Collection
Account with respect to such Mortgage Loan are not sufficient to pay the
premiums on such Mortgage Guaranty Insurance Policy, the Master Servicer and
the applicable Servicer agrees to effect timely payment of such premiums, and
such costs shall be recoverable by Master Servicer or the applicable Servicer
from the related Liquidation Proceeds or otherwise as a Servicing Advance
pursuant to Section 3.08(a). With respect to each Mortgage Loan covered by a
Mortgage Guaranty Insurance Policy that is not lender paid, the Master
Servicer and the applicable Servicer agrees to effect timely payment of the
premiums on such Mortgage Guaranty Insurance Policy, and such costs not
otherwise recoverable from the Mortgagor shall be recoverable by the Master
Servicer or such Servicer from the related Liquidation Proceeds or otherwise
as a Servicing Advance pursuant to Section 3.08(a).
(d) In connection with its activities as servicer, the
Master Servicer and each Servicer agrees to prepare and present, on behalf of
itself, the Depositor, the Trustee, the Trust Administrator and the
Certificateholders, claims to the insurer under any Mortgage Guaranty
Insurance Policy in a timely fashion in accordance with the terms of such
Mortgage Guaranty Insurance Policy and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Mortgage
Guaranty Insurance Policy respecting defaulted Mortgage Loans. Pursuant to
Section 3.05, any amounts collected by the Master Servicer or a Servicer under
any Mortgage Guaranty Insurance Policy shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.08.
(e) Neither the Master Servicer nor a Servicer need obtain
the approval of the Trustee or the Trust Administrator prior to releasing any
Insurance Proceeds to the Mortgagor to be applied to the restoration or repair
of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. At a minimum, the Master Servicer and each Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds:
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(i) the Master Servicer or such Servicer shall receive
satisfactory independent verification of completion of repairs and
issuance of any required approvals with respect thereto;
(ii) the Master Servicer or such 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 Master Servicer or
such Servicer shall place the Insurance Proceeds in the related
Escrow Account.
(f) If the Trust Administrator is named as an additional
loss payee, the Master Servicer or the related Servicer is hereby empowered to
endorse any loss draft issued in respect of such a claim in the name of the
Trustee or the Trust Administrator.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) The Master Servicer and each 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 Master Servicer or 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 Master Servicer or such
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 Mortgage Guaranty Insurance Policy, if any.
(b) If the Master Servicer or a Servicer reasonably believes
it is unable under applicable law to enforce such "due-on-sale" clause, the
Master Servicer or such Servicer shall 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
Master Servicer or such Servicer is unable under applicable law to require
that the original Mortgagor remain liable under the Mortgage Note, 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
Master Servicer or a Servicer shall not be deemed to be in default under this
Section by reason of any transfer or assumption which the Master Servicer or
such 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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(c) To the extent that any Mortgage Loan is assumable, the
Master Servicer or 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 Master Servicer or 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.
(d) Subject to each 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
Master Servicer or such 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 Master Servicer
or the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer or the related 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 Master Servicer or a
Servicer for entering into an assumption or substitution of liability
agreement will be retained by the Master Servicer or such Servicer as
additional servicing compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
(a) The Master Servicer and each 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. In connection with such
foreclosure or other conversion, the Master Servicer and each Servicer shall
take such action as (i) the Master Servicer or such 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 Master Servicer or such 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
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Insurance Policy; provided, however, that the Master Servicer or such 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. Any funds expended by the Master Servicer or any
Servicer pursuant to this Section 3.11(a) shall be reimbursable in full
pursuant to Section 3.08(a)(iii). The Master Servicer or 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 or otherwise as a Servicing Advance in accordance
with Section 3.08(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 Master Servicer or the related Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Trust Administrator
otherwise requests, an environmental inspection or review of such Mortgaged
Property conducted by a qualified inspector shall be arranged for by such
Servicer. Upon completion of the inspection, the Master Servicer or the
related Servicer shall promptly provide the Trust Administrator 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 Master Servicer or 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 and Advances made by
the Master Servicer or such 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, Advances and Servicing Advances are less than or equal to the estimated
value of the Mortgaged Property, then the Master Servicer or 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 Master Servicer or such 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 such Servicer,
the Master Servicer or such Servicer shall be entitled to be reimbursed from
amounts in the related Collection Account pursuant to Section 3.08(a) hereof.
In the event the Master Servicer or 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 Master Servicer or such Servicer shall
be reimbursed for all Advances and Servicing Advances made with respect to the
related Mortgaged Property from the related Collection Account pursuant to
Section 3.08(a) hereof, and the Master Servicer or such Servicer shall have no
further obligation to service such Mortgage Loan under the provisions of this
Agreement.
(b) With respect to any REO Property, the deed or
certificate of sale shall be taken in the name of the Trust Administrator for
the benefit of the Certificateholders, or its
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nominee, on behalf of the Certificateholders. The Trust Administrator's name
shall be placed on the title to such REO Property solely as the Trust
Administrator hereunder and not in its individual capacity. The Master
Servicer or the related Servicer shall ensure that the title to such REO
Property references this Agreement and the Trust Administrator's capacity
hereunder. Pursuant to its efforts to sell such REO Property, the Master
Servicer or 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 Master Servicer or the related
Servicer, either itself or through an agent selected by such 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. Upon request, the Master Servicer or the
related Servicer shall furnish to the Trust Administrator 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 such
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 Trust Administrator shall reasonably request and which is necessary to
enable the Trust Administrator 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 Master Servicer or 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 Trust Administrator for filing.
To the extent consistent with Accepted Servicing Practices,
the Master Servicer or the related Servicer shall also maintain on each REO
Property fire and hazard insurance with extended coverage in an 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 Master Servicer or 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 and
the Trust Administrator 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
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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 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 Master Servicer or 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 Master Servicer or 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 such Mortgage Loan.
(d) The decision of the Master Servicer or a Servicer to
foreclose on a defaulted Mortgage Loan shall be subject to a determination by
the Master Servicer or such 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
Master Servicer or such 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 Master Servicer or the related
Servicer for any related unreimbursed Servicing Advances and Servicing Fees;
second, to reimburse the Master Servicer or such 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 Master Servicer or such Servicer pursuant to Section 3.08(a)(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
78
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 Master Servicer or the related Servicer
as additional servicing compensation pursuant to Section 3.14.
(f) The Master Servicer and each Servicer of the Mortgage
Loans may (but is not obligated to) enter into a special servicing agreement
with an unaffiliated holder of a 100% Percentage Interest of the most junior
class of Subordinate Certificates, subject to each Rating Agency's
acknowledgment that the Ratings of the Certificates in effect immediately
prior to the entering into such agreement would not be qualified, downgraded
or withdrawn and the Certificates would not be placed on credit review status
(except for possible upgrading) as a result of such agreement. Any such
agreement may contain provisions whereby such Holder may (i) instruct the
Master Servicer or the related Servicer to commence or delay foreclosure
proceedings with respect to delinquent Mortgage Loans and will contain
provisions for the deposit of cash with the Master Servicer or such Servicer
by the holder that would be available for distribution to Certificateholders
if Liquidation Proceeds are less than they otherwise may have been had the
Master Servicer or such Servicer acted in accordance with its normal
procedures, (ii) purchase delinquent Mortgage Loans from the Trust Fund
immediately prior to the commencement of foreclosure proceedings at a price
equal to the aggregate outstanding Principal Balance of such Mortgage Loans
plus accrued interest thereon at the applicable Mortgage Rate through the last
day of the month in which such Mortgage Loan is purchased, and/or (iii) assume
all of the servicing rights and obligations with respect to delinquent
Mortgage Loans so long as such Holder (A) meets the requirements for a
Subservicer set forth in Section 3.02(a), (B) will service such Mortgage Loans
in accordance with this Agreement and (C) the Master Servicer or the Servicer
has the right to transfer such servicing rights without the payment of any
compensation to a subservicer.
(g) The Special Servicer, at its option, may (but is not
obligated to) purchase from the Trust Fund, (a) any Mortgage Loan that is
delinquent in payment 90 or more days 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, in each case, provided that the applicable servicer has the
right to transfer the related servicing rights without the payment of any
compensation to a subservicer. Any such purchase shall be made by the Special
Servicer with its own funds at a price equal to the Purchase Price for such
Mortgage Loan. The applicable Servicer shall be entitled to reimbursement from
the Special Servicer for all expenses incurred by it in connection with the
transfer of any Mortgage Loan to the Special Servicer pursuant to this Section
3.11(g).
SECTION 3.12 Trustee and Trust Administrator to Cooperate;
Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer or a Servicer of a notification that payment in
full will be escrowed in a manner customary for such purposes, the Master
Servicer or such Servicer will immediately notify the
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Trustee, or the Custodian on its behalf, by delivering, or causing to be
delivered a "Request for Release" substantially in the form of Exhibit L. Upon
receipt of such request, the Trustee, or the Custodian on its behalf, shall
within three Business Days release the related Mortgage File to the Master
Servicer or the related Servicer, and the Trustee shall within three Business
Days of such Servicer's direction execute and deliver to the Master Servicer
or such 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 such Servicer, together with the Mortgage
Note with written evidence of cancellation thereon. Expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the related Mortgagor. 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, or the Custodian on its
behalf within three Business Days of delivery to the Trustee, or the Custodian
on its behalf of a Request for Release in the form of Exhibit L signed by a
Servicing Officer, release the Mortgage File to the Master Servicer or the
related Servicer. Subject to the further limitations set forth below, the
Master Servicer or the related Servicer shall cause the Mortgage File or
documents so released to be returned to the Trustee, or the Custodian on its
behalf, when the need therefor by the Master Servicer or such 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 Master
Servicer or such Servicer shall deliver to the Trustee, or the Custodian on
its behalf, a Request for Release in the form of Exhibit L, signed by a
Servicing Officer.
If the Master Servicer or a Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement, the Master Servicer or such 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 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 Master Servicer or a Servicer to be Held
for the Trustee.
Notwithstanding any other provisions of this Agreement, the
Master Servicer and each Servicer shall transmit to the Trustee, or the
Custodian on its behalf, as required by this Agreement all documents and
instruments in respect of a Mortgage Loan coming into the possession of the
Master Servicer or the related Servicer from time to time required to be
delivered to the Trustee, or the Custodian on its behalf, pursuant to the
terms hereof and shall account fully to the Trust Administrator for any funds
received by the Master Servicer or such Servicer or which otherwise are
collected by the Master Servicer or such 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 Master Servicer or a
Servicer in respect of any
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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 Master Servicer or the
related Servicer for and on behalf of the Trustee or the Trust Administrator
and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Master Servicer
and each 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 or the Trust
Administrator 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 Master Servicer or such Servicer shall be
entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to the Master Servicer or such Servicer under
this Agreement.
SECTION 3.14 Master Servicing Fee and Servicing Fee.
(a) As compensation for its services hereunder, the Master
Servicer and each Servicer shall be entitled to withdraw from the applicable
Collection Account or to retain from interest payments on the related Mortgage
Loans (which have been remitted to the Master Servicer by the applicable
Servicer, in the case of the Master Servicer), the amount of the Master
Servicing Fee or its Servicing Fee, respectively, for each Mortgage Loan
serviced by it, less any amounts in respect of the Master Servicing Fee or its
Servicing Fee, as applicable, payable by the Master Servicer or such Servicer
pursuant to Section 3.05(c)(vi). The Master Servicing Fee and the Servicing
Fee are limited to, and payable solely from, the interest portion of such
Scheduled Payments collected by the Master Servicer or the related Servicer or
as otherwise provided in Section 3.08(a). In connection with the servicing of
any Special Serviced Mortgage Loan, the Special Servicer shall receive the
Servicing Fee for such Special Serviced Mortgage Loan as its compensation and
Ancillary Income with respect to Special Serviced Mortgage Loans.
(b) Additional servicing compensation in the form of
Ancillary Income shall be retained by the Master Servicer or the related
Servicer. The Master Servicer and each 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 the payment
of any premiums for insurance required pursuant to Section 3.18) and shall not
be entitled to reimbursement thereof except as specifically provided for in
this Agreement.
SECTION 3.15 Access to Certain Documentation.
The Master Servicer and each 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 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 such
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Servicer. Nothing in this Section shall limit the obligation of the Master
Servicer or any Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors and the failure of the Master Servicer
or such 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 Master Servicer or any 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 Master Servicer and each Servicer shall deliver to the
Depositor, the Rating Agencies, the Trustee and the Trust Administrator, and
each Servicer shall deliver to the Master Servicer, on or before 120 days
after the end of such Servicer's fiscal year, commencing in its 2002 fiscal
year, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer or such Servicer during the
preceding calendar year and of the performance of the Master Servicer or such
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
Master Servicer or such Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Master Servicer or such 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 each Servicer's
fiscal year, commencing in its 2002 fiscal year, the Master Servicer and each
Servicer at its expense shall cause a nationally or regionally recognized firm
of independent public accountants (who may also render other services to such
Servicer, any Seller or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trust Administrator, and the Depositor and each Servicer shall similarly
furnish such a statement to the Master Servicer to the effect that (i) with
respect to the Master Servicer and each Servicer other than WMMSC, such firm
has examined certain documents and records relating to the servicing of
mortgage loans which the Master Servicer or such 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 and (ii) with respect to
WMMSC as servicer of the WMMSC Serviced Mortgage Loans, in connection with the
firm's examination of the financial statements as of the previous December 31
of WMMSC's parent corporation (which shall include a limited examination of
WMMSC's financial statements), nothing came to their attention that indicated
that WMMSC was not in compliance with the terms of this Agreement, except for
(a) such exceptions as such firm believes to be immaterial, and (b) such other
exceptions as are set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage
loans by
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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 Master Servicer or the related
Servicer's expense, provided such statement is delivered by the Master
Servicer or such Servicer to the Trust Administrator.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
The Master Servicer and each 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 Mortgage Banker's Blanket Bond
and shall protect and insure the Master Servicer or the related Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of the Master Servicer Employees, in the case of
the Master Servicer, or such Servicer Employees, in the case of the Servicer.
Such Fidelity Bond and Errors and Omissions Insurance Policy also shall
protect and insure the Master Servicer and each 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 Master Servicer or a
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
Trust Administrator, the Master Servicer or the related Servicer shall cause
to be delivered to the Trust Administrator 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 Trust
Administrator.
SECTION 3.19 Special Serviced Mortgage Loans.
If directed by the Special Servicer and solely at the
Special Servicer's option, the Master Servicer or a Servicer other than WMMSC
(a "Transferring Servicer") shall transfer the servicing of any Mortgage Loan
serviced by the Transferring Servicer 91 days or more delinquent to the
Special Servicer. The Special Servicer shall thereupon assume all of the
rights and obligations of the Transferring Servicer hereunder arising
thereafter and the Transferring Servicer shall have no further rights or
obligations hereunder with respect to such Mortgage Loan (except that the
Special Servicer shall not be (i) liable for losses of the Transferring
Servicer pursuant to Section 3.09 hereof or for any acts or omissions of the
Transferring Servicer hereunder prior to the servicing transfer date, (ii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or (iii) deemed to have
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made any representations and warranties of a Transferring Servicer hereunder).
Upon the transfer of the servicing of any such Mortgage Loan to the Special
Servicer, the Special Servicer shall be entitled to the Servicing Fee and
other compensation accruing after the servicing transfer date with respect to
such Mortgage Loans pursuant to Section 3.14.
In connection with the transfer of the servicing of any
Mortgage Loan to the Special Servicer, the Transferring Servicer shall, at the
Special Servicer's expense, deliver to the Special Servicer all documents and
records relating to such Mortgage Loans 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 servicing to the Special Servicer. On the servicing
transfer date, the Special Servicer shall reimburse the Transferring Servicer
for all unreimbursed Advances, Servicing Advances and Servicing Fees and
Master Servicing Fees, as applicable, relating to the Mortgage Loans for which
the servicing is being transferred. The Special Servicer shall be entitled to
be reimbursed pursuant to Section 3.08 or otherwise pursuant to this Agreement
for all such Advances, Servicing Advances and Servicing Fees and Master
Servicing Fees, as applicable, paid by the Transferring Servicer pursuant to
this Section 3.19. In addition, the Special Servicer shall amend the Mortgage
Loan Schedule to reflect that such Mortgage Loans are Special Serviced
Mortgage Loans.
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ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
(I) (A) On each Distribution Date, with respect to the Group I Certificates,
the Trust Administrator shall determine the amounts to be distributed to
each Class of Certificates as follows:
(a) with respect to the Certificate Group I and the Class AR
Certificates and from the Available Distribution Amount relating to
Loan Group I:
(i) subject to paragraph (B) below, concurrently, to the Class
I-A Certificates and the Class AR Certificates, an amount
allocable to interest equal to the related Interest
Distribution Amount, any shortfall being allocated pro
rata among such Classes in proportion to the amount of the
Interest Distribution Amount that would have been
distributed in the absence of such shortfall; and
(ii) on each Distribution Date, from the Available Distribution
Amount for Loan Group I remaining after giving effect to
the distributions pursuant to clause I(A)(a)(i) above, to
the Class I-A Certificates and the Class AR Certificates,
the Group I Senior Principal Distribution Amount, in the
following order of priority:
(A) first, to the Class AR Certificates, until the
Class Principal Balance of the Class AR Certificates has
been reduced to zero;
(B) second, to the Class I-A Certificates, until the
Class Principal Balance of the Class I-A Certificates has
been reduced to zero; and
(b) from the Available Distribution Amount relating to Loan Group I,
remaining after the distributions pursuant to (a) above, to each
Class of Group I Subordinate Certificates, subject to paragraphs (B)
and (C) below, in the following order of priority:
(i) first, to the Class I-B-1 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(ii) second, to the Class I-B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-1 Certificates has been reduced to
zero;
(iii) third, to the Class I-B-2 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
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(iv) fourth, to the Class I-B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-2 Certificates has been reduced to
zero;
(v) fifth, to the Class I-B-3 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(vi) sixth, to the Class I-B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-3 Certificates has been reduced to
zero;
(vii) seventh, to the Class I-B-4 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(viii) eighth, to the Class I-B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-4 Certificates has been reduced to
zero;
(ix) ninth, to the Class I-B-5 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(x) tenth, to the Class I-B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-5 Certificates has been reduced to
zero;
(xi) eleventh, to the Class I-B-6 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(xii) twelfth, to the Class I-B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Certificate Principal
Balance of Class I-B-6 Certificates has been reduced to
zero;
(xiii) thirteenth, to the Class I-B-1, Class I-B-2, Class
I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6
Certificates, in that order, up to an amount of
unreimbursed Realized Losses previously allocated to that
Class, if any; provided, however, that any distribution
pursuant to this clause (viii) shall not result in a
further reduction of the Class Principal Balance of any fo
the Group I Subordinate Certificates; and
(xiv) fourteenth, to the Class AR Certificates, any remaining
Available Distribution Amount for Loan Group I.
(B) 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 Group I Certificates and the Group I Excess Interest
Amount shall be reduced by the Trust Administrator by, the related Class' or
Group I Excess Interest Amount's pro rata share (based on the applicable
Interest Distribution Amount for each such Class before reduction pursuant to
this Section 4.01(I)(B)(i)) of (i) Net Prepayment Interest Shortfalls for
Group I Mortgage Loans; and
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(ii) (A) after the Special Hazard Coverage Termination Date, with respect to
each Group I Mortgage Loan that became a Special Hazard Mortgage Loan during
the prior calendar month, 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, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Group I Mortgage
Loan that became subject to a Bankruptcy Loss during the prior calendar month,
the interest portion of the related Debt Service Reduction or Deficient
Valuation, (C) each Relief Act Reduction for any Group I Mortgage Loan
incurred during the prior calendar month and (D) after the Fraud Loss Coverage
Termination Date, with respect to each Group I Mortgage Loan that became a
Fraud Loan during the prior calendar month 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.
(C) With respect to each Class of Group I Subordinate
Certificates, if on any Distribution Date the related Subordination Level of
such Class is less than such percentage as of the Closing Date, no
distribution of Principal Prepayments will be made to any Class or Classes of
Group I Subordinate Certificates junior to such Class (the "Restricted
Classes") and the amount otherwise distributable to the Restricted Classes in
respect of such Principal Prepayments will be allocated among the remaining
Classes of Group I Subordinate Certificates, pro rata, based upon their
respective Class Principal Balances.
(II) With respect to the Group II Certificates:
(a) On each Distribution Date, the Trust Administrator shall
distribute the Interest Remittance Amount for such date in the following order
of priority:
(i) concurrently, to the Class II-A-1 and Class II-A-2
Certificates, pro rata, Current Interest and any Carryforward
Interest for each such Class and such Distribution Date;
(ii) to the Class II-M-1 Certificates, Current Interest for
such Class and such Distribution Date;
(iii) to the Class II-M-2 Certificates, Current Interest for
such Class and such Distribution Date;
(iv) To the Class II-B Certificates, Current Interest for such
Class and such Distribution Date; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date as provided in Section 4.01(II)(d), any Interest
Remittance Amount remaining for such Distribution Date.
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(b) On each Distribution Date (A) prior to the Stepdown Date or
(B) with respect to which a Trigger Event has occurred, the Trust
Administrator shall distribute the Principal Payment Amount for Loan Group II
for such date in the following order of priority:
(i) to the Class II-A-1 and Class II-A-2 Certificates, pro
rata, until the Class Principal Balance of each such Class has been
reduced to zero;
(ii) to the Class II-M-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(iii) to the Class II-M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(iv) to the Class II-B Certificates, until the Class Principal
Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any Principal
Payment Amount remaining after application pursuant to clauses
II(b)(i) through (iv) above.
(c) On each Distribution Date (A) on or after the Stepdown Date
and (B) with respect to which a Trigger Event has not occurred, the Trust
Administrator shall distribute the Principal Payment Amount for such date in
the following order of priority:
(i) concurrently, to the Class II-A-1 and Class II-A-2
Certificates, pro rata, the Senior Principal Payment Amount for such
Distribution Date, until the Class Principal Balance of each such
Class has been reduced to zero;
(ii) to the Class II-M-1 Certificates, the Class II-M-1
Principal Payment Amount for such Distribution Date, until the Class
Principal Balance of such Class has been reduced to zero;
(iii) to the Class II-M-2 Certificates, the Class II-M-2
Principal Payment Amount for such Distribution Date, until the Class
Principal Balance of such Class has been reduced to zero;
(iv) to the Class II-B Certificates, the Class II-B
Principal Payment Amount for such Distribution Date, until the Class
Principal Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in Section 4.01(II)(d), any
Principal Payment Amount remaining after application pursuant to
clauses II(c)(I) though (iv) above.
(d) On each Distribution Date, the Trust Administrator shall
distribute the Monthly Excess Cashflow for such date in the following order of
priority:
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(i) (A) until the aggregate Class Principal Balance of the
Group II Certificates equals the Aggregate Loan Group Balance for
such Distribution Date minus the Targeted Overcollateralization
Amount for such date, on each Distribution Date (x) prior to the
Stepdown Date or (y) with respect to which a Trigger Event has
occurred, to the extent of Monthly Excess Interest for such
Distribution Date, to the Group II Certificates, in the following
order of priority:
(a) concurrently, to the Class II-A-1 and Class II-A-2
Certificates, pro rata, until the Class Principal Balance of each
such Class has been reduced to zero;
(b) to the Class II-M-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(c) to the Class II-M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to zero; and
(d) to the Class II-B Certificates, until the Class
Principal Balance of such Class has been reduced to zero.
(B) on each Distribution Date on or after the Stepdown Date and
with respect to which a Trigger Event has not occurred, to fund any principal
distributions required to be made on such Distribution Date set forth above in
Section 4.01(II)(c) above, after giving effect to the distribution of the
Principal Payment Amount for Loan Group II for such Distribution Date, in
accordance with the priorities set forth therein;
(ii) concurrently, to the Class II-A-1 and Class II-A-2
Certificates, pro rata, any Basis Risk Shortfall due and owing for
each such Class;
(iii) to the Class II-A-2 Certificates, any Deferred Amount for
such Class;
(iv) to the Class II-M-1 Certificates, any Basis Risk
Shortfall due and owing for such Class;
(v) to the Class II-M-2 Certificates, any Basis Risk Shortfall
due and owing for such Class;
(vi) to the Class II-B Certificates, any Basis Risk Shortfall
due and owing for such Class;
(vii) to the Class II-M-1 Certificates, first, any Carryforward
Interest and then any Deferred Amount for such Class;
(viii) to the Class II-M-2 Certificates, first, any
Carryforward Interest and then any Deferred Amount for such Class;
(ix) to the Class II-B Certificates, first, any Carryforward
Interest and then any Deferred Amount for such Class;
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(x) to the Basis Risk Reserve Fund, any Required Basis Risk
Reserve Fund Deposit;
(xi) to the Class II-X Certificate, the Class II-X
Distributable Amount for such Distribution Date together with any
amounts withdrawn from the Basis Risk Reserve Fund for distribution
to such Class X Certificate pursuant to Sections 4.07(b) and (e);
and
(xii) to the Class AR Certificates, any remaining amount.
SECTION 4.02 Allocation of Losses.
A. (a) Realized Losses on the Group I Mortgage Loans with respect to any
Distribution Date shall be allocated by the Trust Administrator to the Classes
of Certificates as follows:
(i) any Realized Loss shall be allocated first, to the Group
I Subordinate Certificates in decreasing order of their numerical
Class designations (beginning with the Class I-B-6 Certificates),
until the respective Class Principal Balance of each such Class is
reduced to zero, and second, to the Group I Senior Certificates, pro
rata, on the basis of their respective Class Principal Balances; and
(ii) On each Distribution Date, Excess Losses for Group I
Mortgage Loans will be allocated among all Classes of Group I
Certificates, pro rata, based on their respective Class Principal
Balances.
(b) On each Distribution Date, if the aggregate Class Principal
Balance of all Group I Certificates exceeds the aggregate Stated Principal
Balance of the Group I Mortgage Loans (after giving effect to distributions of
principal and the allocation of all losses to such Certificates on such
Distribution Date), such excess will be deemed a principal loss and will be
allocated by the Trust Administrator to the most junior Class of Group I
Subordinate Certificates then outstanding.
(c) Any Realized Loss allocated to a Class of Certificates or
any reduction in the Class Principal Balance of a Class of Certificates
pursuant to Section 4.02A.(b) shall be allocated by the Trust Administrator
among the Certificates of such Class in proportion to their respective
Certificate Balances.
(d) Any allocation by the Trust Administrator of Realized Losses
to a Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02A. 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."
B. On each Distribution Date, the Trust Administrator shall determine
the total of the Applied Loss Amount with respect to the Group II
Certificates, if any, for such Distribution Date. The Applied Loss Amount with
respect to the Group II Certificates for any Distribution Date shall be
applied by: (i) first, reducing the Class Principal Balance of the Class of
Group II Subordinate Certificates then outstanding with the lowest relative
payment priority, until the
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respective Class Principal Balance thereof is reduced to zero and (ii) second,
after the aggregate Class Principal Balance of the Group II Subordinate
Certificates is reduced to zero, reducing the Class Principal Balance of the
Class II-A-2 Certificates, until the Class Principal Balance thereof is
reduced to zero. Any Applied Loss Amount with respect to the Group II
Certificates allocated to a Class of Group II Subordinate Certificates or the
Class II-A-2 Certificates shall be allocated among the Certificates of such
Class in proportion to their respective Percentage Interests.
SECTION 4.03 Reserved.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trust
Administrator shall prepare and cause to be made available to each
Certificateholder, the Master Servicer, each Servicer, the Trustee, the
Depositor, and each Rating Agency, a statement setting forth with respect to
the related distribution:
(i) the amount thereof allocable to principal, indicating the
portion thereof attributable to Scheduled Payments and Principal
Prepayments;
(ii) the amount thereof allocable to interest, indicating the
portion thereof attributable to any Carryforward Interest included
in 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 Balances of the Mortgage
Loans, by Loan Group and in the aggregate;
(vi) the amount of the Master Servicing Fees, the Servicing
Fees and the Trust Administrator Fees with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on
such Distribution Date and the aggregate amount of Advances
outstanding as of the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage
Loans in foreclosure or delinquent (with a notation indicating which
Mortgage Loans, if any, are in foreclosure) (1) 31 to 60 days, (2)
61 to 90 days and (4) 91 or more days, as of the close of business
on the last day of the calendar month preceding such Distribution
Date;
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(x) the Rolling Three Month Delinquency Rate for such
Distribution Date;
(xi) 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;
(xii) the aggregate amount of Realized Losses incurred during
the preceding calendar month and aggregate Realized Losses through
such Distribution Date; and
(xiii) the weighted average term to maturity of the Mortgage
Loans as of the close of business on the last day of the calendar
month preceding such Distribution Date.
The Trust Administrator's responsibility for disbursing the
above information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and each Servicer which shall be provided as required in Section 4.05. The
information in Sections 4.04(a)(ix) through 4.04(a)(xii) shall be reported on
a loan group basis and on with Loan Group I and Loan Group II together.
On each Distribution Date, the Trust Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") Cusip Level Factors for each
Class of Offered Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg. In
connection with providing the information specified in this Section 4.04 to
Bloomberg, the Trust Administratorand any director, officer, employee or agent
of the Trust Administrator shall be indemnified and held harmless by DLJMC, to
the extent, in the manner and subject to the limitations provided in Section
9.05. The Trust Administrator will also make the monthly statements to
Certificateholders available each month to each party referred to in Section
4.04(a) via the Trust Administrator's website. The Trust Administrator's
website can be accessed at xxxx://xxx.XXXxxxxx.xxx/xxxxxx or at such other
site as the Trust Administrator may designate from time to time. Persons that
are unable to use the above website are entitled to have a paper copy mailed
to them via first class mail by calling the Trust Administrator at
000-000-0000. The Trust Administrator shall have the right to change the way
the reports referred to in this Section are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
to the Certificateholders. The Trust Administrator shall provide timely and
adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall have no liability with respect to information provided by the Master
Servicer or any Servicer.
(b) Upon request, within a reasonable period of time after the
end of each calendar year, the Trust Administrator 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)(vi) of this Section 4.04 aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trust Administrator shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trust Administrator pursuant to any requirements of
the Code as from time to time in effect.
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SECTION 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Master Servicer, and the
Master Servicer shall provide to the Trust Administrator, the information set
forth in Exhibit H in such form as the Trust Administrator shall reasonably
request with respect to each Mortgage Loan serviced by the Master Servicer or
such Servicer no later than twelve noon on the Data Remittance Date to enable
the Trust Administrator to calculate the amounts to be distributed to each
class of certificates and otherwise perform its distribution, accounting and
reporting requirements hereunder.
SECTION 4.06 Reserved.
SECTION 4.07 Basis Risk Reserve Fund.
(a) On the Closing Date, the Trust Administrator shall establish
and maintain in its name, in trust for the benefit of the Holders of the
Certificates, the Basis Risk Reserve Fund. The Basis Risk Reserve Fund shall
be an Eligible Account, and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trust Administrator pursuant to
this Agreement.
(b) On the Closing Date, $5,000 will be deposited by the
Depositor into the Basis Risk Reserve Fund. On each Distribution Date, the
Trust Administrator shall transfer from the Certificate Account to the Basis
Risk Reserve Fund pursuant to Sections 4.01(II)(d)(x), the Required Basis Risk
Reserve Fund Deposit. Amounts on deposit in the Basis Risk Reserve Fund can be
withdrawn by the Trust Administrator in connection with any Distribution Date
to fund the amounts required to be distributed to holders of the Group II
Certificates in respect of Basis Risk Shortfall pursuant to Section
4.01(II)(d)(iv)-(vi) to the extent Monthly Excess Cashflow on such date is
insufficient to make such payments. On any Distribution Date, any amounts on
deposit in the Basis Risk Reserve Fund in excess of the Required Basis Risk
Reserve Fund Amount shall be distributed to the Class II-X Certificateholder
pursuant to Section 4.01(II)(d)(xi).
(c) Funds in the Basis Risk Reserve Fund may be invested in
Eligible Investments by the Trust Administrator at the direction of the
Depositor. Any net investment earnings on such amounts shall be payable to the
Depositor. The Depositor shall evidence ownership of the Basis Risk Reserve
Fund for federal tax purposes and the Depositor shall direct the Trustee in
writing as to the investment of amounts therein. In the absence of such
written direction, all funds in the Basis Risk Reserve Fund shall be invested
by the Trust Administrator in the JPMorgan Prime Money Market Fund. The Trust
Administrator shall have no liability for losses on investments in Eligible
Investments made pursuant to this Section 4.07(c) (other than as obligor on
any such investments).
(d) If the Trust Administrator shall deposit in the Basis Risk
Reserve Fund any amount not required to be deposited therein, it may at any
time withdraw such amount from such Basis Risk Reserve Fund, any provision
herein to the contrary notwithstanding.
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(e) On the Distribution Date immediately after the
Distribution Date on which the aggregate Class Principal Balance of the LIBOR
Certificates equals zero, any amounts on deposit in the Basis Risk Reserve
Fund not payable on the LIBOR Certificates shall be deposited into the
Certificate Account and distributed to the Holder of the Class II-X
Certificate in the same manner as if distributed pursuant to Section
4.01(II)(d)(xi) hereof.
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ARTICLE V
ADVANCES BY THE MASTER SERVICER AND SERVICERS
SECTION 5.01 Advances by the Master Servicer and Servicers.
The Master Servicer and each Servicer shall deposit in the
related 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 Mortgage Loans serviced by it during the applicable Collection Period and
which were delinquent at the close of business on the immediately preceding
Determination Date. The Master Servicer and each 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
such Servicer, been completely liquidated. The Master Servicer and each
Servicer shall not be required to advance shortfalls of principal or interest
resulting from the application of the Soldiers' and Sailors' Civil Relief Act
of 1940.
To the extent required by Accepted Servicing Practices, the
Master Servicer and each 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 Master
Servicer or a Servicer determines, in its reasonable opinion, that Advances
with respect to such Mortgage Loan are Nonrecoverable Advances. In the event
that the Master Servicer or such Servicer determines that any such advances
are Nonrecoverable Advances, the Master Servicer or such Servicer shall
provide the Trust Administrator and the Trustee with a certificate signed by a
Servicing Officer evidencing such determination.
If an Advance is required to be made hereunder, the Master
Servicer or the related Servicer shall on the Cash Remittance 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 5.01, used
by the Master Servicer or such 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 Master Servicer
or such 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.
If the amount of Advances received from a Servicer is less than
the amount required to be advanced by such Servicer, the Master Servicer shall
be obligated to make a payment in an amount equal to such deficiency.
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ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth
in Exhibits A, B, C, D E and G hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trust Administrator
or the Depositor be necessary, appropriate or convenient to comply, or
facilitate compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange on which any of the Certificates may be listed, or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
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.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Administrator by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trust Administrator shall bind the Trust Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of 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 there appears on such Certificate a certificate of
authentication executed by the Trust Administrator by manual signature, and
such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 6.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trust Administrator shall maintain, or cause to be
maintained, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trust Administrator 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 Trust Administrator shall execute, authenticate and deliver,
in the name of the
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designated transferee or transferees, one or more new Certificates in like
aggregate interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trust
Administrator set forth in Section 6.06. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator 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 Trust Administrator duly
executed by the Holder thereof or his attorney duly authorized in writing.
(c) 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.
(d) All Certificates surrendered for registration of transfer
and exchange shall be canceled and subsequently destroyed by the Trust
Administrator in accordance with the Trust Administrator's customary
procedures.
(e) No transfer of any Private Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the 1933 Act and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. 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
1933 Act and such laws, in order to assure compliance with the 1933 Act and
such laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit M (the "Transferor Certificate") and (i) deliver
a letter in substantially the form of either Exhibit N-1 (the "Investment
Letter") or Exhibit N-2 (the "Rule 144A Letter") or (ii) there shall be
delivered to the Trust Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the 1933 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 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 1933 Act pursuant to the registration
exemption provided by Rule 144A. The Trust Administrator 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 Trust
Administrator, the Depositor, each Seller, the Master Servicer, each Servicer
and the Special
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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.
(f) No transfer of an ERISA-Restricted Certificate shall be made
to any employee benefit or other plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Code, to a trustee or other person acting on behalf of any such plan,
or to any other person using "plan assets" to effect such acquisition, unless
the prospective transferee of a Certificate provides the Trust Administrator
with (i) in the case of an ERISA-Restricted Certificate that has been the
subject of an ERISA-Qualifying Underwriting, a certification as set forth in
item (d) of Exhibit N-1 or N-2 or item 15 of Exhibit O and in the case of any
other ERISA-Restricted Certificate, a certification as set forth in item d(i)
of Exhibit N-1 or N-2 or item 15(a) of Exhibit O; or (ii) an Opinion of
Counsel which establishes to the reasonable satisfaction of the Trustee and
the Trust Administrator that the purchase and holding of an ERISA-Restricted
Certificate by, on behalf of or with "plan assets" of such plan is permissible
under applicable local law, would not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and would not subject the Depositor, the Trustee, the Trust Administrator, the
Master Servicer or the Servicers or the Special Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Agreement or any other liability. The
Trust Administrator shall require, where applicable, that such prospective
transferee certify to the Trust Administrator in writing the facts
establishing that such transferee is not such a plan and is not acting on
behalf of or using "plan assets" of any such plan to effect such acquisition.
(g) Additional restrictions on transfers of the Class AR
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership
interest in a Class AR Certificate shall be deemed by the acceptance
or acquisition of such ownership interest to have agreed to be bound
by the following provisions and to have irrevocably authorized the
Trust Administrator or its designee under clause (iii)(A) below to
deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person
acquiring any ownership interest in a Class AR Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership
interest in a Class AR Certificate shall be other than a
Disqualified Organization and shall promptly notify the
Trust Administrator of any change or impending change in its
status as other than a Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class AR Certificate to a U.S.
Person, the Trust Administrator shall require delivery to
it, and shall not register the transfer of a Class AR
Certificate until its receipt of (1) an affidavit and
agreement (a "Transferee Affidavit and Agreement" attached
hereto as Exhibit O) from the proposed transferee, in form
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and substance satisfactory to the Trust Administrator,
representing and warranting, among other things, that it is
not a non-U.S. Person, that such transferee is other than a
Disqualified Organization, that it is not acquiring its
ownership interest in a Class AR Certificate that is the
subject of the proposed Transfer as a nominee, trustee or
agent for any Person who is not other than a Disqualified
Organization, that for so long as it retains its ownership
interest in a Class AR Certificate, it will endeavor to
remain other than a Disqualified Organization, and that it
has reviewed the provisions of this Section 6.02(g) and
agrees to be bound by them, and (2) a certificate, attached
hereto as Exhibit P, from the Holder wishing to transfer a
Class AR Certificate, in form and substance satisfactory to
the Trust Administrator, representing and warranting, among
other things, that no purpose of the proposed transfer is to
allow such Holder to impede the assessment or collection of
tax.
(C) Notwithstanding the delivery of a Transferee
Affidavit and Agreement by a proposed transferee under
clause (B) above, if the Trust Administrator has actual
knowledge that the proposed transferee is not other than a
Disqualified Organization, no transfer of an ownership
interest in a Class AR Certificate to such proposed
transferee shall be effected.
(D) Each Person holding or acquiring any ownership
interest in a Class AR Certificate agrees, by holding or
acquiring such ownership interest, to require a Transferee
Affidavit and Agreement from the other Person to whom such
Person attempts to transfer its ownership interest and to
provide a certificate to the Trust Administrator in the form
attached hereto as Exhibit P.
(ii) The Trust Administrator shall register the transfer of
any Class AR Certificate only if it shall have received the
Transferee Affidavit and Agreement, a certificate of the Holder
requesting such transfer in the form attached hereto as Exhibit P and
all of such other documents as shall have been reasonably required by
the Trust Administrator as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a
Holder of a Class AR Certificate, then the last preceding Holder that
was other than a Disqualified Organization shall be restored, to the
extent permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such transfer of
such Class AR Certificate. If any non-U.S. Person shall become a
Holder of a Class AR Certificate, then the last preceding Holder that
is a U.S. Person shall be restored, to the extent permitted by law,
to all rights and obligations as Holder thereof retroactive to the
date of registration of the transfer to such non-U.S. Person of such
Class AR Certificate. If a transfer of a Class AR Certificate is
disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding Holder
that was other than a Disqualified Organization shall be restored, to
the extent permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such transfer of
such Class AR Certificate. The Trust Administrator shall be under no
liability to any Person for any registration of transfer of a Class
AR Certificate that is in
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fact not permitted by this Section 6.02(g) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported transferee of a Class AR
Certificate shall become a Holder of a Class AR Certificate
in violation of the restrictions in this Section 6.02(g) and
to the extent that the retroactive restoration of the rights
of the Holder of such Class AR Certificate as described in
clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Depositor shall have the right,
without notice to the Holder or any prior Holder of such
Class AR Certificate, to sell such Class AR Certificate to a
purchaser selected by the Depositor on such terms as the
Depositor may choose. Such purported transferee shall
promptly endorse and deliver a Class AR Certificate in
accordance with the instructions of the Depositor. Such
purchaser may be the Depositor itself or any affiliate of
the Depositor. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Depositor or its affiliates), expenses and taxes due, if
any, shall be remitted by the Depositor to such purported
transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion
of the Depositor, and the Depositor shall not be liable to
any Person having an ownership interest or a purported
ownership interest in a Class AR Certificate as a result of
its exercise of such discretion.
(iv) The Master Servicer and each Servicer, on behalf of the
Trust Administrator, shall make available, upon written request from
the Trust Administrator, all information reasonably available to it
that is necessary to compute any tax imposed (A) as a result of the
transfer of an ownership interest in a Class AR Certificate to any
Person who is not other than a Disqualified Organization, including
the information regarding "excess inclusions" of such Residual
Certificate required to be provided to the Internal Revenue Service
and certain Persons as described in Treasury Regulation Section
1.860D-1(b)(5), and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund,
partnership, trust, estate or organizations described in Section 1381
of the Code having as among its record holders at any time any Person
who is not other than a Disqualified Organization. Reasonable
compensation for providing such information may be required by the
Master Servicer or the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior
to this Section (v) may be modified, added to or eliminated by the
Depositor, provided that there shall have been delivered to the Trust
Administrator the following:
(A) written notification from each Rating Agency to
the effect that the modification, addition to or elimination
of such provisions will not cause such Rating Agency to
downgrade its then-current rating of the Certificates; and
(B) a certificate of the Depositor stating that the
Depositor has received an Opinion of Counsel, in form and
substance satisfactory to the
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Depositor, to the effect that such modification, addition to
or elimination of such provisions will not cause the Trust
Fund to cease to qualify as a REMIC and will not create a
risk that (i) the Trust Fund may be subject to an
entity-level tax caused by the transfer of a Class AR
Certificate to a Person which is not other than a
Disqualified Organization or (2) a Certificateholder or
another Person will be subject to a REMIC-related tax caused
by the transfer of applicable Class AR Certificate to a
Person which is not other than a Disqualified Organization.
(vi) The following legend shall appear on each Class AR
Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A
TRANSFER AFFIDAVIT TO THE Servicer AND THE TRUST
ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY
CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY
ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE
THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
SUCH AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO
THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS AR
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THE CLASS
AR CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
(h) The Trust Administrator shall have no liability to the Trust
Fund arising from a transfer of any such Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 6.02;
provided, however, that the Trust Administrator shall not register the
transfer of any Class AR Certificate if it has actual knowledge that the
proposed transferee
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does not meet the qualifications of a permitted Holder of a Class AR
Certificate as set forth in this Section 6.02.
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to each Servicer, the Trustee and the Trust Administrator
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee and the Trust
Administrator that such Certificate has been acquired by a bona fide
purchaser, the Trust Administrator shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust Fund.
In connection with the issuance of any new Certificate under this Section
6.03, the Trust Administrator 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 Trust
Administrator) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trust Administrator, and any agent of the Master
Servicer or any Servicer, the Trust Administrator 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 Master Servicer or the
Servicers, the Trust Administrator, nor any agent of the Master Servicer or a
Servicer or the Trust Administrator shall be affected by any notice to the
contrary.
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses.
(a) If three or more Certificateholders (i) request in writing
from the Trust Administrator a list of the names and addresses of
Certificateholders, (ii) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (iii) provide a copy of the
communication which such Certificateholders propose to transmit, then the
Trust Administrator shall, within ten Business Days after the receipt of such
request, afford such Certificateholders access during normal business hours to
a current list of the Certificateholders. The expense of providing any such
information requested by a Certificateholder shall be borne by the
Certificateholders requesting such information and shall not be borne by the
Trust Administrator or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Trustee and the Trust Administrator
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.
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(b) The Master Servicer and each Servicer, so long as it is a
servicer hereunder, the Sellers and the Depositor shall have unlimited access
to a list of the names and addresses of the Certificateholders which list
shall be provided by the Trust Administrator promptly upon request.
SECTION 6.06 Maintenance of Office or Agency.
The Trust Administrator will maintain or cause to be maintained
at its expense an office or offices or agency or agencies in New York City
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Trust Administrator in respect of
the Certificates and this Agreement may be served. The Trust Administrator
initially designates its Corporate Trust Office as its office for such
purpose. The Trust Administrator will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force
and effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trust Administrator may deal with the
Clearing Agency for all purposes with respect to the Book-Entry Certificates
(including the making of distributions on such Certificates) as the sole
Holder of such Certificates;
(c) to the extent that the provisions of this Section 6.07
conflict with any other provisions of this Agreement, the provisions of this
Section 6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a
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specified percentage of the aggregate unpaid principal amount of such
Certificates, such direction or consent may be given by the Clearing Agency at
the direction of Beneficial Holders owning such Certificates evidencing the
requisite percentage of principal amount of such Certificates. The Clearing
Agency may take conflicting actions with respect to the Book-Entry
Certificates to the extent that such actions are taken on behalf of the
Beneficial Holders.
SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of
Book-Entry Certificates is required under this Agreement, unless and until
Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 6.09, the Trust Administrator shall
give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency which shall give
such notices and communications to the related Participants in accordance with
its applicable rules, regulations and procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trust Administrator in writing
that the Clearing Agency is no longer willing or able to properly discharge
its responsibilities under the Depository Agreement with respect to the
Certificates and the Trust Administrator or the Depositor is unable to locate
a qualified successor, (b) the Depositor, at its option, advises the Trust
Administrator in writing that it elects to terminate the book-entry system
with respect to the Book-Entry Certificates through the Clearing Agency or (c)
after the occurrence of an Event of Default, Holders of Book-Entry
Certificates evidencing not less than 66-2/3% of the aggregate Class Principal
Balance of the Book-Entry Certificates advise the Trust Administrator in
writing that the continuation of a book-entry system with respect to the such
Certificates through the Clearing Agency is no longer in the best interests of
the Holders of such Certificates with respect to the Book-Entry Certificates,
the Trust Administrator shall notify all Holders of such Certificates of the
occurrence of any such event and the availability of Definitive Certificates.
Upon surrender to the Trust Administrator of the such Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trust Administrator shall authenticate and
deliver the Definitive Certificates. Neither the Depositor nor the Trust
Administrator shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trust Administrator,
to the extent applicable with respect to such Definitive Certificates, and the
Trust Administrator shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
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ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE MASTER SERVICER, THE SERVICERS AND
THE SPECIAL SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor, the
Master Servicer, the Servicers and the Special
Servicer.
The Depositor, the Sellers, the Master Servicer and any Servicer
shall each be liable, including the liability of each Servicer to the Master
Servicer, in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
SECTION 7.02 Merger or Consolidation of the Sellers, the
Depositor, the Master Servicer, the Servicers
or the Special Servicer.
Subject to the immediately succeeding paragraph, the Depositor,
the Sellers, the Master Servicer, any Servicer and the Special Servicer will
each do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises (charter and statutory)
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.
Any Person into which the Depositor, any Seller, the Master
Servicer, any Servicer or the Special Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor, any Seller, the Master Servicer, any Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business of the
Depositor, any Seller or any Servicer, shall be the successor of the
Depositor, such Seller or such 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 (i) the successor or surviving Person to the Master
Servicer, any such Servicer (other than WMMSC) or the Special Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on
behalf of, FNMA or FHLMC and (ii) the successor or surviving Person to WMMSC
shall have a net worth of at least $15,000,000, unless each of the Rating
Agencies acknowledge, at the expense of the successor or surviving person to
WMMSC, that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such successor or
surviving Person to WMMSC not having a net worth of at least $15,000,000.
Notwithstanding anything else in this Section 7.02 or in Section
7.04 hereof to the contrary, the Master Servicer or a Servicer may assign its
rights and delegate its duties and obligations under this Agreement; provided,
however, that the Master Servicer or such Servicer gives the Depositor, the
Trustee and the Trust Administrator notice of such assignment; and provided
further, that such purchaser or transferee accepting such assignment and
delegation shall be an institution that is a FNMA and FHLMC approved
seller/servicer in good standing,
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which has a net worth of at least $15,000,000, and which is willing to service
the Mortgage Loans and executes and delivers to the Depositor, the Trustee and
the Trust Administrator an agreement accepting such delegation and assignment,
which contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer or such
Servicer, with like effect as if originally named as a party to this
Agreement; and provided further, that each of the Rating Agencies acknowledge
that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such assignment and
delegation. In the case of any such assignment and delegation, the Master
Servicer or such Servicer shall be released from its obligations under this
Agreement (except as provided above), except that the Master Servicer or the
Servicer shall remain liable for all liabilities and obligations incurred by
it as the Master Servicer or Servicer hereunder prior to the satisfaction of
the conditions to such assignment and delegation set forth in the preceding
sentence.
SECTION 7.03 Limitation on Liability of the Sellers, the
Depositor, the Master Servicer, the Servicers,
the Special Servicer and Others.
None of the Depositor, the Master Servicer, any Servicer, any
Seller, the Special Servicer nor any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, any Servicer, any Seller or the
Special 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 Master Servicer, any
Servicer, any Seller or the Special Servicer against any breach of
representations or warranties made by it herein or protect the Depositor, the
Master Servicer, any Servicer, any Seller or the Special Servicer or any such
director, officer, employee or agent from any liability which would otherwise
be imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Master Servicer, any Servicer, any
Seller and the Special Servicer and any director, officer, employee or agent
of the Depositor, the Master Servicer, any Servicer, any Seller or the Special
Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, any Servicer, any Seller and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer, any Servicer, any Seller or the Special
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Master Servicer, any Servicer, any Seller or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to their respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that
the Depositor, the Master Servicer, any Servicer, any Seller or the Special
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, the Trust Administrator
and the Certificateholders
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hereunder. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Master Servicer or any Servicer or the Special Servicer be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Master
Servicer or the Servicer or the Special Servicer has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 7.04 Master Servicer and Servicer Not to Resign;
Transfer of Servicing.
(a) A Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon appointment of a successor servicer and
receipt by the Trustee and the Trust Administrator of a letter from each
Rating Agency that such a resignation and appointment will not result in a
downgrading of the rating of any of the Certificates related to the applicable
Mortgage Loans, or (ii) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination under clause
(ii) permitting the resignation of the Master Servicer or a Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee and
the Trust Administrator. No such resignation shall become effective until the
successor servicer shall have assumed such Servicer's responsibilities,
duties, liabilities and obligations hereunder in accordance with Section 8.02
hereof.
(b) Notwithstanding the foregoing, DLJ Mortgage Capital, Inc. or
its transferee shall be entitled to request that the Master Servicer or a
Servicer, other than WMMSC, resign and appoint a successor servicer; provided
that such entity delivers to the Trustee and the Trust Administrator the
letter required in Section 7.04(a)(i) above; and provided further, however,
that the resignation and appointment of the Master Servicer shall be subject
to, and shall in no way affect, WMMSC's right to continue to serve as the
Servicer of the WMMSC Serviced Mortgage Loans, and to collect any related
Servicing Fee for such Mortgage Loans.
SECTION 7.05 Master Servicer, Seller and Servicers May Own
Certificates.
Each of the Master Servicer, any Seller, the Special Servicer
and Servicers in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not
the Master Servicer, a Seller, the Special Servicer or a Servicer.
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ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, and as to each
Servicer or the Master Servicer, means any one of the following events
(whatever reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) any failure by the Master Servicer or the Servicer to remit
to the Certificateholders or to the Trust Administrator any payment other than
an Advance required to be made by the Master Servicer or the Servicer under
the terms of this Agreement, which failure shall continue unremedied for a
period of one Business Day after the date upon which written notice of such
failure shall have been given to the Master Servicer or the Servicer by the
Trust Administrator or the Depositor or to the Master Servicer or the Servicer
and the Trust Administrator by the Holders of Certificates having not less
than 25% of the Voting Rights evidenced by the Certificates; or
(b) any failure by the Master Servicer or the Servicer to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer or the Servicer contained in
this Agreement (except as set forth in (c) and (g) below) which failure (i)
materially affects the rights of the Certificateholders and (ii) shall
continue unremedied for a period of 60 days after the date on which written
notice of such failure shall have been given to the Master Servicer or the
Servicer by the Trust Administrator or the Depositor, or to the Master
Servicer or the Servicer and the Trust Administrator by the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates; or
(c) if a representation or warranty set forth in Section 2.03
hereof made solely in its capacity as the Master Servicer or a Servicer shall
prove to be materially incorrect as of the time made in any respect that
materially and adversely affects interests of the Certificateholders, and the
circumstances or condition in respect of which such representation or warranty
was incorrect shall not have been eliminated or cured within 90 days after the
date on which written notice thereof shall have been given to the Master
Servicer or the Servicer and Seller by the Trust Administrator for the benefit
of the Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Master Servicer or the Servicer and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 days; or
(e) the Master Servicer or the Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of
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assets and liabilities or similar proceedings of or relating to the Master
Servicer or the Servicer or all or substantially all of the property of the
Master Servicer or the Servicer; or
(f) the Master Servicer or 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 or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations; or
(g) any failure of the Master Servicer or the Servicer to make
any Advance in the manner and at the time required to be made from its own
funds pursuant to this Agreement and after receipt of notice from the Trust
Administrator pursuant to Section 5.01, which failure continues unremedied
after 5 p.m., New York City time, on the Business Day immediately following
the Master Servicer or the Servicer's receipt of such notice.
If an Event of Default due to the actions or inaction of the
Master Servicer or a Servicer described in clauses (a) through (f) of this
Section shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trust Administrator shall
at the direction of the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates, by notice in writing to
the Master Servicer or such Servicer (with a copy to the Rating Agencies),
terminate all of the rights and obligations of the Master Servicer or such
Servicer under this Agreement (other than rights to reimbursement for Advances
and Servicing Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, the
Trust Administrator, or the Master Servicer, as applicable, shall, immediately
make such Advance and prior to the next Distribution Date, terminate the
rights and obligations of the applicable Servicer hereunder and succeed to the
rights and obligations of the Master Servicer or such Servicer, as applicable,
hereunder pursuant to Section 8.02, including the obligation to make Advances
on such succeeding Distribution Date pursuant to the terms hereof. No Event of
Default with respect to the Master Servicer or a Servicer shall affect the
rights or duties of any other Servicer or constitute an Event of Default as to
any other Servicer. An Event of Default with respect to a Servicer shall be
deemed to be an Event of Default with respect to the Master Servicer.
SECTION 8.02 Master Servicer or Trust Administrator to Act;
Appointment of Successor.
On and after the time the Master Servicer or a Servicer receives
a notice of termination pursuant to Section 8.01 hereof or resigns pursuant to
Section 7.04 hereof, subject to the provisions of Section 3.04 hereof, the
Trust Administrator (in the case of the Master Servicer), or the Master
Servicer (in the case of a Servicer), shall be the successor in all respects
to the Master Servicer or such Servicer, as applicable, in its capacity as
servicer under this Agreement and with respect to the transactions set forth
or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer or such
Servicer, as applicable, by the terms and provisions hereof, provided that the
Trust Administrator, or the Master Servicer, as applicable, shall not be
deemed to have made any representation or warranty as to any Mortgage Loan
made by the Master Servicer or any
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Servicer, as applicable, and shall not effect any repurchases or substitutions
of any Mortgage Loan. As compensation therefor, the Trust Administrator, or
the Master Servicer, as applicable, shall be entitled to all funds relating to
the Mortgage Loans that the Master Servicer or the related Servicer, as
applicable, would have been entitled to charge to the related Collection
Account if the Master Servicer or such Servicer, as applicable, had continued
to act hereunder (except that the terminated or resigning Servicer shall
retain the right to be reimbursed for advances (including, without limitation,
Advances and Servicing Advances) theretofore made by the Master Servicer or
the Servicer with respect to which it would be entitled to be reimbursed as
provided in Section 3.08 if it had not been so terminated or resigned as
Master Servicer or Servicer). Notwithstanding the foregoing, if the Trust
Administrator, or the Master Servicer, as applicable, has become the successor
to the Master Servicer or a Servicer, as applicable, in accordance with this
Section 8.02, the Trust Administrator, or the Master Servicer, as applicable,
may, if it shall be unwilling to so act, or shall, if it is 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, as the
successor to the Master Servicer or a Servicer, as applicable, hereunder in
the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer or such Servicer, as applicable, provided
that such successor to the Master Servicer or the Servicer, as applicable,
shall not be deemed to have made any representation or warranty as to any
Mortgage Loan made by the Master Servicer or the related Servicer, as
applicable. Pending appointment of a successor to the Master Servicer or a
Servicer, as applicable, hereunder, the Trust Administrator, or the Master
Servicer, as applicable, unless such party is prohibited by law from so
acting, shall act in such capacity as provided herein. In connection with such
appointment and assumption, the Trust Administrator, or the Master Servicer,
as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Master Servicer or the related Servicer, as applicable,
hereunder. The Trust Administrator, or the Master Servicer, as applicable, and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Neither the Trust
Administrator, the Master Servicer nor any other successor servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
the failure of the Master Servicer or applicable Servicer to deliver, or any
delay in delivering, cash, documents or records to it.
A Master Servicer or a Servicer that has been terminated shall,
at the request of the Trust Administrator, or the Master Servicer, as
applicable, but at the expense of such Master Servicer or Servicer, as
applicable, deliver to the assuming party all documents and records relating
to each Sub-Servicing Agreement and the related Mortgage Loans and an
accounting of amounts collected and held by it and otherwise use commercially
reasonable efforts to effect the orderly and efficient transfer and assignment
of each Sub-Servicing Agreement, but only to the extent of the Mortgage Loans
serviced thereunder, to the assuming party. Notwithstanding anything to the
contrary contained herein, the termination of the Master Servicer or a
Servicer under this Agreement shall not extend to any Sub-Servicer meeting the
requirements of Section 3.02(a) and otherwise servicing the related Mortgage
Loans in accordance with the servicing provisions of this Agreement.
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The Master Servicer and each Servicer shall cooperate with the
Trust Administrator and any successor servicer in effecting the termination of
the terminated Master Servicer or Servicer's, as applicable, 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 Master Servicer or such Servicer, as applicable, to the
applicable Collection Account or thereafter received with respect to the
Mortgage Loans.
Neither the Trust Administrator nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (a) the failure of the Master Servicer or any Servicer to (i)
deliver, or any delay in delivering, cash, documents or records to it, (ii)
cooperate as required by this Agreement, or (iii) deliver the Mortgage Loan to
the Trust Administrator as required by this Agreement, or (b) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer or the related Servicer.
Any successor to the Master Servicer or a Servicer as servicer
shall during the term of its service as servicer maintain in force the policy
or policies that the Master Servicer or such Servicer is required to maintain
pursuant to Section 3.09(b) hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the
Master Servicer or any Servicer, the Trust Administrator shall give prompt
written notice thereof to the Sellers, and the Certificateholders at their
respective addresses appearing in the Certificate Register and to the Rating
Agencies, or, as applicable, the Master Servicer shall give prompt written
notice thereof to the Trust Administrator.
(b) Within two Business Days after the occurrence of any Event
of Default, the Trust Administrator shall transmit by mail to the Sellers and
all Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trust Administrator, unless such Event of
Default shall have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 12.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been cured and remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
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ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trustee shall have actual
knowledge 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. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Trustee shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected 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 misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of Default of which
a Responsible Officer of the Trustee shall have actual knowledge, and
after the curing or of all such Events of Default that may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be personally 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 reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
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(b) the Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was negligent
in ascertaining or investigating the pertinent facts;
(c) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with this Agreement at the direction of the
Holders of Certificates evidencing greater than 50% of the Voting
Rights allocated to each Class 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; and
(d) no provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(e) the Trustee shall have no responsibility for any act or
omission of the Trust Administrator, it being understood and agreed
that the Trustee and Trust Administrator are independent contractors
and not agents, partners or joint venturers.
Except with respect to an Event of Default described in clause
(a) of Section 8.01, the Trustee shall not be deemed to have knowledge of any
Event of Default or event which, with notice or lapse of time, or both, would
become an Event of Default, unless a Responsible Officer of the Trustee shall
have received written notice thereof from a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer or the Servicer upon receipt of any such complaint, claim, demand,
notice or other document (i) which is delivered to the Corporate Trust Office
of the Trustee, (ii) of which a Responsible Officer has actual knowledge, and
(iii) which contains information sufficient to permit the Trustee to make a
determination that the real property to which such document relates is a
Mortgaged Property.
SECTION 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors,
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Servicing Officers 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;
(ii) the Trustee may consult with counsel, financial advisors
or accountants and any advice of such Persons or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default that may
have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates
evidencing greater than 50% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action; the reasonable expense of every such investigation shall be
paid (A) by the Master Servicer or by the applicable Servicer in the
event that such investigation relates to an Event of Default by the
Master Servicer or by such Servicer, respectively, if an Event of
Default by the Master Servicer or by such Servicer shall have
occurred and is continuing, and (B) otherwise by the
Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee
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shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care;
(vii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any
of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such liability is not assured to it;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement; and
(ix) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence
or willful misconduct in the performance of such act.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer or a Servicer, 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, the
Certificates or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor, the Sellers,
the Master Servicer or the Servicers of any funds paid to the Depositor or the
Master Servicer or any Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor, the Sellers or
the Master Servicer or the Servicers. The Trustee shall not be responsible for
the legality or validity of this Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 9.04 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 other
parties hereto and with their Affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall be compensated by the Trust Administrator as
separately agreed. The Trustee and any director, officer, employee or agent of
the Trustee shall be
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indemnified by the Depositor 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 Certificates, or (c) 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 Master Servicer or a
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. 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. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both Xxxxx'x
or S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or 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 9.06 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 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
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SECTION 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the
trusts hereby created by (a) giving written notice of resignation to the
Depositor, the Sellers, the Trust Administrator, the Master Servicer, the
Special Servicer and the Servicers and by mailing notice of resignation by
first class mail, postage prepaid, to the Certificateholders at their
addresses appearing on the Certificate Register, and to the Rating Agencies,
not less than 60 days before the date specified in such notice when, subject
to Section 9.08, such resignation is to take effect, and (b) acceptance by a
successor trustee in accordance with Section 9.08 meeting the qualifications
set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 hereof 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 a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation or if the Trustee breaches any of its obligations or
representations hereunder, then the Depositor may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee and one copy to the
successor trustee. The Trustee may also be removed at any time by the Holders
of Certificates evidencing not less than 50% of the Voting Rights evidenced by
the Certificates. Notice of any removal of the Trustee and acceptance of
appointment by the successor trustee shall be given to the Rating Agencies by
the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07
hereof shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, 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, upon receipt of all amounts
due it hereunder, 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 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions
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of Section 9.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as
provided in this Section 9.08, the Depositor shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register. If the Depositor fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof 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.
SECTION 9.10 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 Master Servicer or the Servicers 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 applicable
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 9.10, such powers, duties,
obligations, rights and trusts as the Master Servicer or the Servicers and the
Trustee may consider necessary or desirable. If the Master Servicer or the
Servicers shall not have joined in such appointment within fifteen 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
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer or the Servicer,
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 by the
Trustee (whether as Trustee hereunder or as
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successor to the Master Servicer or the Servicer), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) no trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(c) the Master Servicer or the Servicers and the Trustee acting
jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer or the Servicers 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. The Trust Administrator shall
not be responsible for all action or inaction of any separate trustee or
co-trustee. 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 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
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ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator.
The Trust Administrator, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge and after the curing or waiver of all Events of Default that
may have occurred, undertakes with respect to the Trust Fund to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case an Event of Default of which a Responsible Officer of the Trust
Administrator shall have actual knowledge has occurred and remains uncured,
the Trust Administrator 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. Any permissive right of the Trust
Administrator set forth in this Agreement shall not be construed as a duty.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement. The Trust Administrator shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the Trust
Administrator. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trust Administrator shall
notify the Certificateholders of such instrument in the event that the Trust
Administrator, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(a) prior to the occurrence of an Event of Default of which
a Responsible Officer of the Trust Administrator shall have actual
knowledge, and after the curing or of all such Events of Default
that may have occurred, the duties and obligations of the Trust
Administrator shall be determined solely by the express provisions
of this Agreement, the Trust Administrator shall not be personally
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 Trust
Administrator and the Trust Administrator 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 Trust Administrator and conforming to the requirements of this
Agreement which it reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
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(b) the Trust Administrator shall not be personally liable
for an error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trust Administrator, unless the Trust
Administrator was negligent in ascertaining or investigating the
pertinent facts;
(c) the Trust Administrator shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with this Agreement or at the
direction of the Holders of Certificates evidencing greater than 50%
of the Voting Rights allocated to each Class of Certificates
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trust Administrator, or exercising
any trust or power conferred upon the Trust Administrator, under
this Agreement; and
(d) no provision of this Agreement shall require the Trust
Administrator to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
The Trust Administrator shall have no duty (A) to see to any
recording, filing or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording, filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Certificate Account.
Except with respect to an Event of Default described in clause
(a) of Section 8.01, the Trust Administrator shall not be deemed to have
knowledge of any Event of Default or event which, with notice or lapse of
time, or both, would become an Event of Default, unless a Responsible Officer
of the Trust Administrator shall have received written notice thereof from the
Master Servicer or a Servicer, the Depositor, or a Certificateholder, or a
Responsible Officer of the Trust Administrator has actual notice thereof, and
in the absence of such notice no provision hereof requiring the taking of any
action or the assumption of any duties or responsibility by the Trust
Administrator following the occurrence of any Event of Default or event which,
with notice or lapse of time or both, would become an Event of Default, shall
be effective as to the Trust Administrator.
The Trust Administrator shall have no duty hereunder with
respect to any complaint, claim, demand, notice or other document it may
receive or which may be alleged to have been delivered to or served upon it by
the parties as a consequence of the assignment of any Mortgage Loan hereunder;
provided, however, that the Trust Administrator shall use its best efforts to
remit to the Master Servicer or the Servicer upon receipt of any such
complaint, claim, demand, notice or other document (i) which is delivered to
the Corporate Trust Office of the Trust Administrator, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which
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contains information sufficient to permit the Trust Administrator to make a
determination that the real property to which such document relates is a
Mortgaged Property.
SECTION 10.02 Certain Matters Affecting the Trust Administrator.
(a) Except as otherwise provided in Section 10.01:
(i) the Trust Administrator may request and rely upon and shall
be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors,
Servicing Officers 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;
(ii) the Trust Administrator may consult with counsel, financial
advisors or accountants and any advice of such Persons or 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 Trust Administrator shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement
or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trust
Administrator reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trust
Administrator of the obligation, upon the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator
shall have actual knowledge (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trust Administrator shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default that may have
occurred, the Trust Administrator 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 greater than 50% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within
a reasonable time to the Trust Administrator of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trust Administrator, not
reasonably assured to the Trust Administrator by the security
afforded to it by the terms
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of this Agreement, the Trust Administrator may require reasonable
indemnity against such expense or liability as a condition to taking
any such action; the reasonable expense of every such investigation
shall be paid (A) by the Master Servicer or by the applicable
Servicer in the event that such investigation relates to an Event of
Default by the Master Servicer or by such Servicer, respectively, if
an Event of Default by the Master Servicer or such Servicer shall
have occurred and is continuing, and (B) otherwise by the
Certificateholders requesting the investigation;
(vi) the Trust Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trust Administrator shall
not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care;
(vii) the Trust Administrator shall not be required to expend
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) the Trust Administrator shall not be liable for any loss
on any investment of funds pursuant to this Agreement except as
provided in Section 3.05(e);
(ix) the right of the Trust Administrator to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trust Administrator shall not be
answerable for other than its negligence or willful misconduct in
the performance of such act; and
(x) The Trust Administrator shall not be required to give any
bond or surety in respect of the execution of the Trust Fund created
hereby or the powers granted hereunder.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trust Administrator, may be enforced by
it without the possession of any of the Certificates, or the production
thereof at the trial or other proceeding relating thereto, and any such suit,
action or proceeding instituted by the Trust Administrator shall be brought in
its name for the benefit of all the Holders of such Certificates, subject to
the provisions of this Agreement.
SECTION 10.03 Trust Administrator Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trust Administrator assumes no responsibility for their correctness. The
Trust Administrator makes no representations as to the validity or sufficiency
of this Agreement, the Certificates or of any Mortgage Loan or related
document. The Trust Administrator shall not be accountable for the use or
application by the Depositor, the Sellers, the Master Servicer or the
Servicers of any funds paid to the Depositor or the Master Servicer
or any Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor, the Sellers or the Master
Servicer or
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the Servicers. The Trust Administrator shall not be responsible
for the legality or validity of this Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder. The Trust Administrator shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
for any security interest or lien granted to it hereunder or to record this
Agreement.
SECTION 10.04 Trust Administrator May Own Certificates.
The Trust Administrator in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights
as it would have if it were not the Trust Administrator.
SECTION 10.05 Trust Administrator's Fees and Expenses.
As compensation for its services hereunder, the Trust
Administrator shall be entitled to withdraw from the Certificate Account
pursuant to Section 3.08(b)(i) the amount of the Trust Administrator Fee for
each Mortgage Loan prior to any distribution on the Certificates. The Trust
Administrator and any director, officer, employee or agent of the Trust
Administrator shall be indemnified by DLJMC and held harmless (up to a maximum
of $150,000) 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 Certificates, (c) the
Custodial Agreement, or (d) the performance of any of the Trust
Administrator's duties hereunder or under the Custodial Agreement, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Trust Administrator's
duties hereunder or incurred by reason of any action of the Trust
Administrator taken at the direction of the Certificateholders and (ii)
resulting from any error in any tax or information return prepared by the
Master Servicer or a Servicer. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trust Administrator
hereunder. Without limiting the foregoing, DLJMC covenants and agrees, except
as otherwise agreed upon in writing by DLJMC and the Trust Administrator, and
except for any such expense, disbursement or advance as may arise from the
Trust Administrator's negligence, bad faith or willful misconduct, to pay or
reimburse the Trust Administrator (up to a maximum of $150,000), for all
reasonable expenses, disbursements and advances incurred or made by the Trust
Administrator 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
Trust Administrator, to the extent that the Trust Administrator must engage
such persons to perform acts or services hereunder and (C) printing and
engraving expenses in connection with preparing any Definitive Certificates.
In addition, DLJMC covenants and agrees, to pay or reimburse the Trust
Administrator for recertification fees required to be paid by the Trust
Administrator pursuant to a Custodial Agreement. Except as otherwise provided
herein, the Trust Administrator shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trust
Administrator in the ordinary course of its duties as Trust Administrator,
Registrar, Tax Matters Person or Paying Agent hereunder or for any other
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expenses. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trust Administrator be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Trust Administrator has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 10.06 Eligibility Requirements for Trust Administrator.
The Trust Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having ratings on its long-term debt obligations at
the time of such appointment in at least the third highest rating category by
both Xxxxx'x and S&P or such lower ratings as will not cause Xxxxx'x or S&P to
lower their then-current ratings of the Class A Certificates, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or 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 10.06 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 Trust Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Trust Administrator shall resign immediately in the manner and with the
effect specified in Section 10.07 hereof.
SECTION 10.07 Resignation and Removal of Trust Administrator.
The Trust Administrator may at any time resign and be discharged
from the trusts hereby created by (a) giving written notice of resignation to
the Depositor, the Sellers, the Trustee, the Master Servicer, the Special
Servicer and the Servicers and by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing
on the Certificate Register, and to the Rating Agencies, not less than 60 days
before the date specified in such notice when, subject to Section 10.08, such
resignation is to take effect, and (b) acceptance by a successor trust
administrator in accordance with Section 10.08 meeting the qualifications set
forth in Section 10.06.
If at any time the Trust Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any
time the Trust Administrator shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trust Administrator or
of its property shall be appointed, or any public officer shall take charge or
control of the Trust Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or if the Trust
Administrator breaches any of its obligations or representations hereunder,
then the Depositor may remove the Trust Administrator and appoint a successor
trust administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trust Administrator and one copy to the
successor trust administrator. The Trust Administrator may also be removed at
any time by the Trustee or the Holders of Certificates evidencing not less
than 50% of the Voting Rights evidenced by the Certificates. Notice of any
removal of the Trust
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Administrator and acceptance of appointment by the successor trust
administrator shall be given to the Rating Agencies by the Depositor.
If no successor trust administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation or receipt of a notice of removal, the resigning Trust
Administrator may, at the Trust Fund's expense, petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance of
appointment by the successor trust administrator as provided in Section 10.08
hereof.
SECTION 10.08 Successor Trust Administrator.
Any successor trust administrator appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor trust administrator an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trust administrator shall become effective and such successor
trust administrator, 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 trust
administrator herein. The Depositor, upon receipt of all amounts due it
hereunder, and the predecessor trust administrator 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 trust
administrator all such rights, powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of
Section 10.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trust
administrator as provided in this Section 10.08, the Depositor shall mail
notice of the succession of such trust administrator hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register. If
the Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor trust administrator, the successor trust
administrator shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 10.09 Merger or Consolidation of Trust Administrator.
Any Person into which the Trust Administrator may be merged or
converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trust Administrator shall
be a party, or any Person succeeding to the business of the Trust
Administrator, shall be the successor of the Trust Administrator hereunder,
provided that such Person shall be eligible under the provisions of Section
10.06 hereof 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 10.10 Appointment of Co-Trust Administrator or Separate
Trust Administrator.
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 Master Servicer or the Servicers and the Trust
Administrator acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trust
Administrator to act as co-trust administrator or co-trust administrators
jointly with the Trust Administrator, or separate trust administrator or
separate trust administrators, 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
applicable Certificateholders, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 10.10, such
powers, duties, obligations, rights and trusts as the Master Servicer or the
Servicers and the Trust Administrator may consider necessary or desirable. If
the Master Servicer or the Servicers shall not have joined in such appointment
within fifteen 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 Trust
Administrator alone shall have the power to make such appointment. No co-trust
administrator or separate trust administrator hereunder shall be required to
meet the terms of eligibility as a successor trust administrator under Section
10.06 and no notice to Certificateholders of the appointment of any co-trust
administrator or separate trust administrator shall be required under Section
10.08.
Every separate trust administrator and co-trust administrator
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Trust Administrator, except for any obligation of the Trust
Administrator under this Agreement to advance funds on behalf of the Master
Servicer or the Servicer, shall be conferred or imposed upon and exercised or
performed by the Trust Administrator and such separate trust administrator or
co-trust administrator jointly (it being understood that such separate trust
administrator or co-trust administrator is not authorized to act separately
without the Trust Administrator 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 by the Trust Administrator (whether as Trust Administrator
hereunder or as successor to the Master Servicer or the Servicer), the Trust
Administrator shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trust
administrator or co-trust administrator, but solely at the direction of the
Trust Administrator;
(b) no trust administrator hereunder shall be held personally
liable by reason of any act or omission of any other trust administrator
hereunder; and
(c) the Master Servicer or the Servicers and the Trust
Administrator acting jointly may at any time accept the resignation of or
remove any separate trust administrator or co-trust administrator.
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Any notice, request or other writing given to the Trust
Administrator shall be deemed to have been given to each of the then separate
trust administrators and co-trust administrators, as effectively as if given
to each of them. Every instrument appointing any separate trust administrator
or co-trust administrator shall refer to this Agreement and the conditions of
this Article X. Each separate trust administrator and co-trust administrator,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trust Administrator 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 Trust Administrator. Every such instrument shall
be filed with the Trust Administrator and a copy thereof given to the Master
Servicer or the Servicers and the Depositor.
Any separate trust administrator or co-trust administrator may,
at any time, constitute the Trust Administrator, 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. The Trust Administrator shall not be responsible for
any action or inaction of any separate Trust Administrator or Co-Trust
Administrator. If any separate trust administrator or co-trust administrator
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 Trust Administrator, to the extent permitted by law, without
the appointment of a new or successor trust administrator.
SECTION 10.11 Office of the Trust Administrator.
The office of the Trust Administrator for purposes of receipt of
notices and demands is the Corporate Trust Office.
SECTION 10.12 Tax Return.
The Master Servicer and each Servicer, upon request, will
furnish the Trust Administrator with all such information in the possession of
the Master Servicer or such Servicer as may be reasonably required in
connection with the preparation by the Trust Administrator of all tax and
information returns of the Trust Fund, and the Trust Administrator shall sign
such returns. The Master Servicer and each Servicer, severally and not
jointly, shall indemnify the Trust Administrator for all reasonable costs,
including legal fees and expenses, related to errors in such tax returns due
to errors only in information provided by the Master Servicer or by such
Servicer.
SECTION 10.13 Filings.
The Trust Administrator shall, on behalf of the Trust, 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 Master Servicer and each Servicer
shall timely provide to the Trust Administrator all material information
requested by the Trust Administrator and reasonably available to them which is
required to be included in such reports.
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The Trust Administrator shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to
the Trust Administrator's inability or failure to obtain any information not
resulting from its own negligence or willful misconduct.
SECTION 10.14 Determination of Certificate Index.
On each Interest Determination Date, the Trust Administrator
shall determine the Certificate Index for the Accrual Period and inform the
Master Servicer and each Servicer of such rate.
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ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or
Repurchase of all Mortgage Loans.
The obligations and responsibilities of the Master Servicer, the
Special Servicer or the Servicers, the Sellers, the Depositor, the Trustee and
the Trust Administrator created hereby with respect to the Trust Fund created
hereby shall terminate with respect to the applicable Loan Group upon the
earlier of:
(i) with respect to Loan Group I, the repurchase by Olympus at
its election, of all Group I Mortgage Loans and all property
acquired in respect of any remaining Group I Mortgage Loan, which
repurchase right Olympus may exercise at its sole and exclusive
election as of any Distribution Date (such applicable Distribution
Date with respect to Loan Group I being herein referred to as the
"Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Group I Mortgage Loans at the
time of the repurchase is less than 5% of the aggregate Principal
Balance of the Group I Mortgage Loans as of the Cut-off Date;
(ii) with respect to Loan Group II, the repurchase by Olympus
at its election, of all Group II Mortgage Loans and all property
acquired in respect of any remaining Group II Mortgage Loan, which
repurchase right Olympus may exercise at its sole and exclusive
election as of any Distribution Date (such applicable Distribution
Date with respect to Loan Group II, being herein referred to as the
"Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Group II Mortgage Loans, at the
time of the repurchase is less than 5% of the aggregate Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date; and
(iii) the later of (i) twelve months after the maturity of the
last Mortgage Loan remaining in the Trust Fund, (ii) the 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 (iii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement.
In no event shall the trust created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor
of the descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United
States to Great Britain, living on the date of execution of this Agreement or
(ii) the Distribution Date in February 2032.
The Mortgage Loan Purchase Price for any such Optional
Termination shall be equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan in the applicable Loan Groups (other than in
respect of REO Property) plus accrued and unpaid interest thereon from the
date to which such interest was paid or advanced at the sum of the applicable
Mortgage Rate, to but not including the Due Date in the month of the final
Distribution Date (or the Net Mortgage Rate with respect to any Mortgage Loan
currently serviced by the entity
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exercising such Optional Termination) and (ii) with respect to any REO
Property, 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 in the related Loan Groups
related to any REO Property, in each case and (iii) any remaining unreimbursed
Advances, Servicing Advances and Servicing Fees. The Trust Administrator shall
give notice to the Rating Agencies of election to purchase the Mortgage Loans
pursuant to this Section 11.01 and of the Optional Termination Date.
SECTION 11.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section
11.01, Olympus shall, at least twenty days prior to the date notice is to be
mailed to the affected Certificateholders notify the Trustee and Trust
Administrator of such Optional Termination Date and of the applicable purchase
price of the Mortgage Loans to be purchased.
(b) Any purchase of the Mortgage Loans by Olympus shall be made
on an Optional Termination Date by deposit of the applicable purchase price
into the Certificate Account, as applicable, before the Distribution Date on
which such repurchase is effected. Upon receipt by the Trust Administrator of
an Officer's Certificate of Olympus certifying as to the deposit of such
purchase price into the Certificate Account, the Trust Administrator and each
co-trust administrator and separate trust administrator, if any, then acting
as such under this Agreement, shall, upon request and at the expense of
Olympus execute and deliver all such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably requested by Olympus to
vest title in Olympus in the Mortgage Loans so purchased and shall transfer or
deliver to Olympus the purchased Mortgage Loans. Any distributions on the
Mortgage Loans which have been subject to an Optional Termination received by
the Trustee subsequent to (or with respect to any period subsequent to) the
Optional Termination Date shall be promptly remitted by it to Olympus.
(c) Notice of the Distribution Date on which the Master Servicer
or a Servicer anticipates that the final distribution shall be made (whether
upon Optional Termination or otherwise), shall be given promptly by the Master
Servicer or such Servicer to the Trust Administrator and by the Trust
Administrator by first class mail to Holders of the affected Certificates.
Such notice shall be mailed no earlier than the 15th day and not later than
the 10th day preceding the Optional Termination Date or date of final
distribution, as the case may be. Such notice shall specify (i) the
Distribution Date upon which final distribution on the affected Certificates
will be made upon presentation and surrender of such Certificates at the
office or agency therein designated, (ii) the amount of such final
distribution and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, such distribution being made only upon
presentation and surrender of such Certificates at the office or agency
maintained for such purposes (the address of which shall be set forth in such
notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trust Administrator shall give a
second written notice to the remaining such Certificateholders to
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surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within six months after the second
notice all the Certificates shall not have been surrendered for cancellation,
the Trust Administrator 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 subject to the Trust Fund.
(e) Notwithstanding anything to the contrary herein, the
occurrence of an Optional Termination shall be subject to, and shall in no way
adversely affect, the right of WMMSC to continue servicing and collecting its
Servicing Fee for any WMMSC Serviced Mortgage Loan that remains outstanding at
the time of such Optional Termination.
SECTION 11.03 Additional Termination Requirements.
(a) In the event Olympus exercises its purchase option pursuant
to Section 11.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee have received an Opinion
of Counsel to the effect that the failure to comply with the requirements of
this Section will not (i) result in the imposition of taxes on a "prohibited
transaction" of the REMIC, as described in Section 860F of the Code, or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date set
forth in the notice given by the Olympus under Section 11.02, the
Holder of the Class AR Certificates shall adopt a plan of complete
liquidation of the REMIC; and
(ii) at or after the time of adoption of any such plan of
complete liquidation for the Trust Fund at or prior to the final
Distribution Date, the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash; provided, however, that in the
event that a calendar quarter ends after the time of adoption of
such a plan of complete liquidation but prior to the final
Distribution Date, the Trustee shall not sell any of the assets of
the Trust Fund prior to the close of that calendar quarter.
(b) By its acceptance of a Class AR Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to take
such other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trust Administrator and the Trustee, without the consent of any
of the Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of the Trust Fund as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that
would be a claim against the Trust Fund, provided that the Trustee
has received an Opinion of Counsel to the effect that (A) such
action is necessary or desirable to maintain such qualification or
to avoid or minimize the risk of the imposition of any such tax and
(B) such action will not adversely affect the status of the Trust
Fund as a REMIC or adversely affect in any material respect the
interests of any Certificateholder,
(iv) in connection with the appointment of a successor
servicer, to modify, eliminate or add to any of the servicing
provisions, provided the Rating Agencies confirm the rating of the
Certificates; or
(v) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that
such action shall not adversely affect in any material respect the
interests of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3% of
the Voting Rights of all the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
the Certificates; provided, however, that no such amendment may (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on or with respect to Mortgage Loans are required to be
distributed with respect to any Certificate without the consent of the Holder
of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of a Class of Certificates in a manner other than as
set forth in (i) above without the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Voting Rights of such Class, (iii)
reduce the aforesaid percentages of Voting Rights, the holders of which are
required to consent to any such
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amendment without the consent of 100% of the Holders of Certificates of the
Class affected thereby, (iv) change the percentage of the Stated Principal
Balance of the Mortgage Loans specified in Section 11.01(a) relating to
optional termination of the Trust Fund or (v) modify the provisions of this
Section 12.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. 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 Trust Administrator may prescribe.
(c) Promptly after the execution of any amendment to this
Agreement, the Trust Administrator shall furnish written notification of the
substance of such amendment to each Certificateholder, and the Rating
Agencies.
(d) Prior to the execution of any amendment to this Agreement,
each of the Trustee and the Trust Administrator shall receive and be entitled
to conclusively rely on an Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that the execution of such amendment is
authorized and permitted by this Agreement. The Trustee and the Trust
Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's or the Trust Administrator's own rights,
duties or immunities under this Agreement.
SECTION 12.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) 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
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. Such recordation, if any, shall be effected by
the related Servicer at its expense.
(b) 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 12.03 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.
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SECTION 12.04 Intention of Parties.
(a) It is the express intent of the Depositor, the Sellers, the
Master Servicer, the Servicers, the Special Servicer, the Trust Administrator
and the Trustee that (i) the conveyance by GreenPoint of the GreenPoint
Mortgage Loans to DLJMC and (ii) the conveyance by DLJMC of the Mortgage Loans
to the Depositor pursuant to the Assignment and Assumption Agreement and (ii)
the conveyance by the Depositor to the Trustee as provided for in Section 2.01
of each of the Seller' and Depositor's right, title and interest in and to the
Mortgage Loans be, and be construed as, an absolute sale and assignment by
GreenPoint to DLJMC of the GreenPoint Mortgage Loans and by DLJMC to the
Depositor and by the Depositor to the Trustee of the Mortgage Loans for the
benefit of the Certificateholders. Further, it is not intended that any
conveyance be deemed to be a pledge of the Mortgage Loans by GreenPoint to
DLJMC, or by DLJMC to the Depositor or by the Depositor to the Trustee to
secure a debt or other obligation. However, in the event that the Mortgage
Loans are held to be property of GreenPoint, DLJMC or the Depositor, as
applicable, or if for any reason the Assignment and Assumption Agreement or
this Agreement is held or deemed to create a security interest in the Mortgage
Loans, then it is intended that (i) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; (ii) the conveyances provided for in Section 2.01
shall be deemed to be a grant by the Sellers and the Depositor to the Trustee
on behalf of the Certificateholders, to secure payment in full of the Secured
Obligations (as defined below), of a security interest in all of the Sellers'
and the Depositor's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, and all
accounts, contract rights, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and uncertificated securities consisting of, arising
from or relating to (A) the Mortgage Loans, including with respect to each
Mortgage Loan, the Mortgage Note and related Mortgage, and all other documents
in the related Trustee Mortgage Files, and including any Qualified Substitute
Mortgage Loans; (B) pool insurance policies, hazard insurance policies and any
bankruptcy bond relating to the foregoing, if applicable; (C) the Certificate
Account; (D) the Collection Account; (E) all amounts payable after the Cut-off
Date to the holders of the Mortgage Loans in accordance with the terms
thereof; (F) all income, payments, proceeds and products of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from time to time
held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; and (G) all cash and non-cash
proceeds of any of the foregoing; (iii) the possession by the Trustee or any
other agent of the Trustee of Mortgage Notes or such other items of property
as constitute instruments, money, documents, advices of credit, letters of
credit, goods, certificated securities or chattel paper shall be deemed to be
a "possession by the secured party", or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-313, 8-313 or 8-321 thereof); and (iv) 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,
securities intermediaries, bailees or agents (as
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applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. "Secured Obligations" means (i) the rights of
each Certificateholder to be paid any amount owed to it under this Agreement
and (ii) all other obligations of the Sellers and the Depositor under this
Agreement and the Assignment and Assumption Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's
direction, the Master Servicer or the Servicers, the Trustee and the Trust
Administrator, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority as applicable. The Depositor
shall prepare and file, at the related Servicer's expense, all filings
necessary to maintain the effectiveness of any original filings necessary
under the Uniform Commercial Code as in effect in any jurisdiction to perfect
the Trustee's security interest in or lien on the Mortgage Loans, including
without limitation (i) continuation statements, and (ii) such other statements
as may be occasioned by any transfer of any interest of the Master Servicer or
any Servicer or the Depositor in any Mortgage Loan.
SECTION 12.05 Notices.
In addition to other notices provided under this Agreement, the
Trust Administrator shall notify the Rating Agencies in writing: (a) of any
substitution of any Mortgage Loan; (b) of any payment or draw on any insurance
policy applicable to the Mortgage Loans; (c) of the final payment of any
amounts owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when received (i) in the
case of the Depositor, Credit Suisse First Boston Mortgage Securities Corp.,
00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; (ii) in the
case of the Trustee, the Corporate Trust Office, or such other address as may
hereafter be furnished to the Depositor in writing by the Trustee; (iii) in
the case of CMMC, 0000 Xxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx
00000, or such other address as may be hereafter furnished to the Depositor
and the Trustee by CMMC in writing and (iv) in the case of DLJMC, 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx
(with a copy to DLJ Mortgage Acceptance Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the General Counsel), or such
other address as may be hereafter furnished to the Depositor and the Trustee
by DLJMC in writing, (v) in the case of, WMMSC, 1201 Third Avenue, WMT 1706,
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Servicing Compliance, with a copy to
Washington Mutual Legal Department, 1201 Third Avenue, WMT 1706, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: WMMSC or such other address as may be hereafter
furnished in writing to the Depositor and the Trustee by WMMSC, (vi) in the
case of GreenPoint, (if in its capacity as a Seller) to GreenPoint Mortgage
Funding, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxx, (vii) in the case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxxxxx; (viii) in
the case of Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (ix) in the case of
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Olympus, Olympus Servicing, L.P., 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000-X, Xxxxxx,
Xxxxx, Attention: Xxxx Xxxx; and (x) in the case of the Trust Administrator,
the Corporate Trust Office. Notices to Certificateholders shall be deemed
given when mailed, first class postage prepaid.
SECTION 12.06 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 12.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal 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 Fund, 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 Trust
Administrator a written notice of an Event of Default and of the continuance
thereof, as provided herein, 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 upon the Trust Administrator to institute such
action, suit or proceeding in its own name as Trust Administrator hereunder
and shall have offered to the Trust Administrator such reasonable indemnity as
it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Trust Administrator, 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 Trust Administrator, 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
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provisions of this Section 12.07, each and every Certificateholder and the
Trust Administrator shall be entitled to such relief as can be given either at
law or in equity.
SECTION 12.08 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 Trust Administrator pursuant to this Agreement,
are and shall be deemed fully paid.
SECTION 12.09 Protection of Assets.
Except for transactions and activities entered into in
connection with the securitization that is the subject of this agreement, the
trust created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
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IN WITNESS WHEREOF, the Depositor, the Sellers, the Master
Servicer, the Servicers, the Special Servicer, the Trustee and the Trust
Administrator have caused their names to be signed hereto by their respective
officers thereunto duly authorized all as of the first day of January 2002.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
DLJ MORTGAGE CAPITAL, INC.,
as a Seller
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CHASE MANHATTAN MORTGAGE CORPORATION,
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
GREENPOINT MORTGAGE FUNDING, INC.,
as a Seller and a Servicer
By: /s/ Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
OLYMPUS SERVICING, L.P.,
as a Servicer and Special Servicer
By: /s/ Xxxx Xxxx
------------------------------------------------
Name: Xxxx Xxxx
Title: President
139
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Seller and a Servicer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X. Xxxxx
------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK,
as Trust Administrator
By: /s/ Xxxxxxx Xxxx
------------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this 31st day of January 2002, before me, personally appeared
Xxxxx Xxxxxxxx, known to me to be a Vice President of Credit Suisse First
Boston Mortgage Securities Corp., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx Xxxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 31st day of January 2002, before me, personally appeared
Vice President, known to me to be a Xxxxx Xxxxxx of DLJ Mortgage Capital,
Inc., one of the corporations that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx Xxxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF WASHINGTON )
: ss.:
COUNTY OF KING )
On the 28th day of January 2002, before me, personally appeared
Xxxxxxx X. Xxxxxx, known to me to be a Vice President of Washington Mutual
Mortgage Securities Corp., one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 31st of January 2002 before me, a Notary Public in and
for said State, personally appeared Xxxx X. Xxxxx known to me to be a
Vice President of Bank One, National Association, the national banking
association that executed the within instrument and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF FLORIDA )
: ss.:
COUNTY OF BROWARD )
On the 29th of January 2002 before me, a Notary Public in and
for said State, personally appeared Xxxxxx X. Xxxxxx known to me to be a
Vice President of The Chase Manhattan Mortgage Corporation, the New Jersey
corporation that executed the within instrument and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 31st of January 2002 before me, a Notary Public in and
for said State, personally appeared Xxxx Xxxx known to me to be a
President of Olympus Servicing L.P., the Delaware limited partnership that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF MARIN )
On the 28th of January 2002 before me, a Notary Public in and
for said State, personally appeared Xxxxxxx Xxxxx known to me to be a Senior
Vice President of GreenPoint Mortgage Funding, Inc., the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 31st of January 2002 before me, a Notary Public in and
for said State, personally appeared Xxxxxxx Xxxx known to me to be a
Vice President of JPMorgan Chase Bank, a New York banking corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF CLASS A 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. :
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
A-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class [__]-A
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 adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
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 does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are 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 (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), GreenPoint Mortgage
Funding, Inc., as a seller (in such capacity, a "Seller"), and as a servicer
(in such capacity, a "Servicer"), Washington Mutual Mortgage Securities Corp.,
in its capacity as a servicer (in such capacity, a "Servicer"), Olympus
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), Bank One,
National Association, as trustee (the "Trustee") and JPMorgan Chase Bank, as
trust administrator (the "Trust Administrator"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
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 Trust Administrator.
A-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By _____________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class [__]-A
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
A-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
A-6
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 or the disposition of all property in respect
thereof 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 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.
A-7
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
A-8
EXHIBIT B
[FORM OF CLASS M 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.
B-1
Certificate No. :
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
B-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class [__]-M-[__]
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 adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
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 does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are 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 (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), GreenPoint Mortgage
Funding, Inc., as a seller (in such capacity, a "Seller"), and as a servicer
(in such capacity, a "Servicer"), Washington Mutual Mortgage Securities Corp.,
as a servicer (in such capacity, a "Servicer"), Olympus Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), Bank One, National Association, as trustee
(the "Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
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 Trust Administrator.
B-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By __________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
B-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class [__]-M-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
B-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
B-6
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 or the disposition of all property in respect
thereof 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 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.
B-7
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
B-8
EXHIBIT C
[FORM OF CLASS I-B CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[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.]
FOR CLASSES I-B-4, I-B-5 AND I-B-6 ONLY: [PURSUANT TO SECTION 6.02(f) OF THE
AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR (I) 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 NOR A PERSON ACTING
ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE PURCHASER IS AN INSURANCE
COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THE
REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT FURNISHED, SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST ADMINISTRATOR BY
THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY BENEFICIAL OWNER
WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT
THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE
TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR USING A PLAN'S ASSETS IS
ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL
DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE
SHALL BE VOID AND OF NO EFFECT.]
C-1
Certificate No. :
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
C-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class I-B-[__]
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 adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are 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 (in such capacity, the "Seller"), Chase Manhattan Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"),
GreenPoint Mortgage Funding, Inc., as a seller (in such capacity, a "Seller"),
and as a servicer (in such capacity, a "Servicer"), Washington Mutual Mortgage
Securities Corp., as a servicer (in such capacity, a "Servicer"), Olympus
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), Bank One,
National Association, as trustee (the "Trustee") and JPMorgan Chase Bank, as
trust administrator (the "Trust Administrator"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
No transfer of this 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 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 Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit M or Exhibit N-1 or Exhibit
N-2 to the Agreement or
C-3
(ii) there shall be delivered to the Trust Administrator at the expense of the
transferor an Opinion of Counsel that such transfer may be made pursuant to an
exemption from the Securities Act. 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 and the
Trust Administrator an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. The Holder hereof desiring
to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Trust Administrator 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.
[For Classes I-B-4, I-B-5 and I-B-6 only:] [Pursuant to Section 6.02(f)
of the Agreement, no transfer of this Certificate shall be made unless the
Trustee and the Trust Administrator shall have received either (i) a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trust Administrator, 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, the Trust Administrator or the Trust Fund, (ii) if the
purchaser is an insurance company and the Certificate has been the subject of
an ERISA-Qualifying Underwriting, 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 Sections I and
III of PTCE 95-60 or (iii) in the case of any such 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 Trust Administrator to the
effect that the purchase or holding of such 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 Depositor, the Trustee, the Trust Administrator, the Master Servicer or
the Servicers or the Special Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund. In the event the
representations referred to in the preceding sentence are not furnished, such
representation shall be deemed to have been made to the trustee by the
transferee's acceptance of this certificate, or by any beneficial owner who
purchases an interest in this certificate in book-entry form. In the event
that a representation is violated, or any attempt to transfer this certificate
to a plan or person acting on behalf of a plan or using a plan's assets is
attempted without the delivery to the trustee of the opinion of counsel
described above, the attempted transfer or acquisition of this certificate
shall be void and of no effect.]
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.
C-4
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 Trust Administrator.
C-5
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By _________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
C-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class I-B-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
C-7
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
C-8
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 or the disposition of all property in respect
thereof 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 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.
C-9
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-10
EXHIBIT D
[FORM OF CLASS II-B 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.
D-1
Certificate No. :
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
D-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class II-B
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 adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
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 does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are 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 (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), GreenPoint Mortgage
Funding, Inc., as a seller (in such capacity, a "Seller"), and as a servicer
(in such capacity, a "Servicer"), Washington Mutual Mortgage Securities Corp.,
as a servicer (in such capacity, a "Servicer"), Olympus Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), Bank One, National Association, as trustee
(the "Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
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 Trust Administrator.
D-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
D-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class II-B
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
D-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
D-6
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 or the disposition of all property in respect
thereof 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 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.
D-7
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
D-8
EXHIBIT E
[FORM OF CLASS AR 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 TRUST ADMINISTRATOR 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 TRUST ADMINISTRATOR EITHER (A) 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 NOR A PERSON ACTING
ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (B) IF THE TRANSFEREE IS AN INSURANCE
COMPANY, A REPRESENTATION THAT THE TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS THAT TERM IS DEFINED IN SECTION V(e) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, OR PTCE 95-60, AND THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (C) 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 TRUST ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
E-1
Certificate No. : [1][2]
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Pass-Through Rate :
Maturity Date :
E-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class AR
evidencing a percentage interest in the distributions allocable to the
Class AR Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable rate conventional mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties.
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 does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trustee or the Trust Administrator referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that Credit Suisse First Boston Corporation, 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 (in such capacity, the "Seller"), Chase Manhattan Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"),
GreenPoint Mortgage Funding, Inc., as a seller (in such capacity, a "Seller"),
and as a servicer (in such capacity, a "Servicer"), Washington Mutual Mortgage
Securities Corp., as a servicer (in such capacity, a "Servicer"), Olympus
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), Bank One,
National Association, as trustee (the "Trustee") and JPMorgan Chase Bank, as
trust administrator (the "Trust Administrator"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trust Administrator in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such
E-3
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,
the Trust Administrator or the Trust Fund or (ii) if the transferee is an
insurance company, a representation that the transferee is an insurance
company which is purchasing this certificate with funds contained in an
"insurance company general account," as that term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60, or PTCE 95-60, and that the
purchase and holding of this certificate are covered under Sections I and II
of PTCE 95-60, or (iii) in the case of any such Class AR 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 Trust Administrator to the
effect that the purchase or holding of such Class AR 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 Depositor, the Trustee, the Trust Administrator, the
Master Servicer or the Servicers or the Special Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Trust Administrator or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Class AR 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
Trust Administrator as described above shall be void and of no effect.
Each Holder of this Class AR 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 AR Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class AR Certificate may be transferred without
delivery to the Trust Administrator of a transfer affidavit of the initial
owner or the proposed transferee in the form described in the Agreement, (iii)
each person holding or acquiring any Ownership Interest in this Class AR
Certificate must agree to require a transfer affidavit from any other person
to whom such person attempts to Transfer its Ownership Interest in this Class
AR Certificate as required pursuant to the Agreement, (iv) each person holding
or acquiring an Ownership Interest in this Class AR Certificate must agree not
to transfer an Ownership Interest in this Class AR 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 AR 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 Trust Administrator.
E-4
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
E-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
E-6
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
E-7
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 or the disposition of all property in respect
thereof 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 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.
E-8
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
E-9
EXHIBIT F
[Reserved]
F-1
EXHIBIT G
[FORM OF CLASS II-X 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 IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
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.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUST
ADMINISTRATOR (I) 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 NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR
USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II)
IF THE PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE
SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
IN THE EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST
ADMINISTRATOR BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR
USING A PLAN'S ASSETS IS ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE
OPINION OF COUNSEL DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF
THIS CERTIFICATE SHALL BE VOID AND OF NO EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
G-1
Certificate No. :
Cut-off Date : January 1, 2002
First Distribution Date : February 25, 2002
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
G-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class II-X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class II-X Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are 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 (in such capacity, the "Seller"), Chase Manhattan Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"),
GreenPoint Mortgage Funding, Inc., as a seller (in such capacity, a "Seller"),
and as a servicer (in such capacity, a "Servicer"), Washington Mutual Mortgage
Securities Corp., as a servicer (in such capacity, a "Servicer"), Olympus
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), Bank One,
National Association, as trustee (the "Trustee") and JPMorgan Chase Bank, as
trust administrator (the "Trust Administrator"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
No transfer of this 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 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 Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit M or Exhibit N-1 or Exhibit
N-2 to the Agreement or
G-3
(ii) there shall be delivered to the Trust Administrator at the expense of the
transferor an Opinion of Counsel that such transfer may be made pursuant to an
exemption from the Securities Act. 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 and the
Trust Administrator an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. The Holder hereof desiring
to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Trust Administrator 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.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee and the Trust Administrator shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the Trust
Administrator, 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, the Trust Administrator or the Trust
Fund, (ii) if the purchaser is an insurance company and the Certificate has
been the subject of an ERISA-Qualifying Underwriting, 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 Sections I and III of PTCE 95-60 or (iii) in the case of any
such 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 Trust
Administrator to the effect that the purchase or holding of such 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 Depositor, the Trustee, the Trust Administrator,
the Master Servicer or the Servicers or the Special Servicer to any obligation
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the trustee by the transferee's acceptance of this certificate, or by any
beneficial owner who purchases an interest in this certificate in book-entry
form. In the event that a representation is violated, or any attempt to
transfer this certificate to a plan or person acting on behalf of a plan or
using a plan's assets is attempted without the delivery to the trustee of the
opinion of counsel described above, the attempted transfer or acquisition of
this certificate shall be void and of no effect.
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.
G-4
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 Trust Administrator.
G-5
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: January 31, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
G-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2
Class II-X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR2, 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 neither the Trustee nor the Trust Administrator is
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 and the Trust Administrator.
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 (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar 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 Trust Administrator 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, the Trust Administrator and the
G-7
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator 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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
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 Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Sellers, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 5% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date,
Olympus will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of such
Mortgage Loans at a purchase price determined as provided in the Agreement. On
any Distribution Date on which the aggregate Stated Principal Balance of the
Group II Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the Cut-off Date, Olympus will
have the option to repurchase, in whole, from the Trust Fund all remaining
Group II Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Agreement. In the
event that
G-8
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 or the disposition of all property in respect
thereof 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 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-9
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 Trust Administrator 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 ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
G-10
EXHIBIT H
FORM OF SERVICER INFORMATION
The following information will be e-mailed to Trust Administrator in
accordance with Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Deficient Valuation,
Debt Reduction)
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
[name]
JPMorgan Chase Bank
[address]
Phone No. [________]
Fax No. [________]
[email]
H-1
EXHIBIT I
[RESERVED]
I-1
EXHIBIT J
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [__________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Trustee, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, it has (a) received an original Mortgage Note with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule and (b) received an
original Mortgage (or a certified copy thereof) with respect to each Mortgage
Loan listed on the Mortgage Loan Schedule in accordance with Section 2.01 of
the Pooling and Servicing Agreement. The Trustee has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically mentioned above. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the documents delivered in accordance with Section 2.01 of the Pooling and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Authorized Representative
J-1
EXHIBIT K
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [___________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as Trustee,
hereby certifies that, except for the exceptions noted on the schedule
attached hereto, as to each Mortgage Loan listed in the Mortgage Loan Schedule
it has reviewed the Mortgage File and has determined that (based solely on its
review of each such documents on its face) (i) all documents described in
clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing Agreement are
in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged, defaced, torn or otherwise physically altered and
such documents relate to such Mortgage Loan and (iii) each Mortgage Note has
been endorsed and each assignment of Mortgage has been delivered as provided
in Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made
no independent examination of any documents required to be delivered in
accordance with Section 2.01 of the Pooling and Servicing Agreement beyond the
review specifically required therein. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents required to be delivered in accordance with Section 2.01
of the Pooling and Servicing Agreement or any of the Mortgage Loans identified
on the Mortgage Loan Schedule, or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Authorized Representative
K-2
EXHIBIT L
FORM OF REQUEST FOR RELEASE
[date]
To: Bank One, National Association
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of January
1, 2002, among the Depositor, DLJ Mortgage Capital, Inc., as seller (in such
capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), GreenPoint Mortgage
Funding, Inc., as a seller (in such capacity, a "Seller"), and as a servicer
(in such capacity, a "Servicer"), Washington Mutual Mortgage Securities Corp.,
as a servicer (in such capacity, a "Servicer"), Olympus Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), Bank One, National Association, as trustee
(the "Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator") (the "Pooling and Servicing Agreement"), the undersigned
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited to
the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price has been
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
7paid in full or repurchased (in which case the Mortgage File will be retained
by us permanently) when no longer required by us for such purpose.
L-1
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By:
----------------------------------
Name:
Title:
L-2
EXHIBIT M
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
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 AR Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
---------------------------
Print Name of Transferor
By:
------------------------------
Authorized Officer
M-1
EXHIBIT N-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
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,
we are 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 Sections I and III
of PTCE 95-60, (e) 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 Certificates in accordance with clause (g) below), (f) 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 (g) 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
N-1-1
(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
N-1-2
EXHIBIT N-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
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) 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 using the assets of any such plan or
arrangement to effect such acquisition, or (ii) 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 Sections I and III of PTCE 95-60, (e) 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 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, (f) 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, (g) 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
N-2-1
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
N-2-2
EXHIBIT O
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on
behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code"), (ii)
will endeavor to remain other than a disqualified organization for so long as
it retains its ownership interest in the Class AR Certificates, and (iii) is
acquiring the Class AR Certificates for its own account. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class AR Certificates to disqualified organizations under the
Code; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of 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, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class AR Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a
O-1
"pass through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class AR Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the
face of the Class AR Certificates and the provisions of Section 6.02 of the
Pooling and Servicing Agreement under which the Class AR Certificates were
issued. The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class AR Certificates
will only be owned, directly or indirectly, by an Owner that is a Permitted
Transferee.
8. That the Owner's Taxpayer Identification Number is
________________.
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or
an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
10. That no purpose of the Owner relating to the purchase of the
Class AR Certificate by the Owner is or will be to impede the assessment or
collection of tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class
AR Certificate by the Owner will be to impede the assessment or collection of
tax.
14. The Owner hereby agrees to cooperate with the Trustee and to
take any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the
REMIC status of the Trust Fund.
15. That the Owner
O-2
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate
with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within
the meaning of Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
16. The Owner hereby agrees that it will not take any action that
could endanger the REMIC status of the Trust Fund or result in the imposition
of tax on the Trust Fund unless counsel for, or acceptable to, the Trustee has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Residual Certificates to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By:
----------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
O-3
Subscribed and sworn before me this _____ day of
_______________________.
_______________________________________
NOTARY PUBLIC
COUNTY OF______________________________
STATE OF_______________________________
My Commission expires the _____day of
__________________, 20____.
O-4
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, Class AR (the "Certificates")
-----------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of January 1, 2002, among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
"Seller"), Chase Manhattan Mortgage Corporation, as master servicer (in such
capacity, the "Master Servicer"), GreenPoint Mortgage Funding, Inc., as a
seller (in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a servicer (in
such capacity, a "Servicer"), Olympus Servicing, L.P., as a servicer (in such
capacity, a "Servicer") and the special servicer (in such capacity, the
"Special Servicer"), Bank One, National Association, as trustee (the
"Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). All terms used herein and not otherwise defined shall have
the meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit O. The Seller does not know or believe that
any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
P-1
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due, and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By:
---------------------------------------
Name:
Title:
P-2
EXHIBIT Q-1
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
Q-1-1
EXHIBIT Q-2
FORM OF ESCROW ACCOUNT LETTER
[On file]
Q-2-1
EXHIBIT R-1
FORM OF COLLECTION ACCOUNT CERTIFICATE
[On file]
X-0-0
XXXXXXX X-0
FORM OF COLLECTION ACCOUNT LETTER
[On file]
R-2-1
SCHEDULE I
Mortgage Loan Schedule
(Provided Upon Request)
I-1
SCHEDULE IIA
Representations and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIA to the Depositor, the Trustee
and the Trust Administrator, as of the Closing Date, or if so specified
herein, as of the Cut-off Date or such other date as may be specified.
Capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement dated as of January 1, 2002
(the "Agreement") among Credit Suisse First Boston Mortgage Securities Corp.,
as the depositor, DLJ Mortgage Capital, Inc., as seller, Chase Manhattan
Mortgage Corporation, as master servicer, GreenPoint Mortgage Funding, Inc.,
as a seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
servicer, Olympus Servicing, L.P., as a servicer and special servicer,
JPMorgan Chase Bank, as trust administrator and Bank One, National
Association, as trustee.
(i) DLJMC is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
(ii) DLJMC 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 DLJMC of this Agreement have
been duly authorized by all necessary corporate action on the part of
DLJMC; 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
DLJMC or its properties or the certificate of incorporation or by-laws of
DLJMC, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on DLJMC's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by DLJMC 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 DLJMC
and, assuming due authorization, execution and delivery by the Trustee,
the Trust Administrator, the Master Servicer, the Servicers, the Special
Servicer and the Depositor, constitutes a valid and binding obligation of
DLJMC 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
IIA-1
(vi) to the knowledge of DLJMC, there are no actions, litigation,
suits or proceedings pending or threatened against DLJMC 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 DLJMC if
determined adversely to DLJMC would reasonably be expected to materially
and adversely affect DLJMC's ability to perform its obligations under
this Agreement; and DLJMC 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.
(vii) to the knowledge of DLJMC, (i) no mortgage loan in the
mortgage pool or in any of the loan groups contemplated under the terms
of this Agreement was subject to the Home Ownership and Equity Protection
Act of 1994 or any comparable state law, (ii) no proceeds from any
mortgage loan in the mortgage pool or in any of the loan groups
contemplated under the terms of this Agreement were used to finance
single-premium credit insurance policies, (iii) the Servicers for each
mortgage loan in the mortgage pool or in any of the loan groups
contemplated under the terms of this Agreement will accurately and fully
report its borrower credit files to all three credit repositories in a
timely manner, and (iv) no mortgage loan in the mortgage pool or in any
of the loan groups contemplated under the terms of this Agreement will
impose a prepayment premium for a term in excess of five years.
IIA-2
SCHEDULE IIB
Representations and Warranties of Master Servicer -
Chase Manhattan Mortgage Corporation
CMMC, in its capacity as Master Servicer, hereby makes the
representations and warranties set forth in this Schedule IIB to the
Depositor, the Trustee, the Trust Administrator and WMMSC, as of the Closing
Date, or if so specified herein, as of the Cut-off Date or such other date as
may be specified. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement dated as of
January 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as the depositor, DLJ Mortgage Capital, Inc., as seller,
Chase Manhattan Mortgage Corporation, as master servicer, GreenPoint Mortgage
Funding, Inc., as a seller and a servicer, Washington Mutual Mortgage
Securities Corp., as a servicer, Olympus Servicing, L.P., as a servicer and
special servicer, JPMorgan Chase Bank, as trust administrator and Bank One,
National Association, as trustee.
(viii) CMMC is a limited corporation duly formed, validly existing
and in good standing and is qualified under the laws of each state where
required by applicable law or is otherwise exempt under applicable law
from such qualification.
(ix) CMMC has all requisite corporate power, authority and capacity
to enter into the Agreement and to perform the obligations required of it
thereunder. The Agreement (assuming the due authorization and execution
of the Agreement by the other parties thereto) constitutes a valid and
legally binding agreement of CMMC enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
(x) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of CMMC or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which CMMC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to CMMC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over CMMC.
(xi) There is no action, suit, proceeding or investigation pending,
or to CMMC's knowledge threatened, against CMMC before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by CMMC of its obligations under, or the
validity or enforceability of, the Agreement.
(xii) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the
IIB-1
execution, delivery and performance by CMMC of the Agreement or the
consummation of the transactions contemplated by the Agreement.
IIB-2
SCHEDULE IIC
Representations and Warranties of Servicer - GreenPoint Mortgage Funding, Inc.
GreenPoint, in its capacity as Seller and Servicer, hereby makes the
representations and warranties set forth in this Schedule IIC to the
Depositor, the Trustee, the Trust Administrator and the Master Servicer, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of January 1, 2002 (the "Agreement") among Credit Suisse
First Boston Mortgage Securities Corp., as the depositor, DLJ Mortgage
Capital, Inc., as seller, Chase Manhattan Mortgage Corporation, as master
servicer, GreenPoint Mortgage Funding, Inc., as a seller and a servicer,
Washington Mutual Mortgage Securities Corp., as a servicer, Olympus Servicing,
L.P., as a servicer and special servicer, JPMorgan Chase Bank, as trust
administrator and Bank One, National Association, as trustee.
(i) GreenPoint is a corporation duly formed, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and
is qualified under the laws of each state where required by applicable
law or is otherwise exempt under applicable law from such qualification.
(ii) GreenPoint has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due authorization
and execution of the Agreement by the other parties thereto) constitutes
a valid and legally binding agreement of GreenPoint enforceable in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, moratorium, reorganization and similar laws,
and by equitable principles affecting the enforceability of the rights of
creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of GreenPoint or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which GreenPoint is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to GreenPoint of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over GreenPoint.
(iv) There is no action, suit, proceeding or investigation pending,
or to GreenPoint's knowledge threatened, against GreenPoint before any
court, administrative agency or other tribunal (a) asserting the
invalidity of the Agreement, (b) seeking to prevent the consummation of
any of the transactions contemplated thereby or (c) which might
materially and adversely affect the performance by GreenPoint of its
obligations under, or the validity or enforceability of, the Agreement.
IIC-1
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by
GreenPoint of the Agreement or the consummation of the transactions
contemplated by the Agreement.
IIC-2
SCHEDULE IID
Representations and Warranties of Servicer -
Washington Mutual Mortgage Securities Corp.
WMMSC, in its capacity as Servicer, hereby makes the representations
and warranties set forth in this Schedule IID to the Depositor, the Trustee,
the Trust Administrator and the Master Servicer, as of the Closing Date, or if
so specified herein, as of the Cut-off Date or such other date as may be
specified. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement dated as of
January 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as the depositor, DLJ Mortgage Capital, Inc., as seller,
Chase Manhattan Mortgage Corporation, as master servicer, GreenPoint Mortgage
Funding, Inc., as a seller and a servicer, Washington Mutual Mortgage
Securities Corp., as a servicer, Olympus Servicing, L.P., as a servicer and
special servicer, JPMorgan Chase Bank, as trust administrator and Bank One,
National Association, as trustee.
(vi) WMMSC is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation
and is qualified under the laws of each state where required by
applicable law or is otherwise exempt under applicable law from such
qualification.
(vii) WMMSC has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due authorization
and execution of the Agreement by the other parties thereto) constitutes
a valid and legally binding agreement of WMMSC enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization and similar laws, and
by equitable principles affecting the enforceability of the rights of
creditors.
(viii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of WMMSC or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which WMMSC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to WMMSC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over WMMSC.
(ix) There is no action, suit, proceeding or investigation pending,
or to WMMSC's knowledge threatened, against WMMSC before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by WMMSC of its obligations under, or
the validity or enforceability of, the Agreement.
IID-1
(x) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by WMMSC
of the Agreement or the consummation of the transactions contemplated by
the Agreement.
IID-2
SCHEDULE IIE
Representations and Warranties of Servicer and Special
Servicer- Olympus Servicing, L.P.
Olympus, in its capacities as Servicer and Special Servicer, hereby
makes the representations and warranties set forth in this Schedule IID to the
Depositor, the Trustee, the Trust Administrator and the Master Servicer, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of January 1, 2002 (the "Agreement") among Credit Suisse
First Boston Mortgage Securities Corp., as the depositor, DLJ Mortgage
Capital, Inc., as seller, Chase Manhattan Mortgage Corporation, as master
servicer, GreenPoint Mortgage Funding, Inc., as a seller and a servicer,
Washington Mutual Mortgage Securities Corp., as a servicer, Olympus Servicing,
L.P., as a servicer and special servicer, JPMorgan Chase Bank, as trust
administrator and Bank One, National Association, as trustee.
(i) Olympus Servicing, L.P. ("Olympus") is a limited partnership
duly organized, validly existing and in good standing under the laws of
the state of its formation;
(ii) Olympus 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 Olympus of this Agreement have
been duly authorized by all necessary corporate action on the part of
Olympus; 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
Olympus or its properties or the certificate of incorporation or bylaws
of Olympus, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Olympus's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) this Agreement has been duly executed and delivered by Olympus
and, assuming due authorization, execution and delivery by the Trustee,
DLJMC and the Depositor, constitutes a valid and binding obligation of
Olympus 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 Olympus, there are no actions, litigation,
suits or proceedings pending or threatened against Olympus 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 Olympus if
determined adversely to Olympus would reasonably be expected to
materially and adversely affect Olympus's ability to perform its
IIE-1
obligations under this Agreement, other than as Olympus has previously
advised Seller; and Olympus 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.
(vi) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by
Olympus of the Agreement or the consummation of the transactions
contemplated by the Agreement.
IIE-2
SCHEDULE IIIA
Representations and Warranties of DLJMC - DLJMC Mortgage Loans
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIIA to the Depositor, the Trustee
and the Trust Administrator, as of the Closing Date, or if so specified
herein, as of the Cut-off Date or such other date as may be specified, with
respect to the DLJMC Mortgage Loans identified on Schedule I hereto.
Capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement dated as of January 1, 2002
(the "Agreement") among Credit Suisse First Boston Mortgage Securities Corp.,
as the depositor, DLJ Mortgage Capital, Inc., as seller, Chase Manhattan
Mortgage Corporation, as master servicer, GreenPoint Mortgage Funding, Inc.,
as a seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
servicer, Olympus Servicing, L.P., as a servicer and special servicer,
JPMorgan Chase Bank, as trust administrator and Bank One, National
Association, as trustee. Each reference to a "Mortgage Loan" in this Schedule
IIIA shall mean a DLJMC Mortgage Loan, and each reference to a "Mortgaged
Property" shall mean a Mortgaged Property related to a DLJMC Mortgage Loan.
(i) The information set forth in Schedule I, with respect to the
DLJMC Mortgage Loans, is complete, true and correct in all material
respects;
(ii) With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in
an estate in fee simple in real property securing the related Mortgage
Note. With respect to a Mortgage Loan that is a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in the stock
ownership and leasehold rights associated with the cooperative unit
securing the related Mortgage Note;
(iii) All payments due prior to the Cut-off Date for such Mortgage
Loan have been made as of the Closing Date, the Mortgage Loan is not
delinquent in payment more than 30 days; there are no material defaults
under the terms of the Mortgage Loan. Except for (a) payments in the
nature of escrow payments and (b) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is greater, to the day which precedes by one month the Due Date of the
first installment payment of principal and interest, including, without
limitation, taxes and insurance payments, the Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to
the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan;
(iv) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item
which remains unpaid and which has been assessed but is not yet due and
payable;
IIIA-1
(v) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded or sent for recording to the extent
any such recordation is required by law, or, necessary to protect the
interest of the Purchaser. No other instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in
whole or in part, from the terms thereof except in connection with an
assumption agreement and which assumption agreement is part of the
Mortgage File and the terms of which are reflected in Schedule IA; the
substance of any such waiver, alteration or modification has been
approved by the issuer of any related Primary Mortgage Insurance Policy
and title insurance policy, to the extent required by the related
policies;
(vi) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render the Mortgage Note or Mortgage unenforceable, in whole
or in part, or subject to any right of rescission, set-off, counterclaim
or defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto; and the Mortgagor was not a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan
was originated;
(vii) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the
FNMA Guides, against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the FNMA Guides or by FHLMC, as well
as all additional requirements set forth in Section 4.10 of this
Agreement. All such standard hazard policies are in full force and effect
and on the date of origination contained a standard mortgagee clause
naming the Seller and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as amended, the Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal
Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable
under FNMA or FHLMC guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have been
complied with in all material respects;
(ix) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part nor has
any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
IIIA-2
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor
has the Seller waived any default resulting from any action or inaction
by the Mortgagor;
(x) The Mortgage is a valid, subsisting, enforceable and perfected
first lien on the Mortgaged Property, including for Mortgage Loans that
are not Co-op Loans, all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage and the Mortgage Note do not contain any evidence of any
security interest or other interest or right thereto;
(xi) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject
to bankruptcy, insolvency, moratorium, reorganization and other laws of
general application affecting the rights of creditors and by general
equitable principles. All parties to the Mortgage Note and the Mortgage
had the legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller or the
Mortgagor, or, to the best of the Seller's knowledge, on the part of any
other party involved in the origination of the Mortgage Loan. Except to
the extent the Mortgage Loan is subject to completion escrows which have
been disclosed to the Purchaser and as to which a completed FNMA form 442
has been delivered to the Purchaser within sixty (60) days after the
Closing Date, the proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been satisfied.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage were paid or are in the process of
being paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(xii) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan, except for the assignments of mortgage which
have been sent for recording, and upon recordation the Purchaser or its
designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan to
the Purchaser, the Seller or the Servicer will retain the Mortgage File
or any part thereof with respect thereto not delivered to the Purchaser
or the Purchaser's designee in trust only for the purpose of servicing
and supervising the servicing of the Mortgage Loan. Immediately prior to
the transfer and assignment to the Purchaser on the Closing Date, the
Mortgage Loan, including the Mortgage Note and the Mortgage, were not
subject to an assignment or pledge, and the Seller had good and
marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security interest
and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the Mortgage Loan pursuant to this
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Agreement and following the sale of the Mortgage Loan, the Purchaser will
own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The Seller intends to relinquish all rights to possess, control and
monitor the Mortgage Loan, except for the purposes of servicing the
Mortgage Loan as set forth in this Agreement;
(xiii) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form
of policy or insurance acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of
the related Mortgaged Property) the Seller, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy,
such title insurance policy has been duly and validly endorsed to the
Purchaser or the assignment to the Purchaser of the Seller's interest
therein does not require the consent of or notification to the insurer
and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the
related Mortgage, including the Seller, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and
no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event permitting acceleration; and neither the
Seller nor any prior mortgagee has waived any default, breach, violation
or event permitting acceleration;
(xv) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to or equal to the
lien of the related Mortgage;
(xvi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of the Mortgaged
Property (and wholly within the project with respect to a condominium
unit) except for de minimus encroachments permitted by the FNMA Guide and
which have been noted on the appraisal or the title policy affirmatively
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insures against loss or damage by reason of any violation, variation or
encroachment adverse circumstances which is either disclosed or would
have been disclosed by an accurate survey, and no improvements on
adjoining properties encroach upon the Mortgaged Property except those
which are insured against by the title insurance policy referred to in
clause 0 above or are acceptable under FNMA or FHLMC guidelines and all
improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(xvii) The Mortgage contains the usual and enforceable provisions
for the acceleration of the payment of the unpaid principal amount of the
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(xviii) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. To the best of the Seller's knowledge, there have not been any
condemnation proceedings with respect to the Mortgaged Property and there
are no such proceedings scheduled to commence at a future date;
(xix) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby. To the Seller's knowledge,
there is no homestead or other exemption available to the Mortgagor which
would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(xx) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as
such, has been properly designated and currently so serves and is named
in the Mortgage, and no fees or expenses, except as may be required by
local law, are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale or
attempted sale after default by the Mortgagor;
(xxi) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the mortgage
loan application by a Qualified Appraiser, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan;
(xxii) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (B) (1)
organized under the laws of such state, or (2) qualified to do business
in such state, or (3) federal savings and loan associations or national
banks or a Federal Home Loan Bank or savings bank having principal
offices in such state or otherwise exempt from such qualification or
licensing, or (4) not doing business in such state;
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(xxiii) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision,
such buydown funds have been maintained and administered in accordance
with, and such Mortgage Loan otherwise complies with, FNMA/FHLMC
requirements relating to buydown loans;
(xxiv) The Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of
each month. Each Mortgage Note requires a monthly payment which is
sufficient to fully amortize the original principal balance over the
original term thereof and to pay interest at the related Mortgage
Interest Rate;
(xxv) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxvi) As to Mortgage Loans that are not Co-op Loans and that are
not secured by an interest in a leasehold estate, the Mortgaged Property
is located in the state identified in Schedule I and consists of a single
parcel of real property with a detached single family residence erected
thereon, or a townhouse, or a two-to four-family dwelling, or an
individual condominium unit in a condominium project, or an individual
unit in a planned unit development or a de minimis planned unit
development, or a non-warrantable condominium, or a manufactured home, if
such manufactured home meets the FNMA and FHLMC manufactured housing
guidelines, provided, however, that no residence or dwelling is a single
parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. As of the date of origination, no portion of
the Mortgaged Property was used for commercial purposes, and since the
date of origination, to the best of Seller's knowledge, no portion of the
Mortgaged Property has been used for commercial purposes, except for
incidental uses which are in accordance with FNMA or FHLMC guidelines;
(xxvii) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the funds were disbursed in connection with
the Mortgage Loan. The Mortgage Note is payable on the first day of each
month in equal monthly installments of principal and interest, with
interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of
not more than thirty years from commencement of amortization;
(xxviii) Certain DLJMC Mortgage Loans as specified on Schedule I may
contain a Prepayment Penalty in an amount specified in the related
Mortgage Note or Mortgage.
(xxix) As of the date of origination of the Mortgage Loan, the
Mortgage Property was lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities;
(xxx) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or
stock in a cooperative
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housing corporation, such condominium, cooperative or planned unit
development project meets Seller's eligibility requirements as set forth
in Seller's underwriting guidelines;
(xxxi) To the best of Seller's knowledge, there is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue; to
the best of Seller's knowledge, there is no violation of any
environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(xxxii) The Mortgagor has not notified the Seller, and the Seller
has no knowledge of any relief requested or allowed to the Mortgagor
under the Soldiers' and Sailors' Civil Relief Act of 1940;
(xxxiii) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or facilitating
the trade-in or exchange of a Mortgaged Property unless (a) the Mortgage
Loan was identified as a construction-to-permanent mortgage loan on the
Mortgage Loan Schedule and (b) the Mortgage Loan has been fully
disbursed, all construction work is complete and a completion certificate
has been issued;
(xxxiv) No action has been taken or failed to be taken by Seller, on
or prior to the Closing Date which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any Primary
Mortgage Insurance Policy (including, without limitation, any exclusions,
denials or defenses which would limit or reduce the availability of the
timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors,
omissions, negligence, or fraud of the Seller, or for any other reason
under such coverage;
(xxxv) Each Mortgage Loan has been serviced in all material respects
in compliance with accepted servicing practices;
(xxxvi) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to
(a) liens of the cooperative for unpaid assessments representing the
Mortgagor's pro rata share of the cooperative's payments for its blanket
mortgage, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is
commonly subject and (b) other matters to which like collateral is
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Security Agreement. There are
no liens against or security interest in the cooperative shares relating
to each Co-op Loan (except for unpaid maintenance, assessments and other
amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Co-op Loan),
which have priority over the Seller's security interest in such
cooperative shares; and
(xxxvii) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act, a savings and loan association, a
savings bank, a commercial bank,
IIIA-7
credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority.
IIIA-8
SCHEDULE IIIB
Representations and Warranties of GreenPoint - GreenPoint Mortgage Loans
GreenPoint, in its capacity as Seller, hereby makes the
representations and warranties set forth in this Schedule IIIB to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date, or
if so specified herein, as of the Cut-off Date or such other date as may be
specified, with respect to the GreenPoint Mortgage Loans identified on
Schedule I hereto. Capitalized terms used but not defined herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement dated as
of January 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as the depositor, DLJ Mortgage Capital, Inc., as seller,
Chase Manhattan Mortgage Corporation, as master servicer, GreenPoint Mortgage
Funding, Inc., as a seller and a servicer, Washington Mutual Mortgage
Securities Corp., as a servicer, Olympus Servicing, L.P., as a servicer and
special servicer, JPMorgan Chase Bank, as trust administrator and Bank One,
National Association, as trustee. Each reference to a "Mortgage Loan" in this
Schedule IIIB shall mean a GreenPoint Mortgage Loan, and each reference to a
"Mortgaged Property" shall mean a Mortgaged Property related to a GreenPoint
Mortgage Loan. Each reference to the "Seller" in this Schedule IIICB shall
mean GreenPoint, in its capacity as seller of the GreenPoint Mortgage Loans.
(i) The information set forth in Schedule I, as it relates to the
GreenPoint Mortgage Loans, including any diskette or other related data tapes,
is complete, true and correct in all material respects as of the Cut-off Date;
(ii) With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in an
estate in fee simple in real property securing the related Mortgage Note. With
respect to a Mortgage Loan that is a Co-op Loan, the Mortgage creates a first
lien or a first priority ownership interest in the stock ownership and
leasehold rights associated with the cooperative unit securing the related
Mortgage Note;
(iii) All payments due prior to the Cut-off Date for the Mortgage
Loans have been made as of the Closing Date, with respect to each GreenPoint
Mortgage Loan, the Mortgage Loan is not delinquent in payment more than 30
days and has not been dishonored; there are no material defaults under the
terms of the Mortgage Loan; the Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than
the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no more than one delinquency during the preceding twelve-month
period, and such delinquency did not last more than 30 days;
(iv) There are no defaults by Seller in complying with the terms of
the Mortgage, and all taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item which
remains unpaid and which has been assessed but is not yet due and payable;
IIIB-1
(v) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law, or, necessary to protect the interest of the Trustee. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, from the terms thereof
except in connection with an assumption agreement and which assumption
agreement is part of the Mortgage File and the terms of which are reflected in
Schedule I; the substance of any such waiver, alteration or modification has
been approved by the issuer of any related Mortgage Guaranty Insurance Policy
and title insurance policy, to the extent required by the related policies;
(vi) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the terms
of the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render the Mortgage Note or Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto; and the
Mortgagor was not a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(vii) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the FNMA
Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the FNMA Guides or by FHLMC, as well as all
additional requirements set forth in Section 3.09 of the Agreement. All such
standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Seller and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section 3.09
of the Agreement. Such policy was issued by an insurer acceptable under FNMA
or FHLMC guidelines. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan have been complied with in all material
respects;
(ix) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the performance by
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the Mortgagor of any action, if the Mortgagor's failure to perform such action
would cause the Mortgage Loan to be in default, nor has the Seller waived any
default resulting from any action or inaction by the Mortgagor;
(x) The Mortgage is a valid, subsisting, enforceable and perfected
first lien on the Mortgaged Property, including for Mortgage Loans that are
not Co-op Loans, all buildings on the Mortgaged Property and all installations
and mechanical, electrical, plumbing, heating and air conditioning systems
affixed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing securing the Mortgage Note's
original principal balance. The Mortgage and the Mortgage Note do not contain
any evidence of any security interest or other interest or right thereto. Such
lien is free and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which are
acceptable to mortgage lending institutions generally and either (A) which are
referred to or otherwise considered in the appraisal made for the originator
of the Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected first
lien and first priority security interest on the property described therein,
and the Seller has the full right to sell and assign the same;
(xi) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors and the Seller has taken all action necessary to transfer
such rights of enforceability. All parties to the Mortgage Note and the
Mortgage had the legal capacity to enter into the Mortgage Loan and to execute
and deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller or the
Mortgagor, or, on the part of any other party involved in the origination of
the Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvements and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and
the recording of the Mortgage were paid or are in the process of being paid,
and the Mortgagor is not entitled to any refund of any amounts paid or due
under the Mortgage Note or Mortgage;
(xii) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by the Mortgage
Note, except for the assignments of mortgage which have been sent for
recording, and upon recordation the Purchaser or its designee will be the
owner of record of the Mortgage and the indebtedness evidenced by
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the Mortgage Note, and upon the sale of the Mortgage Loan, the Seller will
retain the Mortgage File or any part thereof with respect thereto not
delivered for the purpose of servicing and supervising the servicing of the
Mortgage Loan. The Mortgage Loan, including the Mortgage Note and the
Mortgage, were not subject to an assignment or pledge, and the Seller had good
and marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest and has the full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign the Mortgage Loan pursuant to the Agreement
and following the sale of the Mortgage Loan, the Trustee will own such
Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. The Seller intends
to relinquish all rights to possess, control and monitor the Mortgage Loans.
After the Closing Date the Seller will have no right to modify or alter the
terms of the sale of such Mortgage Loans and the Seller will have no
obligation or right to repurchase the Mortgage Loan or substitute another
Mortgage Loan, except as provided in the Agreement;
(xiii) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form of
policy or insurance acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the exceptions
contained in (j)(1), (2) and (3) above) the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy, such
title insurance policy has been duly and validly endorsed or the assignment of
the Seller's interest therein does not require the consent of or notification
to the insurer and such lender's title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by the Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither the Seller nor any prior mortgagee has
waived any default, breach, violation or event permitting acceleration;
(xv) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related Mortgage;
(xvi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly within
the boundaries and building restriction lines of the Mortgaged Property (and
wholly within the project with respect
IIIB-4
to a condominium unit) and no improvements on adjoining properties encroach
upon the Mortgaged Property except those which are insured against by the
title insurance policy referred to in clause (m) above and all improvements on
the property comply with all applicable zoning and subdivision laws and
ordinances;
(xvii) The Mortgage Loan was originated by or for the Seller. The
Mortgage Loan complies with all the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of origination of such
Mortgage Loan. The Mortgage Notes and Mortgages (exclusive of any riders) are
on forms generally acceptable to FNMA or FHLMC. The Seller is currently
selling loans to FNMA and/or FHLMC which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears interest at the Mortgage Rate as set forth in Schedule I, and Monthly
Payments under the Mortgage Note are due and payable on the first day of each
month. The Mortgage contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of
the unpaid principal amount of the Mortgage Loan if the related Mortgaged
Property is sold without the prior consent of the mortgagee thereunder;
(xviii) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At origination
of the Mortgage Loan there was, and there currently is, no proceeding pending
for the total or partial condemnation of the Mortgaged Property. There have
not been any condemnation proceedings with respect to the Mortgaged Property
and there are no such proceedings scheduled to commence at a future date;
(xix) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (1) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by
judicial foreclosure. There is no homestead or other exemption available to
the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
(xx) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses, except as may be required by local law, are
or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustee's sale or attempted sale after
default by the Mortgagor;
(xxi) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the mortgage loan
application by a Qualified Appraiser, approved by the Seller, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of FNMA or FHLMC and Title XI of the Federal
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the
IIIB-5
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to FNMA or FHLMC and was made by a Qualified Appraiser;
(xxii) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws of
the state wherein the Mortgaged Property is located, and (B) (1) organized
under the laws of such state, or (2) qualified to do business in such state,
or (3) federal savings and loan associations or national banks or a Federal
Home Loan Bank or savings bank having principal offices in such state, or (4)
not doing business in such state;
(xxiii) The related Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above and such collateral does not serve as security for any other obligation;
(xxiv) The Mortgagor has received all disclosure materials required
by applicable law with respect to the making of such mortgage loans;
(xv) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision, such
buydown funds have been maintained and administered in accordance with, and
such Mortgage Loan otherwise complies with, FNMA/FHLMC requirements relating
to buydown loans;
(xxvi) The Mortgagor is not in bankruptcy and, the Mortgagor is not
insolvent or in bankruptcy and the Seller has no knowledge of any
circumstances or condition with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that could
reasonably be expected to cause investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
materially adversely affect the value or marketability of the Mortgage Loan;
(xxvii) The Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of each
month. Each Mortgage Note requires a monthly payment which is sufficient to
fully amortize the original principal balance over the original term thereof
and to pay interest at the related Mortgage Rate. No Mortgage Loan contains
terms or provisions which would result in negative amortization;
(xxviii) [Reserved];
(xxix) [Reserved];
(xxx) [Reserved];
(xxxi) [Reserved];
(xxxii) [Reserved];
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(xxxiii) [Reserved];
(xxxiv) Except for Mortgage Loans underwritten in accordance with
the lender paid Mortgage Insurance Policy Program, if a Mortgage Loan has an
LTV greater than 85%, the excess of the principal balance of the Mortgage Loan
over 75% of the Appraised Value, with respect to a Refinanced Mortgage Loan,
or the lesser of the Appraised Value or the purchase price of the Mortgaged
Property, with respect to a purchase money Mortgage Loan, is and will be
insured as to payment defaults by a Mortgage Guaranty Insurance Policy issued
by a Qualified Insurer. All provisions of such Mortgage Guaranty Insurance
Policy have been and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. No action, inaction,
or event has occurred and no state of facts exists that has, or will result in
the exclusion from, denial of, or defense to coverage. Any Mortgage Loan
subject to a Mortgage Guaranty Insurance Policy obligates the Mortgagor
thereunder to maintain the Mortgage Guaranty Insurance Policy and to pay all
premiums and charges in connection therewith. The mortgage interest rate for
the Mortgage Loan as set forth on Schedule I is net of any such insurance
premium;
(xxxv) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxxvi) As to Mortgage Loans that are not Co-op Loans and that are
not secured by an interest in a leasehold estate, the Mortgaged Property is
located in the state identified in Schedule I and consists of a single parcel
of real property with a detached single family residence erected thereon, or a
townhouse, or a two-to four-family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or a de minimis planned unit development, provided, however, that no residence
or dwelling is a single parcel of real property with a cooperative housing
corporation erected thereon, or a mobile home. As of the date of origination,
no portion of the Mortgaged Property is used for commercial purposes, and
since the date or origination no portion of the Mortgaged Property is used for
commercial purposes;
(xxxvii) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the funds were disbursed in connection with the
Mortgage Loan. The Mortgage Note is payable on the first day of each month in
equal monthly installments of principal and interest, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization;
(xxxviii) [Reserved];
(xxxix) As of the date of origination of the Mortgage Loan, the
Mortgaged Property was lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not limited to
IIIB-7
certificates of occupancy and fire underwriting certificates, have been made
or obtained from the appropriate authorities;
(xl) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or stock
in a cooperative housing corporation, such condominium, cooperative or planned
unit development project meets Seller's eligibility requirements as set forth
in Seller's underwriting guidelines;
(xli) There is no pending action or proceeding directly involving
the Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or regulation with respect to the Mortgaged Property; and nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or regulation constituting a prerequisite to use and enjoyment of said
property;
(xlii) The Mortgagor has not notified the Seller, and the Seller has
no knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(xliii) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or facilitating the
trade-in or exchange of a Mortgaged Property;
(xliiii) No action has been taken or failed to be taken by Seller on
or prior to the Closing Date which has resulted or will result in an exclusion
from, denial of, or defense to coverage under any Mortgage Guaranty Insurance
Policy (including, without limitation, any exclusions, denials or defenses
which would limit or reduce the availability of the timely payment of the full
amount of the loss otherwise due thereunder to the insured) whether arising
out of actions, representations, errors, omissions, negligence, or fraud of
the Seller, or for any other reason under such coverage;
(xlv) Each Mortgage Loan has been serviced in all material respects
in compliance with Accepted Servicing Practices;
(xlvi) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to (a)
liens of the cooperative for unpaid assessments representing the Mortgagor's
pro rata share of the cooperative's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the related
security agreement. There are no liens against or security interest in the
cooperative shares relating to each Co-op Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which
individually or in the aggregate will not have a material adverse effect on
such Co-op Loan), which have priority over the Seller's security interest in
such cooperative shares;
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(xlvii) With respect to each Co-op Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to FNMA and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Co-op Loan;
(xlviii) With respect to each Co-op Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the
Internal Revenue Code, and is in material compliance with applicable federal,
state and local laws which, if not complied with, could have a material
adverse effect on the Mortgaged Property;
(il) With respect to each Co-op Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Co-op Lease;
(l) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which
is supervised and examined by a federal or state authority;
(li) With respect to any ground lease to which a Mortgaged Property
may be subject: (i) the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease: (ii) such ground lease is in full
force and effect, unmodified and not supplemented by any writing or otherwise;
(iii) all rent, additional rent and other charges reserved therein have been
fully paid to the extent payable as of the Closing Date; (iv) the Mortgagor
enjoys the quiet and peaceful possession of the leasehold estate, subject to
any sublease; (v) the Mortgagor is not in default under any of the terms of
such ground lease, and there are no circumstances which, with the passage of
time or the giving of notice, or both, would result in a default under such
ground lease; (vi) the lessor under such ground lease is not in default under
any of the terms or provisions of such ground lease on the part of the lessor
to be observed or performed; (vii) the lessor under such ground lease has
satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; and (viii) the execution, delivery
and performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground
lease; and
(lii) With respect to any broker fees collected and paid on any of
the loans, all broker fees have been properly assessed to the borrower and no
claims will arise as to broker fees that are double charged and for which the
borrower would be entitled to reimbursement.
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