EXECUTION COPY
CHASE MORTGAGE FINANCE CORPORATION,
DEPOSITOR,
CHASE MANHATTAN MORTGAGE CORPORATION,
SERVICER AnD MASTER SERVICER,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
SERVICER,
AND
CITIBANK, N.A.,
TRUSTEE
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2001
$450,122,342.22
Multi-Class Mortgage Pass-Through Certificates
Series 2001-S5
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................................1
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; TRUST FUND..............................................................39
Section 2.01. Conveyance of Mortgage Loans..............................................................39
Section 2.02. Acceptance by Trustee.....................................................................42
Section 2.03. Trust Fund; Authentication of Certificates................................................43
Section 2.04. REMIC Elections...........................................................................44
Section 2.05. Permitted Activities of Trust. The Trust is created for the object and
purpose of engaging in the Permitted Activities...........................................47
Section 2.06. Qualifying Special Purpose Entity. .......................................................47
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND THE SERVICERS;
REPURCHASE OF MORTGAGE LOANS............................................................................47
Section 3.01. Representations and Warranties of the Depositor with respect to the Mortgage Loans........47
Section 3.02. Representations and Warranties of each Servicer...........................................54
Section 3.03. Option to Substitute......................................................................55
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ARTICLE IV THE CERTIFICATES......................................................................................55
Section 4.01. The Certificates..........................................................................55
Section 4.02. Registration of Transfer and Exchange of Certificates.....................................58
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates.........................................61
Section 4.04. Persons Deemed Owners.....................................................................61
Section 4.05. Appointment of Paying Agent; Certificate Account..........................................61
Section 4.06. Authenticating Agents.....................................................................62
ARTICLE V ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.........................................................63
Section 5.01. Servicers to Service Mortgage Loans.......................................................63
Section 5.02. Sub-Servicing Agreements Between Servicers and Sub-Servicers; Enforcement of
Sub-Servicer's Obligations................................................................64
Section 5.03. Successor Sub-Servicers...................................................................64
Section 5.04. Liability of the Servicers................................................................65
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Section 5.05. No Contractual Relationship Between Sub-Servicer and Trustee or
Certificateholders........................................................................65
Section 5.06. Termination of Sub-Servicing Agreement....................................................65
Section 5.07. Collection of Mortgage Loan Payments......................................................65
Section 5.08. Establishment of Collection Accounts; Deposit in Collection Account.......................65
Section 5.09. Permitted Withdrawals from the Collection Accounts........................................67
Section 5.10. Establishment of Escrow Account; Deposits in Escrow Account...............................68
Section 5.11. Permitted Withdrawals from Escrow Account.................................................68
Section 5.12. Payment of Taxes, Insurance and Other Charges.............................................68
Section 5.13. Transfer of Accounts......................................................................69
Section 5.14. [Reserved]................................................................................69
Section 5.15. Maintenance of the Primary Insurance Policies.............................................69
Section 5.16. Maintenance of Standard Hazard Policies...................................................69
Section 5.17. [Reserved]................................................................................70
Section 5.18. [Reserved]................................................................................70
Section 5.19. Fidelity Bond and Errors and Omissions Insurance|.........................................70
Section 5.20. Collections under Insurance Policies; Enforcement of Due-On-Sale Clauses;
Assumption Agreements.....................................................................70
Section 5.21. Income and Realization from Defaulted Mortgage Loans......................................71
Section 5.22. Trustee to Cooperate; Release of Mortgage Files...........................................72
Section 5.23. Servicing and Other Compensation..........................................................73
Section 5.24. 1934 Act Reports..........................................................................73
Section 5.25. Annual Statement as to Compliance.........................................................74
Section 5.26. Annual Independent Public Accountants' Servicing Report...................................74
Section 5.27. Access to Certain Documentation; Rights of the Depositor in Respect of the Servicers......74
Section 5.28. REMIC-Related Covenants...................................................................75
ARTICLE VI PAYMENTS TO THE CERTIFICATEHOLDERS....................................................................76
Section 6.01. Distributions.............................................................................76
Section 6.02. Statements to the Certificateholders......................................................82
Section 6.03. Advances by the Servicers.................................................................83
Section 6.04. Allocation of Realized Losses.............................................................84
Section 6.05. Compensating Interest; Allocation of Certain Interest Shortfalls..........................85
Section 6.06. Subordination.............................................................................86
Section 6.07. Determination of LIBOR....................................................................87
ARTICLE VII REPORTS TO BE PREPARED BY THE MASTER SERVICER........................................................87
Section 7.01. Master Servicer and Each Servicer Shall Provide Information as Reasonably Required........87
Section 7.02. Federal Information Returns and Reports to Certificateholders.............................87
ARTICLE VIII THE DEPOSITOR, THE SERVICERS AND THE master servicer................................................88
Section 8.01. Indemnification; Third Party Claims.......................................................88
Section 8.02. Merger or Consolidation of the Depositor, the Servicers or the Master Servicer............89
Section 8.03. Limitation on Liability of the Depositor, the Servicer, the Master Servicer
the Trustee and Others....................................................................89
Section 8.04. Depositor, Servicers and Master Servicer Not to Resign....................................90
Section 8.05. Successor to the Servicers................................................................90
Section 8.06. Maintenance of Ratings....................................................................91
Section 8.07. Compensation of the Master Servicer.......................................................92
Section 8.08. Certain Matters Affecting the Master Servicer.............................................92
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ARTICLE IX DEFAULT...............................................................................................92
Section 9.01. Events of Default.........................................................................92
Section 9.02. Waiver of Defaults........................................................................93
Section 9.03. Trustee to Act; Appointment of Successor..................................................94
Section 9.04. Notification to Certificateholders and the Rating Agencies................................94
ARTICLE X CONCERNING THE TRUSTEE.................................................................................94
Section 10.01. Duties of Trustee........................................................................94
Section 10.02. Certain Matters Affecting the Trustee....................................................95
Section 10.03. Trustee Not Liable for Certificates or Mortgage Loans....................................96
Section 10.04. Trustee May Own Certificates.............................................................96
Section 10.05. Fees and Expenses........................................................................96
Section 10.06. Eligibility Requirements for Trustee.....................................................97
Section 10.07. Resignation and Removal of the Trustee...................................................97
Section 10.08. Successor Trustee........................................................................98
Section 10.09. Merger or Consolidation of Trustee.......................................................98
Section 10.10. Appointment of Co-Trustee or Separate Trustee............................................98
Section 10.11. Appointment of Office or Agency..........................................................99
ARTICLE XI TERMINATION...........................................................................................99
Section 11.01. Termination..............................................................................99
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................101
Section 12.01. Severability of Provisions..............................................................101
Section 12.02. Limitation on Rights of Certificateholders..............................................101
Section 12.03. Amendment...............................................................................102
Section 12.04. Counterparts............................................................................102
Section 12.05. Duration of Agreement...................................................................103
Section 12.06. Governing Law...........................................................................103
Section 12.07. Notices.................................................................................103
Section 12.08. Further Assurances......................................................................103
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TABLE OF CONTENTS
Page
EXHIBIT A-1 MORTGAGE LOAN SCHEDULE (CMMC SERVICED MORTGAGE LOANS)
EXHIBIT A-2 MORTGAGE LOAN SCHEDULE (WMMSC SERVICED MORTGAGE LOANS)
EXHIBIT B CONTENTS OF MORTGAGE FILE
EXHIBIT C FORMS OF CLASS A CERTIFICATES
EXHIBIT D FORM OF CLASS M CERTIFICATE
EXHIBIT E FORMS OF CLASS B CERTIFICATES
EXHIBIT F FORM OF CLASS A-R CERTIFICATE
EXHIBIT G FORM OF TRUSTEE CERTIFICATION
EXHIBIT H FORM OF INVESTMENT LETTER
EXHIBIT I FORM OF RULE 144A INVESTMENT LETTER
EXHIBIT J RESERVED
EXHIBIT K FORM OF CLASS A-R TRANSFEREE LETTER
EXHIBIT L REQUEST FOR RELEASE OF DOCUMENTS
EXHIBIT M FORM OF ERISA REPRESENTATION
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This Pooling and Servicing Agreement, dated as of September 1, 2001, is
executed among Chase Mortgage Finance Corporation, as depositor (together with
its permitted successors and assigns, the "Depositor"), Chase Manhattan Mortgage
Corporation ("CMMC"), as master servicer (together with its permitted successors
and assigns in such capacity, the "Master Servicer") and servicer, Washington
Mutual Mortgage Securities Corp. ("WMMSC"), as servicer (each of CMMC and WMMSC
together with their respective permitted successors and assigns in their
capacities as servicers, a "Servicer", and together, the "Servicers") and
Citibank, N.A., as trustee (together with its permitted successors and assigns,
the "Trustee").
In consideration of the premises and the mutual agreements hereinafter
set forth, the Depositor, WMMSC, CMMC, the Master Servicer and the Trustee agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, 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 (including collection procedures) of prudent
mortgage banking institutions which service mortgage loans of the same type as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property (or
Underlying Mortgaged Property, in the case of a Co-op Loan) is located, and
which are in accordance with FNMA servicing practices and procedures for MBS
pool mortgages as defined in the FNMA Guides including future updates.
ADJUSTED LOCK-OUT PERCENTAGE: Equals (i) for any Distribution Date
prior to the Distribution Date in October 2006, 0% and (ii) for any Distribution
Date on or after the Distribution Date in October 2006, the Lock-out Percentage.
ADVANCE: The aggregate of the advances made by the Servicers with
respect to a particular Distribution Date pursuant to Section 6.03.
AFFILIATE: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such Person. For the
purposes of this definition, "control" means the power to direct the management
and policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGENCY & TRUST OFFICE: The principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of execution of this instrument is located at 000 Xxxx
Xxxxxx, 00xx Xxxxx/Xxxx #0, Xxx Xxxx, Xxx Xxxx 00000.
AGGREGATE CLASS A INTEREST ACCRUAL AMOUNT: On any Distribution Date, an
amount equal to the sum of the Class IA-1 Interest Accrual Amount, the Class
IA-2 Interest Accrual Amount, the Class IA-3 Interest Accrual Amount, the Class
IA-4 Interest Accrual Amount, the Class IA-5 Interest Accrual Amount, the Class
IA-6 Interest Accrual Amount, the Class IA-7 Interest Accrual Amount, the Class
IA-8 Interest Accrual Amount, the Class IA-9 Interest Accrual Amount, the Class
IA-10 Interest Accrual Amount, the Class IA-11 Interest Accrual Amount, the
Class IA-12 Interest Accrual Amount, the Class IA-13 Interest Accrual Amount,
the Class IA-14 Interest Accrual Amount, the Class IA-15 Interest Accrual
Amount, the Class IA-16 Interest Accrual Amount, the Class IA-17 Interest
Accrual Amount, the Class IA-18 Interest Accrual Amount, the Class IA-19
Interest Accrual Amount, the Class IA-20 Interest Accrual Amount, the Class
IIA-1 Interest Accrual Amount, the Class A-X Interest Accrual Amount and the
Class A-R Interest Accrual Amount.
AGGREGATE CLASS A INTEREST SHORTFALL: On any Distribution Date, an
amount equal to the sum of the Class IA-1 Shortfall, the Class IA-2 Shortfall,
the Class IA-3 Shortfall, the Class IA-4 Shortfall, the Class IA-5 Shortfall,
the Class IA-6 Shortfall, the Class IA-7 Shortfall, the Class IA-8 Shortfall,
the Class IA-9 Shortfall, the Class IA-10 Shortfall, the Class IA-11 Shortfall,
the Class IA-12 Shortfall, the Class IA-13 Shortfall, the Class IA-14 Shortfall,
the Class IA-15 Shortfall, the Class IA-16 Shortfall, the Class IA-17 Shortfall,
the Class IA-18 Shortfall, the Class IA-19 Shortfall, the Class IA-20 Shortfall,
the Class IIA-1 Shortfall, the Class A-X Shortfall and the Class A-R Shortfall.
AGREEMENT: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
APPRAISED VALUE: The value set forth in an appraisal made in connection
with the origination of the related Mortgage Loan as the value of the Mortgaged
Property (or related residential dwelling unit in the Underlying Mortgaged
Property, in the case of a Co-op Loan).
ASSIGNMENT OF MORTGAGE: An assignment of the Mortgage, notice of
transfer (or UCC-3 assignment (or equivalent instrument) with respect to each
Co-op Loan) or equivalent instrument, in recordable form (except in the case of
a Co-op Loan), sufficient under the laws of the jurisdiction where the related
Mortgaged Property (or Underlying Mortgaged Property, in the case of a Co-op
Loan) is located to reflect of record the sale and assignment of the Mortgage
Loan to the Trustee, which assignment, notice of transfer or equivalent
instrument may, if permitted by law, be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties located in the
same county.
AUTHENTICATING AGENT: The meaning specified in Section 4.06.
AVAILABLE DISTRIBUTION AMOUNT: As to either Mortgage Group or, as the
context requires, both Mortgage Groups, on any Distribution Date, an amount
equal to the amount on deposit in the Collection Accounts with respect to such
Mortgage Group as of the close of business on the related Determination Date
except:
(a) amounts received on particular Mortgage Loans in such Mortgage
Group as late payments or other recoveries of principal or interest (including
Liquidation Proceeds, Insurance Proceeds and condemnation awards) and respecting
which the related Servicer previously made an unreimbursed Advance of such
amounts;
(b) reimbursement for Nonrecoverable Advances and other amounts
permitted to be withdrawn by either Servicer pursuant to Section 5.09 from, or
not required to be deposited in, either Collection Account attributable, in each
case, to Mortgage Loans in such Mortgage Group;
(c) amounts representing the Servicing Fee and the Excess Amount
Distribution attributable in each case, to Mortgage Loans in such Mortgage Group
with respect to such Distribution Date;
(d) amounts representing all or part of a Monthly Payment with respect
to a Mortgage Loan in such Mortgage Group due (i) after the related Due Period
or (ii) on or prior to the Cut-off Date;
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(e) all Repurchase Proceeds, Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation awards with respect to Mortgage
Loans in such Mortgage Group received after the related Principal Prepayment
Period, and all related payments of interest representing interest for any
period of time after the last day of the related Due Period for such Mortgage
Loans; and
(f) all income from Eligible Investments held in either Collection
Account for the account of the related Servicer.
BANKRUPTCY AMOUNT: As of any date of determination, $126,346.06 minus
all Bankruptcy Losses on the Mortgage Loans, if any, previously allocated to the
Certificates in accordance with Section 6.04.
BANKRUPTCY CODE: Title 11 of the United States Code, as the same may be
amended from time to time.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, a Realized Loss
resulting from a Deficient Valuation or Debt Service Reduction.
BENEFICIAL HOLDER: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a Participant or an Indirect Participant or
a Person holding a beneficial interest in any Definitive Certificate.
BOOK-ENTRY CERTIFICATES: The Class A Certificates (other than the Class
A-R Certificates), Class M Certificates, Class B-1 Certificates and Class B-2
Certificates, referred to collectively.
BUSINESS DAY: Any day other than (a) a Saturday or Sunday, (b) a legal
holiday in the State of New York or the State of Illinois or (c) a day on which
banking institutions in the State of New York or the State of Illinois are
authorized or obligated by law or executive order to be closed.
CARRY-OVER SUBORDINATED PRINCIPAL AMOUNT: As of any Distribution Date,
with respect to any Class of Subordinated Certificates, an amount, if any, equal
to the amount of principal distributable to such Class on any prior Distribution
Date that has not been so distributed.
CASH LIQUIDATION: Recovery of all cash proceeds by either Servicer with
respect to the liquidation of any Mortgage Loan serviced by it, including
Insurance Proceeds and other payments or recoveries (whether made at one time or
over a period of time) which such Servicer deems to be finally recoverable, in
connection with the sale, assignment or satisfaction of such Mortgage Loan,
trustee's sale, foreclosure sale or otherwise, but only if title to the related
Mortgaged Property was not acquired by foreclosure or deed in lieu of
foreclosure by such Servicer pursuant to Section 5.21.
CERTIFICATE: Any Class A, Class M or Class B Certificate.
CERTIFICATE ACCOUNT: The account created and maintained pursuant to
Section 4.05.
CERTIFICATEHOLDER or HOLDER: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, waiver, request or demand pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Master Servicer, either
Servicer, any Sub-Servicer, or any of their respective Affiliates shall be
disregarded and the undivided Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect any such consent, waiver, request or demand has
been obtained. The Trustee shall be entitled to conclusively rely upon the
certificate of the Depositor, the Master Servicer or either Servicer as to the
determination of which Certificates are registered in the name of such
Affiliates.
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CERTIFICATE GROUP: Any of the Class IA or Class IIA Certificates.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Book-Entry Certificate registered in the name of the Depository or its nominee.
CERTIFICATE RATE: The per annum rate of interest borne by each Class of
Certificates, which rate shall equal (i) 6.00% with respect to the Class IA-14
Certificates, (ii) 6.25% with respect to the Class IA-10 Certificates, (iii)
6.50% with respect to the Class IA-9, Class IA-12, Class IA-16, Class IA-17,
Class IA-18, Class IA-19 and Class IIA-1 Certificates, (iv) 6.75% with respect
to the Class IA-2, Class IA-4, Class IA-5, Class IA-6, Class IA-7, Class IA-8,
Class IA-20 and Class A-R Certificates, (v) 7.00% with respect to the Class IA-3
Certificates and (vi) 8.50% with respect to the Class IA-15 Certificates. In the
case of the Class IA-1 and Class IA-13 Certificates, the Certificate Rate with
respect to the first Distribution Date will be 4.13%, and as to any Distribution
Date thereafter, the Certificate Rate on the Class IA-1 and Class IA-13
Certificates will equal the lesser of (A) 0.55% plus LIBOR and (B) 8.50%. In the
case of the Class IA-11 Certificates, the Certificate Rate with respect to the
first Distribution Date will be 4.37%, and as to any Distribution Date
thereafter, the Certificate Rate on the Class IA-11 Certificates will equal
7.95000% minus LIBOR, but not less than 0.00%. In the case of the Class A-X
Certificates, the Certificate Rate shall equal, with respect to each
Distribution Date, the weighted average of (i) 6.75% per annum on Class A-X
Component One and (ii) 6.50% per annum on Class A-X Component Two. With respect
to any Distribution Date, the Certificate Rate on each Class of Subordinated
Certificates will equal the fraction, expressed as a percentage, the numerator
of which will equal the sum of (i) the product of (x) 6.75% and (y) the Group
One Subordinated Amount and (ii) the product of (x) 6.50% and (y) the Group Two
Subordinated Amount and the denominator of which will equal the sum of the Group
One Subordinated Amount and the Group Two Subordinated Amount. Interest with
respect to each Class of Certificates at the Certificate Rate shall be
calculated based on a year of 360 days comprised of twelve 30-day months.
CERTIFICATE REGISTER: The register maintained pursuant to Section 4.02.
CERTIFICATE REGISTRAR: The Chase Manhattan Bank, a New York State
banking corporation, or it successor in interest.
CHASE: The Chase Manhattan Bank, a New York State banking corporation,
or its successor in interest.
CLASS: Pertaining to the Class IA-1, Class IA-2, Class IA-3, Class
IA-4, Class IA-5, Class IA-6, Class IA-7, Class IA-8, Class IA-9, Class IA-10,
Class IA-11, Class IA-12, Class IA-13, Class IA-14, Class IA-15, Class IA-16,
Class IA-17, Class IA-18, Class IA-19, Class IA-20, Class A-X, Class A-R, Class
IIA-1, Class M, Class B-1, Class B-2, Class B-3, Class B-4 or Class B-5
Certificates, as the case may be.
CLASS A CERTIFICATES: The Class IA-1, Class IA-2, Class IA-3, Class
IA-4, Class IA-5, Class IA-6, Class IA-7, Class IA-8, Class IA-9, Class IA-10,
Class IA-11, Class IA-12, Class IA-13, Class IA-14, Class IA-15, Class IA-16,
Class IA-17, Class IA-18, Class IA-19, Class IA-20, Class IIA-1, Class A-P,
Class A-X and Class A-R Certificates, referred to collectively.
CLASS A, CLASS M OR CLASS B: Pertaining to Class A Certificates, Class
M Certificates or Class B Certificates, as the case may be.
CLASS IA-1 CERTIFICATE: Any one of the Class IA-1 Certificates,
executed by the Depositor and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
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CLASS IA-2 CERTIFICATE: Any one of the Class IA-2 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-3 CERTIFICATE: Any one of the Class IA-3 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-4 CERTIFICATE: Any one of the Class IA-4 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-5 CERTIFICATE: Any one of the Class IA-5 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-6 CERTIFICATE: Any one of the Class IA-6 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-7 CERTIFICATE: Any one of the Class IA-7 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-8 CERTIFICATE: Any one of the Class IA-8 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-9 CERTIFICATE: Any one of the Class IA-9 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-10 CERTIFICATE: Any one of the Class IA-10 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-11 CERTIFICATE: Any one of the Class IA-11 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-12 CERTIFICATE: Any one of the Class IA-12 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-13 CERTIFICATE: Any one of the Class IA-13 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-14 CERTIFICATE: Any one of the Class IA-14 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
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CLASS IA-15 CERTIFICATE: Any one of the Class IA-15 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-16 CERTIFICATE: Any one of the Class IA-16 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-17 CERTIFICATE: Any one of the Class IA-17 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-18 CERTIFICATE: Any one of the Class IA-18 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-19 CERTIFICATE: Any one of the Class IA-19 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA-20 CERTIFICATE: Any one of the Class IA-20 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS A-X CERTIFICATE: Any one of the Class A-X Certificates executed
by the Trustee and authenticated by the Trustee, senior in right of payment to
the Class M and Class B Certificates, substantially in the form of the Class A
Certificate set forth in Exhibit C hereto.
CLASS A-P CERTIFICATE: Any one of the Class A-P Certificates executed
by the Trustee and authenticated by the Trustee, senior in right of payment to
the Class M and Class B Certificates, substantially in the form of the Class A
Certificate set forth in Exhibit C hereto.
CLASS IIA-1 CERTIFICATE: Any one of the Class IIA-1 Certificates,
executed by the Trustee and authenticated by the Trustee, senior in right of
payment to the Class M and Class B Certificates, substantially in the form of
the Class A Certificate set forth in Exhibit C hereto.
CLASS IA CERTIFICATES: The Class IA-1, Class IA-2, Class IA-3, Class
IA-4, Class IA-5, Class IA-6, Class IA-7, Class IA-8, Class IA-9, Class IA-10,
Class IA-11, Class IA-12, Class IA-13, Class IA-14, Class IA-15, Class IA-16,
Class IA-17, Class IA-18, Class IA-19, Class IA-20 and Class A-R Certificates,
referred to collectively.
CLASS IIA CERTIFICATES: The Class IIA-1 Certificates.
CLASS A-R CERTIFICATE: The Class A-R Certificate executed by the
Depositor and authenticated by the Trustee, which represents the Master Residual
Interest and the Subsidary Residual Interest, substantially in the form of the
Class A-R Certificate set forth in Exhibit F hereto.
CLASS IA-1 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-2 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
6
CLASS IA-3 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-4 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-5 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-6 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-7 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-8 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-9 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-10 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-11 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-12 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-13 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS A-P COMPONENT ONE INTEREST: An interest in the Subsidiary REMIC
having the characteristics described in Section 2.04(c).
CLASS A-X COMPONENT ONE INTEREST: An interest in the Subsidiary REMIC
having the characteristics described in Section 2.04(c).
CLASS IIA-1 INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS A-P COMPONENT TWO INTEREST: An interest in the Subsidiary REMIC
having the characteristics described in Section 2.04(c).
CLASS A-X COMPONENT TWO INTEREST: An interest in the Subsidiary REMIC
having the characteristics described in Section 2.04(c).
CLASS EA INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
7
CLASS SN INTEREST: An interest in the Subsidiary REMIC having the
characteristics described in Section 2.04(c).
CLASS IA-1 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-1 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-1 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-1 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-2 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-2 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-2 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-2 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-3 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-3 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-3 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-3 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-4 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-4 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-4 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-4 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-5 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-5 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-5 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-5 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-6 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-6 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-6 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-6 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-7 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-7 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-7 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-7 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-8 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-8 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-8 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-8 Certificates on such Distribution
Date pursuant to Section 6.05(c).
8
CLASS IA-9 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-9 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-9 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-9 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS IA-10 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-10 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-10 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-10 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-11 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Class IA-11 Notional
Amount minus (i) any Compensating Interest Shortfall allocated to the Class
IA-11 Certificates on such Distribution Date pursuant to Section 6.05(b) and
(ii) any Realized Loss Interest Shortfall allocated to the Class IA-11
Certificates on such Distribution Date pursuant to Section 6.05(c).
CLASS IA-12 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-12 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-12 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-12 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-13 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-13 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-13 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-13 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-14 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-14 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-14 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-14 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-15 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-15 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-15 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-15 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-16 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-16 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-16 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-16 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-17 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-17 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-17 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-17 Certificates on such
Distribution Date pursuant to Section 6.05(c).
9
CLASS IA-18 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-18 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-18 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-18 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-19 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IA-19 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IA-19 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IA-19 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS IA-20 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Class IA-20 Notional
Amount minus (i) any Compensating Interest Shortfall allocated to the Class
IA-20 Certificates on such Distribution Date pursuant to Section 6.05(b) and
(ii) any Realized Loss Interest Shortfall allocated to the Class IA-20
Certificates on such Distribution Date pursuant to Section 6.05(c).
CLASS IIA-1 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class IIA-1 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class IIA-1 Certificates on
such Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class IIA-1 Certificates on such
Distribution Date pursuant to Section 6.05(c).
CLASS A-R INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class A-R Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class A-R Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class A-R Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS A-X INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, the sum of the Class A-X Component One Interest Accrual Amount and the
Class A-X Component Two Interest Accrual Amount.
CLASS A-X COMPONENT ONE INTEREST ACCRUAL AMOUNT: With respect to any
Distribution Date, one month's interest at the Certificate Rate on the Class A-X
Component One Notional Amount minus (i) any Compensating Interest Shortfall
allocated to Class A-X Component One on such Distribution Date pursuant to
Section 6.05(b) and (ii) any Realized Loss Interest Shortfall allocated to Class
A-X Component One on such Distribution Date pursuant to Section 6.05(c).
CLASS A-X COMPONENT TWO INTEREST ACCRUAL AMOUNT: With respect to any
Distribution Date, one month's interest at the Certificate Rate on the Class A-X
Component Two Notional Amount minus (i) any Compensating Interest Shortfall
allocated to Class A-X Component Two on such Distribution Date pursuant to
Section 6.05(b) and (ii) any Realized Loss Interest Shortfall allocated to Class
A-X Component Two on such Distribution Date pursuant to Section 6.05(c).
CLASS IA-11 NOTIONAL AMOUNT: With respect to any Distribution Date, an
amount equal to the aggregate Outstanding Certificate Principal Balance of the
Class IA-1 and Class IA-13 Certificates (prior to giving effect to distributions
made on such Distribution Date).
10
CLASS IA-20 NOTIONAL AMOUNT: With respect to any Distribution Date, an
amount equal to the product of (x) 1/27 and (y) the Outstanding Certificate
Principal Balance of the Class IA-12, Class 1A-16, Class IA-17, Class IA-18 and
Class IA-19 Certificates (prior to giving effect to distributions made on such
Distribution Date).
CLASS A-X NOTIONAL AMOUNT: With respect to any Distribution Date, an
amount equal to the sum of the Class A-X Component One Notional Amount and the
Class A-X Component Two Notional Amount.
CLASS A-X COMPONENT ONE NOTIONAL AMOUNT: With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Scheduled
Principle Balance of the Non-Discount Mortgage Loans in Mortgage Group One and
(ii) a fraction the numerator of which is the Group One Stripped Interest Rate
and the denominator of which is 6.75%.
CLASS A-X COMPONENT TWO NOTIONAL AMOUNT: With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Scheduled
Principle Balance of the Non-Discount Mortgage Loans in Mortgage Group Two and
(ii) a fraction the numerator of which is the Group Two Stripped Interest Rate
and the denominator of which is 6.50%.
CLASS A-P COMPONENT ONE: The portion of the Class A-P Certificates so
designated in Section 4.01.
CLASS A-P COMPONENT TWO: The portion of the Class A-P Certificates so
designated in Section 4.01.
CLASS A-X COMPONENT ONE: The portion of the Class A-X Certificates so
designated in Section 4.01.
CLASS A-X COMPONENT TWO: The portion of the Class A-X Certificates so
designated in Section 4.01.
CLASS A PERCENTAGE: As of any Distribution Date, the percentage
obtained by dividing the Class A Principal Balance by the Mortgage Pool
Principal Balance, but not more than 100%.
CLASS IA PERCENTAGE: As of any Distribution Date, the percentage
obtained by dividing the Non-PO Class IA Principal Balance by the Group One
Mortgage Pool Principal Balance, but not more than 100%.
CLASS IIA PERCENTAGE: As of any Distribution Date, the percentage
obtained by dividing the Non-PO Class IIA Principal Balance by the Group Two
Mortgage Pool Principal Balance, but not more than 100%.
CLASS A PRINCIPAL BALANCE: As of any Distribution Date, (a) the Class A
Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Class A Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Advances of the Servicers made pursuant to Section 6.03 and Realized Losses
allocated to the Class A Certificates pursuant to Section 6.04); provided that
the Class A Principal Balance on the first Distribution Date shall be the
Original Class A Principal Balance.
CLASS IA-1 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-1 Interest Accrual Amount over the
amount actually distributed to the Class IA-1 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(A).
11
CLASS IA-2 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-2 Interest Accrual Amount over the
amount actually distributed to the Class IA-2 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(B).
CLASS IA-3 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-3 Interest Accrual Amount over the
amount actually distributed to the Class IA-3 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(C).
CLASS IA-4 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-4 Interest Accrual Amount over the
amount actually distributed to the Class IA-4 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(D).
CLASS IA-5 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-5 Interest Accrual Amount over the
amount actually distributed to the Class IA-5 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(E).
CLASS IA-6 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-6 Interest Accrual Amount over the
amount actually distributed to the Class IA-6 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(F).
CLASS IA-7 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-7 Interest Accrual Amount over the
amount actually distributed to the Class IA-7 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(G).
CLASS IA-8 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-8 Interest Accrual Amount over the
amount actually distributed to the Class IA-8 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(H).
CLASS IA-9 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class IA-9 Interest Accrual Amount over the
amount actually distributed to the Class IA-9 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(I).
CLASS IA-10 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-10 Interest Accrual Amount
over the amount actually distributed to the Class IA-10 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(J).
CLASS IA-11 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-11 Interest Accrual Amount
over the amount actually distributed to the Class IA-11 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(K).
CLASS IA-12 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-12 Interest Accrual Amount
over the amount actually distributed to the Class IA-12 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(L).
CLASS IA-13 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-13 Interest Accrual Amount
over the amount actually distributed to the Class IA-13 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(M).
CLASS IA-14 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-14 Interest Accrual Amount
over the amount actually distributed to the Class IA-14 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(N).
12
CLASS IA-15 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-15 Interest Accrual Amount
over the amount actually distributed to the Class IA-15 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(O).
CLASS IA-16 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-16 Interest Accrual Amount
over the amount actually distributed to the Class IA-16 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(P).
CLASS IA-17 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-17 Interest Accrual Amount
over the amount actually distributed to the Class IA-17 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(Q).
CLASS IA-18 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-18 Interest Accrual Amount
over the amount actually distributed to the Class IA-18 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(R).
CLASS IA-19 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-19 Interest Accrual Amount
over the amount actually distributed to the Class IA-19 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(S).
CLASS IA-20 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IA-20 Interest Accrual Amount
over the amount actually distributed to the Class IA-20 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(T).
CLASS IIA-1 SHORTFALL: With respect to any Distribution Date, the
amount equal to the excess, if any, of the Class IIA-1 Interest Accrual Amount
over the amount actually distributed to the Class IIA-1 Certificateholders on
such Distribution Date pursuant to Section 6.01(b)(i)(U).
CLASS A-R SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class A-R Interest Accrual Amount over the
amount actually distributed to the Class A-R Certificates on such Distribution
Date pursuant to Section 6.01(b)(i)(W).
CLASS A-X SHORTFALL: With respect to any Distribution Date, the sum of
(i) the amount equal to the excess, if any, of the Class A-X Component One
Interest Accrual Amount over the amount actually distributed to the Class A-X
Component One in respect of the Class A-X Component One Interest Accrual Amount
on such Distribution Date pursuant to Section 6.01(b)(i)(V) and (ii) the amount
equal to the excess, if any, of the Class A-X Component Two Interest Accrual
Amount over the amount actually distributed to the Class A-X Component Two in
respect of the Class A-X Component Two Interest Accrual Amount on such
Distribution Date pursuant to Section 6.01(b)(i)(V).
CLASS A-P SHORTFALL AMOUNT: With respect to any Distribution Date prior
to and including the Credit Support Depletion Date, to the extent of amounts
available to pay the Subordinated Optimal Principal Amount (without regard to
clause (b)(2) of the definition of such term), an amount equal to the sum of (i)
the applicable PO Percentage of the principal portion of any Realized Loss
(other than an Excess Loss) with respect to a Discount Mortgage Loan and (ii)
the sum of amounts, if any, by which the amounts specified in clause (i) with
respect to each prior Distribution Date exceeded the amount actually distributed
in respect thereof on such prior Distribution Date and not subsequently
distributed to the Class A-P Certificateholders.
CLASS A PERCENTAGE: As of any Distribution Date, the fraction,
expressed as a percentage (which shall never exceed 100%), the numerator of
which is the Class A Principal Balance and the denominator of which is the
outstanding Principal Balance of the Mortgage Loans as of the immediately
preceding Due Date.
13
CLASS A PRINCIPAL BALANCE: As of any Distribution Date, (a) the Class A
Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed (or deemed distributed) to the Class A Certificateholders on
such preceding Distribution Date allocable to principal (including the principal
portion of Advances made pursuant to Section 6.03 and Realized Losses allocated
to the Class A Certificates pursuant to Section 6.04); provided that the Class A
Principal Balance on the first Distribution Date shall be the Original Class A
Principal Balance.
CLASS IA PRINCIPAL BALANCE: As of any Distribution Date, (a) the Non-PO
Class IA Principal Balance for the preceding Distribution Date less (b) amounts
distributed (or deemed distributed) to the Class IA Certificateholders on such
preceding Distribution Date allocable to principal (including the principal
portion of Advances of the Servicers made pursuant to Section 6.03 and Realized
Losses allocated to the Class IA Certificates pursuant to Section 6.04);
provided that the Non-PO Class IA Principal Balance on the first Distribution
Date shall be the Original Non-PO Class IA Principal Balance.
CLASS IIA PRINCIPAL BALANCE: As of any Distribution Date, (a) the
Non-PO Class IIA Principal Balance for the preceding Distribution Date less (b)
amounts distributed (or deemed distributed) to the Class IIA Certificateholders
on such preceding Distribution Date allocable to principal (including the
principal portion of Advances of the Servicers made pursuant to Section 6.03 and
Realized Losses allocated to the Class IIA Certificates pursuant to Section
6.04); provided that the Non-PO Class IIA Principal Balance on the first
Distribution Date shall be the Original Non-PO Class IIA Principal Balance.
CLASS B CERTIFICATES: The Class B-1, Class B-2, Class B-3, Class B-4
and Class B-5 Certificates, referred to collectively.
CLASS B-1 CERTIFICATE: Any one of the Class B-1 Certificates executed
by the Depositor and authenticated by the Trustee, subordinated in right of
payment to the Class A and Class M Certificates, substantially in the form of
the Class B Certificate set forth in Exhibit E hereto.
CLASS B-2 CERTIFICATE: Any one of the Class B-2 Certificates executed
by the Depositor and authenticated by the Trustee, subordinated in right of
payment to the Class A, Class M and Class B-1 Certificates, substantially in the
form of the Class B Certificate set forth in Exhibit E hereto.
CLASS B-3 CERTIFICATE: Any one of the Class B-3 Certificates executed
by the Depositor and authenticated by the Trustee, subordinated in right of
payment to the Class A, Class M, Class B-1 and Class B-2 Certificates,
substantially in the form of the Class B Certificate set forth in Exhibit E
hereto.
CLASS B-4 CERTIFICATE: Any one of the Class B-4 Certificates executed
by the Depositor and authenticated by the Trustee, subordinated in right of
payment to the Class A, Class M, Class B-1, Class B-2 and Class B-3
Certificates, substantially in the form of the Class B Certificate set forth in
Exhibit E hereto.
CLASS B-5 CERTIFICATE: Any one of the Class B-5 Certificates executed
by the Depositor and authenticated by the Trustee, subordinated in right of
payment to the Class A, Class M, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, substantially in the form of the Class B Certificate set forth in
Exhibit E hereto.
14
CLASS B-1 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class B-1 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class B-1 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class B-1 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS B-2 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class B-2 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class B-2 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class B-2 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS B-3 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class B-3 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class B-3 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class B-3 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS B-4 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class B-4 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class B-4 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class B-4 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS B-5 INTEREST ACCRUAL AMOUNT: With respect to any Distribution
Date, one month's interest at the Certificate Rate on the Outstanding
Certificate Principal Balance of the Class B-5 Certificates minus (i) any
Compensating Interest Shortfall allocated to the Class B-5 Certificates on such
Distribution Date pursuant to Section 6.05(b) and (ii) any Realized Loss
Interest Shortfall allocated to the Class B-5 Certificates on such Distribution
Date pursuant to Section 6.05(c).
CLASS B-1 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-1 Interest Accrual Amount over the
amount actually distributed to the Class B-1 Certificates on such Distribution
Date pursuant to Section 6.01(d)(i)(1) (A) and (B).
CLASS B-2 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-2 Interest Accrual Amount over the
amount actually distributed to the Class B-2 Certificates on such Distribution
Date pursuant to Section 6.01(d)(i)(2) (A) and (B).
CLASS B-3 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-3 Interest Accrual Amount over the
amount actually distributed to the Class B-3 Certificates on such Distribution
Date pursuant to Section 6.01(d)(i)(3) (A) and (B).
CLASS B-4 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-4 Interest Accrual Amount over the
amount actually distributed to the Class B-4 Certificates on such Distribution
Date pursuant to Section 6.01(d)(i)(4) (A) and (B).
CLASS B-5 SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-5 Interest Accrual Amount over the
amount actually distributed to the Class B-5 Certificates on such Distribution
Date pursuant to Section 6.01(d)(i)(5) (A) and (B).
CLASS B PERCENTAGE: As of any Distribution Date, the difference between
100% and the sum of (i) the Class A Percentage and (ii) the Class M Percentage
for such Distribution Date.
15
CLASS B PRINCIPAL BALANCE: As of any Distribution Date, the excess of
the Mortgage Pool Principal Balance (together with the principal portion of any
Monthly Payment due but not paid with respect to which an Advance has not been
made) over the sum of (i) the Class A Principal Balance and (ii) the Class M
Principal Balance.
CLASS M CERTIFICATE: Any one of the Class M Certificates executed by
the Trustee and authenticated by the Trustee, subordinated in right of payment
to the Class A Certificates, substantially in the form of the Class M
Certificate set forth in Exhibit D hereto.
CLASS M INTEREST ACCRUAL AMOUNT: With respect to any Distribution Date,
one (1) month's interest at the Certificate Rate on the Outstanding Certificate
Principal Balance of the Class M Certificates minus (i) any Compensating
Interest Shortfall allocated to the Class M Certificates on such Distribution
Date pursuant to Section 6.05(b) and (ii) any Realized Loss Interest Shortfall
allocated to the Class M Certificates on such Distribution Date pursuant to
Section 6.05(c).
CLASS M PERCENTAGE: As of any Distribution Date, the percentage
obtained by dividing the Class M Principal Balance by the Mortgage Pool
Principal Balance, but not more than 100%; provided, however, that on any
Distribution Date on which the Class B Percentage equals 0%, the Class M
Percentage shall equal 100% minus the Class A Percentage.
CLASS M PRINCIPAL BALANCE: As of any Distribution Date, (a) the Class M
Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Class M Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Advances of the Servicers made pursuant to Section 6.03 and Realized Losses
allocated to the Class M Certificates pursuant to Section 6.04); provided that
the Class M Principal Balance on the first Distribution Date shall be the
Original Class M Principal Balance, and provided further that if the aggregate
Outstanding Certificate Principal Balance of the Class B Certificates has been
reduced to zero, as of any Distribution Date, the Class M Principal Balance will
equal the excess of the Mortgage Pool Principal Balance (together with the
portion of any Monthly Payment due but not paid with respect to which an Advance
has not been made) over the Class A Principal Balance.
CLASS M SHORTFALL: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class M Interest Accrual Amount over the
amount actually distributed to the Class M Certificateholders on such
Distribution Date pursuant to Section 6.01(c)(i) (A) and (B).
CLOSING DATE: September 26, 2001.
CMMC: Chase Manhattan Mortgage Corporation, a New Jersey corporation,
or its successor in interest.
CMMC SERVICED MORTGAGE LOANS: The Mortgage Loans serviced by CMMC and
set forth on Exhibit A-1 attached hereto.
CODE: The Internal Revenue Code of 1986, as amended from time to time,
and any successor statutes thereto, and applicable U.S. Department of Treasury
temporary or final regulations promulgated thereunder.
COLLECTION ACCOUNT(S): The accounts created and maintained pursuant to
Section 5.08.
COMPENSATING INTEREST: The meaning specified in Section 6.05(a).
COMPENSATING INTEREST SHORTFALL: The meaning specified in Section
6.05(b).
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CO-OP LEASE: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
CO-OP LOAN: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
CORRESPONDING CERTIFICATES and CORRESPONDING SUBSIDIARY REGULAR
INTEREST: For each Subsidiary Regular Interest the Corresponding Certificates,
and for each Certificate, the Corresponding Subsidiary Regular Interest, is as
specified below:
Corresponding Certificates Corresponding Subsidiary Regular Interest
Class IA-1 and IA-13 Certificates Class IA-1 Interest
Class IA-2 Certificates Class IA-2 Interest
Class IA-3 Certificates Class IA-3 Interest
Class IA-4 Certificates Class IA-4 Interest
Class IA-5 Certificates Class IA-5 Interest
Class IA-6 Certificates Class IA-6 Interest
Class IA-7 Certificates Class IA-7 Interest
Class IA-8 and A-R Certificates Class IA-8 Interest
Class IA-9 Certificates Class IA-9 Interest
Class IA-10 Certificates Class IA-10 Interest
Class IA-12, IA-16, IA-17, Class IA-11 Interest
IA-18 and IA-19 Certificates
Class IA-14 Certificates Class IA-12 Interest
Class IA-15 Certificates Class IA-13 Interest
Class IIA-1 Certificates Class IIA-1 Interest
Class M, X-0, X-0, X-0, Class SN Interest
B-4 and B-5 Certificates
CREDIT SUPPORT: With respect to each Class of Subordinated Certificates
(other than the Class B-5 Certificates), the level of credit support supporting
such Class, expressed as a percentage of the aggregate Outstanding Certificate
Principal Balance of all Classes of Certificates (other than the Class A-P
Certificates). With respect to each Distribution Date, Credit Support for each
such Class will equal in each case the percentage, rounded to two decimal
places, obtained by dividing the aggregate Outstanding Certificate Principal
Balances immediately prior to such Distribution Date of all Classes of
Subordinated Certificates having higher numerical class designations than such
Class (for this purpose, the Class M Certificates shall be deemed to have a
lower numerical class designation than each Class of Class B Certificates) by
the aggregate Outstanding Certificate Principal Balance of all Classes of
Certificates (other than the Class A-P Certificates) immediately prior to such
Distribution Date.
CREDIT SUPPORT DEPLETION DATE: The first Distribution Date on which the
aggregate Outstanding Certificate Principal Balance of the Subordinated
Certificates has been or will be reduced to zero.
CURTAILMENT: Any Principal Prepayment which is not a Payoff.
CUT-OFF DATE: September 1, 2001.
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DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, other than such a
reduction resulting from a Deficient Valuation.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
DEFINITIVE CERTIFICATES: The Certificates referred to in Section
4.01(c).
DEPOSITOR: Chase Mortgage Finance Corporation, a Delaware corporation,
or its successor in interest or any successor under this Agreement appointed as
herein provided.
DEPOSITORY: The Depository Trust Company, the nominee of which is Cede
& Co.
DEPOSITORY AGREEMENT: The agreement referred to in Section 4.01(b).
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: The sixteenth day of the month in which the related
Distribution Date occurs (or, if such sixteenth day is not a Business Day, the
preceding Business Day).
DISCOUNT MORTGAGE LOAN: Any Mortgage Loan having a Net Mortgage Rate
less than the Remittance Rate.
DISQUALIFIED ORGANIZATION: An organization referred to in Section
860E(e)(5) of the Code.
DISTRIBUTION DATE: The 25th day of any month, or if such 25th day is
not a Business Day, the first Business Day immediately following, beginning with
October 25, 2001.
DUE DATE: The first day of each month, being the day of the month on
which each Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
DUE PERIOD: With respect to any Distribution Date, the period from the
second day of the month preceding the month in which such Distribution Date
occurs through the first day of the month in which such Distribution Date
occurs.
ELIGIBLE ACCOUNT: An account that is (i) maintained with a depository
institution the long-term unsecured debt obligations of which are rated by each
Rating Agency in one of its two highest rating categories, or (ii) maintained
with the corporate trust department of a national bank or banking corporation
which (a) has a rating of at least Baa3 or P-3 by Xxxxx'x and (b) is either The
Chase Manhattan Bank or is the corporate trust department of a national bank or
banking corporation which has a rating of at least A- or F1 by Fitch, or (iii)
an account or accounts the deposits in which are fully insured by the FDIC, or
(iv) an account or accounts in a depository institution in which such accounts
are insured by the FDIC (to the limit established by the FDIC), the uninsured
deposits in which accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to and acceptable to the Trustee and each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account and a perfected first security interest against any collateral (which
shall be limited to Eligible Investments) securing such funds that is superior
to claims of any other depositors or creditors of the depository institution
with which such account is maintained, provided, however, that such uninsured
deposits do not result in the reduction of the ratings assigned to the
Certificates by the Rating Agencies as evidenced by a letter from each Rating
Agency or (v) otherwise acceptable to each Rating Agency without reduction or
withdrawal of the rating of any Class of Certificates, as evidenced by a letter
from each Rating Agency.
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ELIGIBLE INVESTMENTS: One or more of the following:
(i) obligations of, or guaranteed as to principal and interest
by, the United States or obligations of any agency or
instrumentality thereof when such obligations are backed
by the full faith and credit of the United States;
provided that any such obligation held as a "cash flow
investment" within the meaning of section 860G(a)(6) of
the Code shall not have a remaining maturity of more than
45 days;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than two months from the date of
acquisition thereof, provided that the long-term unsecured
obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency
with its highest rating and the short-term debt
obligations of the party agreeing to repurchase are rated
with one of the two highest ratings by S&P or Xxxxx'x;
(iii) federal funds, certificates of deposit, time deposits and
bankers' acceptances (other than bankers' acceptances
issued by Chase or any of its Affiliates) (which shall
each have an original maturity of not more than 60 days
and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days) of
any United States depository institution or trust company
incorporated under the laws of the United States or any
state, provided that the long-term unsecured debt
obligations of such depository institution or trust
company at the date of acquisition thereof have been rated
by each Rating Agency with its highest rating and the
short-term obligations of such depository institution or
trust company are rated A-1+ by S&P and P-1 by Xxxxx'x;
(iv) commercial paper (other than commercial paper issued by
Chase or any of its Affiliates) (having original
maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been
rated by each Rating Agency in its highest short-term
unsecured commercial paper rating category; provided that
such commercial paper shall have a remaining maturity of
not more than 45 days;
(v) units of taxable money market funds (including those for
which the Trustee or the Servicer or any Affiliate thereof
receives compensation with respect to such investment)
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, as amended, and
which funds have been rated by each Rating Agency in its
highest rating category or which have been designated in
writing by each Rating Agency as Eligible Investments with
respect to this definition;
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(vi) other obligations or securities (other than investments or
obligations of Chase or any of its Affiliates) that are
"permitted investments" within the meaning of Section
860G(a)(5) of the Code and acceptable to each Rating
Agency rating the Certificates as an Eligible Investment
hereunder and will not result in a reduction or withdrawal
in the then current rating of any Class of Certificates,
as evidenced by a letter to such effect from each Rating
Agency and short term unsecured debt or deposits of the
obligor on such investments are rated A-1 by S&P and P-1
by Xxxxx'x.
provided that no such instrument shall be an Eligible Investment if such
instrument evidences either (a) a right to receive only interest payments with
respect to the obligations underlying such instrument, or (b) both principal and
interest payments derived from obligations underlying such instrument where the
interest and principal 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; and provided further that no such instrument shall be
purchased above par.
ERISA: The Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statutes thereto, and applicable U.S.
Department of Labor temporary or final regulations promulgated thereunder.
ERISA RESTRICTED CERTIFICATE: Any Class B-3, Class B-4 or Class B-5
Certificate or any other Certificate which at the date of determination is not
rated in one of the four highest generic rating categories by any Rating Agency.
ESCROW ACCOUNT: The account or accounts created and maintained pursuant
to Section 5.10.
ESCROW PAYMENTS: The amounts constituting applicable ground rents,
taxes, assessments, water rates, Standard Hazard Policy premiums and other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant to
a Mortgage Loan.
EVENT OF DEFAULT: Any of the events specified in Section 9.01.
EXCEPTION REPORT: The report of the Trustee referred to in Section
2.02.
EXCESS AMOUNT RATE: With respect to each Mortgage Loan, the per annum
rate of interest set forth for such Mortgage Loan on the Mortgage Loan Schedule.
EXCESS AMOUNT DISTRIBUTION: With respect to any Distribution Date, the
product of (A) one-twelfth of the weighted average, expressed as a percentage,
of the Excess Amount Rate for each Mortgage Loan having an Excess Amount Rate
exceeding 0% as of the Due Date in the month immediately preceding the month in
which such Distribution Date occurs, weighted on the basis of the respective
Principal Balances of such Mortgage Loans, which Principal Balances shall be the
Principal Balances of such Mortgage Loans at the close of business on the
immediately preceding Distribution Date after giving effect to distributions
thereon allocable to principal (or, in the case of the initial Distribution
Date, at the close of business on the Cut-off Date) and (B) the aggregate
outstanding Principal Balance of the Mortgage Loans.
EXCESS AMOUNT INTEREST: The uncertificated REMIC regular interest in
the Master REMIC representing the entitlement to the distributions on the Class
EA Interest.
20
EXCESS BANKRUPTCY LOSS: Any Bankruptcy Loss, or portion thereof, which
exceeds the then applicable Bankruptcy Amount.
EXCESS FRAUD LOSS: Any Fraud Loss, or portion thereof, which exceeds
the then applicable Fraud Loss Amount.
EXCESS LOSSES: Excess Bankruptcy Losses, Excess Fraud Losses and Excess
Special Hazard Losses, referred to collectively.
EXCESS PROCEEDS: All amounts (net of the related Servicing Advances)
received on any Mortgage Loan (whether as regular principal payments, Principal
Prepayments, Repurchase Proceeds, Liquidation Proceeds, Insurance Proceeds,
condemnation awards, or with respect to a disposition of a Mortgaged Property
which has been acquired by foreclosure or deed in lieu of foreclosure or
otherwise) in excess of the Principal Balance at the Cut-off Date of such
Mortgage Loan and accrued interest thereon at its Mortgage Rate to the Due Date
immediately succeeding the date of prepayment, repurchase or liquidation, as the
case may be.
EXCESS SPECIAL HAZARD LOSS: Any Special Hazard Loss, or portion
thereof, that exceeds the then applicable Special Hazard Amount.
FDIC: The Federal Deposit Insurance Corporation or any successor
organization.
FHLMC: The Federal Home Loan Mortgage Corporation or any successor
organization.
FIDELITY BOND: The fidelity bond and errors and omissions insurance
policies to be maintained by the Servicers pursuant to Section 5.19.
FITCH: Fitch, Inc. or its successor in interest.
FNMA: The Federal National Mortgage Association, or any successor
organization.
FNMA GUIDES: The FNMA Sellers' Guide and the FNMA Servicers' Guide, and
all amendments or additions thereto.
FRAUD LOSS: Any Realized Loss or portion thereof sustained by reason of
a default arising from fraud, dishonesty or misrepresentation in connection with
the related Mortgage Loan, including by reason of the denial of coverage under
any related Primary Insurance Policy.
FRAUD LOSS AMOUNT: As of any date of determination after the Cut-off
Date, an amount equal to: (X) prior to the first anniversary of the Cut-off
Date, 2.00% (initially, $9,002,447.00) of the aggregate outstanding principal
balance of all of the Mortgage Loans as of the Cut-off Date minus the aggregate
amount of Fraud Loss on the Mortgage Loans allocated to the Certificates in
accordance with Section 6.04 since the Cut-off Date up to such date of
determination and (Y) from the first to the fifth anniversary of the Cut-off
Date, (1) 1.00% of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the most recent anniversary of the Cut-off Date minus (2)
the Fraud Losses allocated to the Certificates in accordance with Section 6.04
since the most recent anniversary of the Cut-off Date up to such date of
determination. On and after the fifth anniversary of the Cut-off Date, the Fraud
Loss Amount shall be zero.
GROUP ONE CLASS A-P AMOUNT: With respect to any Distribution Date, the
applicable PO Percentage of (i) all principal received on or in respect of each
Discount Mortgage Loan in Mortgage Group One (exclusive of any amounts in
respect of any Monthly Payment) during the related Principal Prepayment Period
and (ii) all principal received as part of a Monthly Payment on or in respect of
a Discount Mortgage Loan in Mortgage Group One during the related Due Period.
21
GROUP ONE MORTGAGE LOANS: The Mortgage Loans in Mortgage Group One.
GROUP ONE MORTGAGE POOL PRINCIPAL BALANCE: As of any date of
determination, the aggregate of the Principal Balances of each Outstanding
Mortgage Loan in Mortgage Group One on such date of determination less the
principal portion of any Monthly Payment due but not paid with respect to which
an Advance has not been made.
GROUP ONE NON-PO ALLOCATED AMOUNT: At the time of any determination,
the amount derived by (i) multiplying the Outstanding Certificate Principal
Balance of each Mortgage Loan in Mortgage Group One on such date of
determination by the Non-PO Percentage with respect to such Mortgage Loan and
(ii) summing the results.
GROUP ONE REMITTANCE RATE: 6.75% per annum.
GROUP ONE STRIPPED INTEREST RATE: The excess, if any, of the weighted
average Net Mortgage Rate for such Group One Non-Discount Mortgage Loans over
the Group One Remittance Rate.
GROUP ONE SUBORDINATED AMOUNT: For any Distribution Date, the excess of
the aggregate Scheduled Principal Balance of the Group One Mortgage Loans over
the aggregate Outstanding Principal Balance of the Class IA Certificates.
GROUP TWO CLASS A-P AMOUNT: With respect to any Distribution Date, the
applicable PO Percentage of (i) all principal received on or in respect of each
Discount Mortgage Loan in Mortgage Group Two (exclusive of any amounts in
respect of any Monthly Payment) during the related Principal Prepayment Period
and (ii) all principal received as part of a Monthly Payment on or in respect of
a Discount Mortgage Loan in Mortgage Group Two during the related Due Period.
GROUP TWO MORTGAGE LOANS: The Mortgage Loans in Mortgage Group Two.
GROUP TWO MORTGAGE POOL PRINCIPAL BALANCE: As of any date of
determination, the aggregate of the Principal Balances of each Outstanding
Mortgage Loan in Mortgage Group Two on such date of determination less the
principal portion of any Monthly Payment due but not paid with respect to which
an Advance has not been made.
GROUP TWO NON-PO ALLOCATED AMOUNT: At the time of any determination,
the amount derived by (i) multiplying the Outstanding Certificate Principal
Balance of each Mortgage Loan in Mortgage Group Two on such date of
determination by the Non-PO Percentage with respect to such Mortgage Loan and
(ii) summing the results.
GROUP TWO REMITTANCE RATE: 6.50% per annum.
GROUP TWO STRIPPED INTEREST RATE: The excess, if any, of the weighted
average Net Mortgage Rate for such Group Two Non-Discount Mortgage Loans over
the Group Two Remittance Rate.
GROUP TWO SUBORDINATED AMOUNT: For any Distribution Date, the excess of
the aggregate Scheduled Principal Balance of the Group Two Mortgage Loans over
the aggregate Outstanding Principal Balance of the Class IIA Certificates.
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INDIRECT PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant, either directly or indirectly.
INSURANCE PROCEEDS: Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan, net of costs of collecting such
proceeds and net of amounts released to the Mortgagor or applied to the
restoration of the Mortgaged Property.
INSURED EXPENSES: Expenses covered by any insurance policy.
LATE COLLECTIONS: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Liquidation Proceeds, condemnation proceeds, Insurance Proceeds, or with
respect to a disposition of a Mortgaged Property which has been acquired by
foreclosure or deed in lieu of foreclosure or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
LIBOR: With respect to any Distribution Date and the Certificate Rates
on the Class IA-1, Class IA-11 and Class IA-13 Certificates, LIBOR as determined
in accordance with Section 6.07.
LIBOR BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the city of London, England are
required or authorized by law to be closed.
LIQUIDATED MORTGAGE LOAN: Any Mortgage Loan (a) as to which the related
Servicer has determined that all amounts which it expects to recover from or on
account of such Mortgage Loan or property acquired in respect thereof have been
recovered, (b) as to which a Cash Liquidation has taken place or (c) with
respect to which the Mortgaged Property has been acquired by foreclosure or deed
in lieu of foreclosure and a disposition (the term disposition shall include,
for purposes of a repurchase pursuant to Section 11.01, any repurchase of a
Mortgaged Property pursuant to such Section) of such Mortgaged Property has
occurred.
LIQUIDATION EXPENSES: Expenses which are incurred by the applicable
Servicer or any Sub-Servicer in connection with the liquidation of any defaulted
Mortgage Loan or property acquired in respect thereof including, without
limitation, legal fees and expenses, any unreimbursed amount expended by the
applicable Servicer pursuant to Sections 5.16 and 5.21 respecting the related
Mortgage Loan and any related and unreimbursed expenditures for real estate
property taxes or for property restoration or preservation.
LIQUIDATION PROCEEDS: Cash (including Insurance Proceeds) received by
the applicable Servicer in connection with the liquidation of any Mortgage Loan
or Mortgaged Property acquired in respect thereof, whether through the sale or
assignment of such Mortgage Loan (other than pursuant to Section 5.21),
trustee's sale, foreclosure sale or otherwise, or the sale of the Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan other than amounts required to be paid to the Mortgagor pursuant to law or
the terms of the applicable Mortgage Note.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the principal amount of the related Mortgage Loan at the
time of origination (or, (i) for purposes of Section 5.15, at the time of
determination and (ii) for purposes of a Mortgage Loan with respect to which a
conversion from adjustable rate to fixed rate has occurred, at the time of
initial origination) and the denominator of which is the appraised value of the
related Mortgaged Property at the time of origination or, in the case of a
Mortgage Loan financing the acquisition of the Mortgaged Property, the sales
price of the Mortgaged Property, if such sales price is less than such appraised
value.
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LOCK-OUT PERCENTAGE: With respect to any Distribution Date, the lesser
of (I) (A) the Outstanding Certificate Principal Balance of the Class IA-4
Certificates divided by (B) the Group One Non-PO Allocated Amount, in each case
immediately prior to the Distribution Date and (II) 100.00%.
LOCK-OUT PREPAYMENT PERCENTAGE: The product of (a) the Lock-out
Percentage and (b) the Step Down Percentage.
LOCK-OUT PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the sum of (i) the Adjusted Lock-out Percentage of the amount
with respect to Mortgage Group One which is referred to in clause (i) of (I) the
definition of Non-PO Class IA Optimal Principal Amount and (II) the definition
of Subordinated Optimal Principal Amount and (ii) the Lock-out Prepayment
Percentage of the amounts with respect to Mortgage Group One which are referred
to in clauses (ii) through (v) of (I) the definition of Non-PO Class IA Optimal
Principal Amount and (II) the definition of Subordinated Optimal Principal
Amount.
MASTER REMIC: The pool of assets consisting of the Subsidiary Regular
Interests and all payments of principal or interest on or with respect to the
Subsidiary Regular Interests after the Cut-off Date.
MASTER RESIDUAL INTEREST: The interest in the Master REMIC represented
by (i) amounts, if any, remaining in the Collection Account following
termination of the Trust Fund after payments to the Class A Certificateholders
(other than the Class A-R Certificateholders), the Class M Certificateholders,
the Class B Certificateholders the holders of the Excess Amount Interest and the
holders of the Class A-R Certificates with respect to their interests in the
Subsidiary Residual Interest (or the holders of any separate certificates
representing the Subsidiary Residual Interest) and (ii) amounts paid in respect
of principal accrued interest on the Class A-R Certificates.
MASTER SERVICER FEE: With respect to any Mortgage Loan and any
Distribution Date, the fee payable to the Master Servicer pursuant to Section
8.07 equal to the product of (a) 1/12th of the Master Servicer Fee Rate and (b)
the Principal Balance of such Mortgage Loan immediately prior to such
Distribution Date.
MASTER SERVICER FEE RATE: A per annum rate equal to 0.0265%.
MASTER SERVICER: Chase Manhattan Mortgage Corporation, or its successor
in interest or permitted assigns.
MODIFIED MORTGAGE LOAN: Any Mortgage Loan which the related Servicer
has modified pursuant to Section 5.01.
MONTHLY PAYMENT: The minimum required monthly payment of principal and
interest due on a Mortgage Loan as specified in the Mortgage Note for any Due
Date (before any adjustment to such scheduled amount by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace period).
Monthly Payments shall be deemed due on an Outstanding Mortgage Loan until such
time as it becomes a Liquidated Mortgage Loan.
XXXXX'X: Xxxxx'x Investors Service, Inc. or its successor in interest.
MORTGAGE: With respect to a Mortgage Loan that is not a Co-op Loan, the
mortgage, deed of trust or other instrument creating a first lien or a first
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note. With respect to a Co-op Loan, the security agreement creating a
security interest in the stock allocated to a dwelling unit in a residential
cooperative housing corporation and pledged to secure such Co-op Loan and the
related Co-op Lease.
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MORTGAGE FILE: As to each Mortgage Loan, the items referred to in
Exhibit B annexed hereto.
MORTGAGE GROUP: Pertaining to Mortgage Group One or Mortgage Group Two,
as the case may be.
MORTGAGE GROUP ONE: The Mortgage Loans in the Trust Fund that are
designated in the Mortgage Loan Schedule as comprising Mortgage Group One.
MORTGAGE GROUP ONE SUBORDINATED PERCENTAGE: As of any Distribution
Date, the difference between 100% and the Non-PO Class IA Percentage.
MORTGAGE GROUP ONE SUBORDINATED PREPAYMENT PERCENTAGE: As of any
Distribution Date, the difference between 100% and the Non-PO Class IA
Prepayment Percentage.
MORTGAGE GROUP TWO: The Mortgage Loans in the Trust Fund that are
designated in the Mortgage Loan Schedule as comprising Mortgage Group Two.
MORTGAGE GROUP TWO SUBORDINATED PERCENTAGE: As of any Distribution
Date, the difference between 100% and the Non-PO Class IIA Percentage.
MORTGAGE GROUP TWO SUBORDINATED PREPAYMENT PERCENTAGE: As of any
Distribution Date, the difference between 100% and the Non-PO Class IIA
Prepayment Percentage.
MORTGAGE LOAN: An individual mortgage loan and all rights with respect
thereto, evidenced by a Mortgage and a Mortgage Note, sold and assigned by the
Depositor to the Trustee and which is subject to this Agreement and included in
the Trust Fund. The Mortgage Loans originally sold and subject to this Agreement
are identified on the Mortgage Loan Schedules.
MORTGAGE LOAN SCHEDULE(S): The schedules of Mortgage Loans attached
hereto as Exhibit A-1 and Exhibit A-2 (or either schedule of Mortgage Loans, as
the context requires) as they may be amended in accordance with Section 3.03,
setting forth the following information as to each Mortgage Loan: (i) the
Mortgage Loan identifying number; (ii) the street address of the Mortgaged
Property (or Underlying Mortgaged Property, in the case of a Co-op Loan)
including the zip code; (iii) an indication of whether the Mortgaged Property
(or the related residential dwelling unit in the Underlying Mortgaged Property,
in the case of a Co-op Loan) is owner-occupied; (iv) the property type of the
Mortgaged Property; (v) the original number of months to stated maturity; (vi)
the number of months remaining to stated maturity from the Cut-off Date; (vii)
the original Loan-to-Value Ratio; (viii) the original principal balance of the
Mortgage Loan; (ix) the unpaid principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date; (x) the Mortgage Rate; (xi) the amount of
the current Monthly Payment; (xii) the Excess Amount Rate with respect to such
Mortgage Loan; (xiii) the Mortgage Group within which such Mortgage Loan is
contained; and (xiv) the PO Percentage with respect to such Mortgage Loan
MORTGAGE NOTE: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
MORTGAGE POOL: The pool of Mortgage Loans held in the Trust Fund.
25
MORTGAGE POOL PRINCIPAL BALANCE: As of any date of determination, the
aggregate of the Principal Balances of each Outstanding Mortgage Loan on such
date of determination less the principal portion of any Monthly Payment due but
not paid with respect to which an Advance has not been made, initially
$450,122,342.22.
MORTGAGED PROPERTY: The property securing a Mortgage Note.
MORTGAGE RATE: With respect to each Mortgage Loan, the per annum rate
of interest borne by the Mortgage Loan, as specified in the Mortgage Note. The
Mortgage Rate for any Mortgage Loan shall be zero with respect to the period
prior to the period during which interest accrues with respect to such Mortgage
Loan's first Monthly Payment.
MORTGAGOR: The obligor on a Mortgage Note.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
NET MORTGAGE RATE: With respect to each Mortgage Loan, a per annum rate
of interest for the applicable period equal to the Mortgage Rate less the
applicable Servicing Fee Rate, the Master Servicer Fee Rate and the applicable
Excess Amount Rate.
NON DISCOUNT MORTGAGE LOANS: The Mortgage Loans having Net Mortgage
Rates in excess of the Remittance Rate.
NON-PO CLASS IA OPTIMAL PRINCIPAL AMOUNT: With respect to any
Distribution Date, the lesser of (a) the Non-PO Class IA Principal Balance and
(b) the sum of:
(i) the Non-PO Class IA Percentage of the applicable Non-PO
Percentage of the principal portion of all Monthly Payments, whether or
not received, which were due during the related Due Period on Group One
Mortgage Loans which were outstanding during such Due Period;
(ii) the Non-PO Class IA Prepayment Percentage of the applicable
Non-PO Percentage of all Principal Prepayments made on any Group One
Mortgage Loan during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Loan not described in (iv)
below, the Non-PO Class IA Percentage of the applicable Non-PO
Percentage of the principal portion of all Insurance Proceeds,
condemnation awards and any other cash proceeds from a source other
than the applicable Mortgagor, to the extent required to be deposited
in the Collection Account pursuant to Section 5.08(iv) and (v), which
were received during the related Principal Prepayment Period with
respect to a Group One Mortgage Loan, net of related unreimbursed
Servicing Advances and net of any portion thereof which, as to any such
Mortgage Loan, constitutes Late Collections that have been the subject
of an Advance on any prior Distribution Date;
(iv) with respect to each Group One Mortgage Loan which has become
a Liquidated Mortgage Loan during the related Principal Prepayment
Period, the lesser of (A) the Non-PO Class IA Percentage of the
applicable Non-PO Percentage of an amount equal to the Principal
Balance of such Liquidated Mortgage Loan as of the Due Date immediately
preceding the date on which it became a Liquidated Mortgage Loan and
(B) the Non-PO Class IA Prepayment Percentage of the applicable Non-PO
Percentage of the Net Liquidation Proceeds with respect to such
liquidated Mortgage Loan (net of any unreimbursed Advances);
26
(v) with respect to each Group One Mortgage Loan repurchased
during the related Principal Prepayment Period pursuant to Section
2.02, 3.01, 5.21 or 11.01, an amount equal to the Non-PO Class IA
Prepayment Percentage of the applicable Non-PO Percentage of the
principal portion of the Purchase Price (net of amounts with respect to
which a distribution of principal has previously been made to the
Non-PO Class IA Certificateholders); and
(vi) on or after the Credit Support Depletion Date, the excess of
the Non-PO Class IA Principal Balance (calculated after giving effect
to reductions thereof on such Distribution Date with respect to the
amounts described in (i) - (v) above) over the Group One Non-PO
Allocated Amount, as of the preceding Distribution Date.
NON-PO CLASS IIA OPTIMAL PRINCIPAL AMOUNT: With respect to any
Distribution Date, the lesser of (a) the Non-PO Class IIA Principal Balance and
(b) the sum of:
(i) the Non-PO Class IIA Percentage of the applicable Non-PO
Percentage of the principal portion of all Monthly Payments, whether or
not received, which were due during the related Due Period on Group Two
Mortgage Loans which were outstanding during such Due Period;
(ii) the Non-PO Class IIA Prepayment Percentage of the applicable
Non-PO Percentage of all Principal Prepayments made on any Group Two
Mortgage Loan during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Loan not described in (iv)
below, the Non-PO Class IIA Percentage of the applicable Non-PO
Percentage of the principal portion of all Insurance Proceeds,
condemnation awards and any other cash proceeds from a source other
than the applicable Mortgagor, to the extent required to be deposited
in the Collection Account pursuant to Section 5.08(iv) and (v), which
were received during the related Principal Prepayment Period with
respect to a Group Two Mortgage Loan, net of related unreimbursed
Servicing Advances and net of any portion thereof which, as to any such
Mortgage Loan, constitutes Late Collections that have been the subject
of an Advance on any prior Distribution Date;
(iv) with respect to each Mortgage Loan which has become a
Liquidated Mortgage Loan during the related Principal Prepayment
Period, the lesser of (A) the Non-PO Class IIA Percentage of the
applicable Non-PO Percentage of an amount equal to the Principal
Balance of such Liquidated Mortgage Loan as of the Due Date immediately
preceding the date on which it became a Liquidated Mortgage Loan and
(B) the Non-PO Class IIA Prepayment Percentage of the applicable Non-PO
Percentage of the Net Liquidation Proceeds with respect to such
liquidated Mortgage Loan (net of any unreimbursed Advances);
(v) with respect to each Mortgage Loan repurchased during the
related Principal Prepayment Period pursuant to Section 2.02, 3.01,
5.21 or 11.01, an amount equal to the Non-PO Class IIA Prepayment
Percentage of the applicable Non-PO Percentage of the applicable Non-PO
Percentage of the principal portion of the Purchase Price (net of
amounts with respect to which a distribution of principal has
previously been made to the Non-PO Class A Certificateholders); and
(vi) on or after the Credit Support Depletion Date, the excess of
the Non-PO Class IIA Principal Balance (calculated after giving effect
to reductions thereof on such Distribution Date with respect to the
amounts described in (i) - (v) above) over the Group Two Non-PO
Allocated Amount, as of the preceding Distribution Date.
27
NON-PO CLASS IA PERCENTAGE : As of any Distribution Date, a fraction,
expressed as a percentage (which shall never exceed 100%), the numerator of
which is the Non-PO Class IA Principal Balance and the denominator of which is
the Group One Non-PO Allocated Amount as of the immediately preceding Due Date.
NON-PO CLASS IIA PERCENTAGE : As of any Distribution Date, a fraction,
expressed as a percentage (which shall never exceed 100%), the numerator of
which is the Non-PO Class IIA Principal Balance and the denominator of which is
the Group Two Non-PO Allocated Amount of the immediately preceding Due Date.
NON-PO CLASS IA PREPAYMENT PERCENTAGE: As of any Distribution Date up
to and including the Distribution Date in September 2006, 100%; as of any
Distribution Date in the first year thereafter, the Non-PO Class IA Percentage
plus 70% of the Mortgage Group One Subordinated Percentage for such Distribution
Date; as of any Distribution Date in the second year thereafter, the Non-PO
Class IA Percentage plus 60% of the Mortgage Group One Subordinated Percentage
for such Distribution Date; as of any Distribution Date in the third year
thereafter, the Non-PO Class IA Percentage plus 40% of the Mortgage Group One
Subordinated Percentage for such Distribution Date; as of any Distribution Date
in the fourth year thereafter, the Non-PO Class IA Percentage plus 20% of the
Mortgage Group One Subordinated Percentage for such Distribution Date; and as of
any Distribution Date after the fourth year thereafter, the Non-PO Class IA
Percentage; provided that, if the Non-PO Class IA Percentage as of any such
Distribution Date is greater than the Non-PO Class IA Percentage on the first
Distribution Date, the Non-PO Class IA Prepayment Percentage shall be 100%; and
provided further, however, that whenever the Non-PO Class IA Percentage equals
0%, the Non-PO Class IA Prepayment Percentage shall equal 0%; and provided
further that no reduction of the Non-PO Class IA Prepayment Percentage below the
level in effect for the most recent period shall occur with respect to any
Distribution Date unless, as of the last day of the month preceding such
Distribution Date, (i) the aggregate outstanding principal balance of Mortgage
Loans with respect to both Mortgage Groups, each taken individually, delinquent
60 days or more (including for this purpose any Mortgage Loans in foreclosure
and Mortgage Loans with respect to which the related Mortgaged Property has been
acquired by the Trust Fund) does not exceed 50% of the Mortgage Group One
Subordinated Percentage of the Mortgage Pool Principal Balance with respect to
Mortgage Group One as of such date and (ii) cumulative Realized Losses with
respect to both Mortgage Groups, each taken individually, do not exceed (a) 30%
of the related Subordinated Percentage of the Mortgage Pool Principal Balance
with respect to the related Mortgage Group as of the date of issuance of the
Certificates (the related "Original Subordinated Principal Balance") if such
Distribution Date occurs between and including October 2006 and September 2007,
(b) 35% of the related Original Subordinated Principal Balance if such
Distribution Date occurs between and including October 2007 and September 2008,
(c) 40% of the related Original Subordinated Principal Balance if such
Distribution Date occurs between and including October 2008 and September 2009,
(d) 45% of the related Original Subordinated Principal Balance if such
Distribution Date occurs between and including October 2009 and September 2010,
and (e) 50% of the related Original Subordinated Principal Balance if such
Distribution Date occurs during or after October 2010.
NON-PO CLASS IIA PREPAYMENT PERCENTAGE: As of any Distribution Date up
to and including the Distribution Date in September 2006, 100%; as of any
Distribution Date in the first year thereafter, the Non-PO Class IIA Percentage
plus 70% of the Mortgage Group Two Subordinated Percentage for such Distribution
Date; as of any Distribution Date in the second year thereafter, the applicable
Non-PO Class IIA Percentage plus 60% of the Mortgage Group Two Subordinated
Percentage for such Distribution Date; as of any Distribution Date in the third
year thereafter, the Non-PO Class IIA Percentage plus 40% of the Mortgage Group
Two Subordinated Percentage for such Distribution Date; as of any Distribution
Date in the fourth year thereafter, the applicable Non-PO Class IIA Percentage
plus 20% of the Mortgage Group Two Subordinated Percentage for such Distribution
28
Date; and as of any Distribution Date after the fourth year thereafter, the
Non-PO Class IIA Percentage; provided that, if the Non-PO Class IIA Percentage
on the first Distribution Date is greater than the Non-PO Class IIA Percentage,
the Non-PO Class IIA Prepayment Percentage shall be 100%; and provided further,
however, that whenever the Non-PO Class IIA Percentage equals 0%, the Non-PO
Class IIA Prepayment Percentage shall equal 0%; and provided further that no
reduction of the Non-PO Class IIA Prepayment Percentage below the level in
effect for the most recent period shall occur with respect to any Distribution
Date unless, as of the last day of the month preceding such Distribution Date,
(i) the aggregate outstanding principal balance of Mortgage Loans with respect
to both Mortgage Groups, each taken individually, delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and Mortgage Loans
with respect to which the related Mortgaged Property has been acquired by the
Trust Fund) does not exceed 50% of the Mortgage Group Two Subordinated
Percentage of the Mortgage Pool Principal Balance with respect to Mortgage Group
Two as of such date and (ii) cumulative Realized Losses with respect to both
Mortgage Groups, each taken individually, do not exceed (a) 30% of the related
Subordinated Percentage of the Mortgage Pool Principal Balance with respect to
the related Mortgage Group as of the date of issuance of the Certificates (the
related "Original Subordinated Principal Balance") if such Distribution Date
occurs between and including October 2006 and September 2007, (b) 35% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
between and including October 2007 and September 2008, (c) 40% of the related
Original Subordinated Principal Balance if such Distribution Date occurs between
and including October 2008 and September 2009, (d) 45% of the related Original
Subordinated Principal Balance if such Distribution Date occurs between and
including October 2009 and September 2010, and (e) 50% of the related Original
Subordinated Principal Balance if such Distribution Date occurs during or after
October 2010.
NON-PO CLASS IA PRINCIPAL BALANCE: As of any Distribution Date, (a) the
Non-PO Class IA Principal Balance for the immediately preceding Distribution
Date less (b) amounts distributed to the Class IA Certificateholders on such
preceding Distribution Date allocable to principal (including the principal
portion of Advances of the Servicers made pursuant to Section 6.03 and Realized
Losses allocated to the Class IA Certificates pursuant to Section 6.04);
provided that the Non-PO Class IA Principal Balance on the first Distribution
Date shall be the Original Non-PO Class IA Principal Balance.
NON-PO CLASS IIA PRINCIPAL BALANCE: As of any Distribution Date, (a)
the Non-PO Class IIA Principal Balance for the immediately preceding
Distribution Date less (b) amounts distributed to the Class IIA
Certificateholders on such preceding Distribution Date allocable to principal
(including the principal portion of Advances of the Servicers made pursuant to
Section 6.03 and Realized Losses allocated to the Class IIA Certificates
pursuant to Section 6.04); provided that the Non-PO Class IIA Principal Balance
on the first Distribution Date shall be the Original Non-PO Class IIA Principal
Balance.
NON-PO CLASS IA PRINCIPAL PAYMENT RULES:
(I) With respect to any Distribution Date prior to the Credit Support
Depletion Date, distributions to the Non-PO Class IA Certificateholders pursuant
to Section 6.01(b)(ii)(A) shall be made in the following amounts and priority:
(A) the Class IA Principal Distribution Amount will be distributed as
follows:
first, to the Class A-R Certificate, until the Outstanding Certificate
Principal Balance of such Class has been reduced to zero.
second, to the Class IA-4 Certificates, up to the Lockout Principal
Distribution Amount, until the Outstanding Certificate Principal Balance of such
Class has been reduced to zero;
third, concurrently,
29
(0) 00.0000000000% of the portion of the Non-PO Class IA Optimal
Principal Amount remaining after making the distributions described
in clauses first and second above as follows:
(a) first, concurrently until the Outstanding Principal Balance of the
Class IA-IO Certificates has been reduced to zero,
(i) 72.5123906378% to the Class IA-1, Class IA-10 and Class IA-13
Certificates as follows: concurrently, 22.2222214342% to the Class IA-1 and
Class IA-13 Certificates, sequentially, until the Outstanding Certificate
Principal Balance of each such Class has been reduced to zero and 77.7777785658%
to the Class IA-10 Certificates, until the Outstanding Certificate Principal
Balance of such Class has been reduced to zero; and
(ii) 27.4876093622% to the Class IA-5 Certificates;
(b) second, concurrently, until the Outstanding Certificate Principal
Balance of the Class IA-5 Certificates has been reduced to zero,
(i) 72.5111329157% to the Class IA-2 Certificates, until the
Outstanding Certificate Principal Balance of such Class has been reduced to
zero; and
(ii) 27.4888670843% to the Class IA-5 Certificates until the
Outstanding Certificate Principal Balance of such Class has been reduced to
zero; and
(c) third, to the Class IA-2, Class IA-6, Class IA-7 and Class IA-8
Certificates, sequentially, until the Outstanding Certificate Principal Balance
of each such Class has been reduced to zero;
(d) fourth, to the Class IA-3 and Class IA-9 Certificates, pro rata,
based upon their Outstanding Certificate Principal Balances, until the
Outstanding Certificate Principal Balance of each such Class has been reduced to
zero;
(0) 00.0000000000% of the portion of the Non-PO Class IA Optimal
Principal Amount remaining after making the distributions described
in clauses first and second above as follows
(a) first, concurrently, 29.9985469340% to the Class IA-1, Class IA-13
and Class IA-15 Certificates, sequentially, until the Outstanding Certificate
Principal Balance of each such Class has been reduced to zero and 70.0014530660%
to the Class IA-14 Certificates, until the Outstanding Certificate Principal
Balance of such Class has been reduced to zero;
(b) second, sequentially to the Class IA-12, Class IA-16, Class IA-17,
Class IA-18 and Class IA-19 Certificates, until the Outstanding Certificate
Principal Balance of such Class has been reduced to zero;
fourth, to the Class IA-4 Certificates, until the Outstanding
Certificate Principal Balance of such Class has been reduced to zero.
(II) With respect to any Distribution Date on or after the Credit
Support Depletion Date, distributions pursuant to Section 6.01(b)(ii)(A) shall
be made pro rata among the outstanding Classes of Non-PO Class IA Certificates
in relation to the respective Outstanding Certificate Principal Balances of such
outstanding Classes, and not in accordance with the priority of payments among
such Classes set forth in clause (I) above.
30
NON PO PERCENTAGE: With respect to each Mortgage Loan, the fraction,
expressed as a percentage (but not greater than 100%), the numerator of which
equals the applicable Net Mortgage Rate and the denominator of which equals the
applicable Remittance Rate:
NONRECOVERABLE ADVANCE: Any Advance previously made or proposed to be
made in respect of a Mortgage Loan by the applicable Servicer pursuant to
Section 6.03 which, in the good faith judgment of such Servicer, will not or, in
the case of a proposed Advance, would not, ultimately be recoverable by such
Servicer from Late Collections or otherwise. The determination by such Servicer
that it has made, or would be making, a Nonrecoverable Advance shall be
evidenced by a certificate of a Servicing Officer of such Servicer delivered to
the Trustee, any co-trustee, the Master Servicer and the Depositor and detailing
the reasons for such determination.
OFFICERS' CERTIFICATE: A certificate signed by two of the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries or any other duly authorized officer of the Depositor, the Master
Servicer or either Servicer, and delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Depositor, the Master Servicer or either Servicer and who is reasonably
acceptable to the Trustee.
ORIGINAL CERTIFICATE PRINCIPAL BALANCE: With respect to any Class or
Component of Certificates, the amount specified for such Class or Component in
Section 4.01(d).
ORIGINAL CLASS A PRINCIPAL BALANCE: $437,068,793.00
ORIGINAL CLASS IA PRINCIPAL BALANCE: $291,976,661.00
ORIGINAL CLASS IIA PRINCIPAL BALANCE: $145,092,132.00
ORIGINAL CLASS M PRINCIPAL BALANCE: $5,176,407.00
ORIGINAL CLASS B PRINCIPAL BALANCE: $7,877,142.68
ORIGINAL CREDIT SUPPORT: With respect to any Class of Subordinated
Certificates (other than the Class B-5 Certificates), the level of Credit
Support indicated below:
Class M: 1.75%
Class B-1: 1.10%
Class B-2: 0.60%
Class B-3: 0.40%
Class B-4: 0.20%
OUTSTANDING CERTIFICATE GROUP: With respect to any Distribution Date,
any Certificate Group which has not become a Retired Certificate Group on any
prior Distribution Date.
ORIGINAL SUBORDINATED PRINCIPAL BALANCE: The aggregate Original
Certificate Principal Balance of the Subordinated Certificates.
31
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE: With respect to any Class or
Component (other than the Class IA-11, Class IA-20 and Class A-X Certificates)
of Certificates and any Distribution Date, the Original Certificate Principal
Balance of such Class or Component minus the sum of (i) any distributions of
principal made on such Class or Component prior to such Distribution Date and
(ii) any Realized Losses allocated to such Class or Component prior to such
Distribution Date; provided, however, that (I) with respect to the Class of
Class B Certificates then outstanding having the highest numerical class
designation, the Outstanding Certificate Principal Balance of such Class shall
equal the excess of the Mortgage Pool Principal Balance (together with the
principal portion of any Monthly Payment due but not paid with respect to which
an Advance has not been made) over the sum of the Outstanding Certificate
Principal Balances of all Classes of Certificates (other than the Class of Class
B Certificates then outstanding having the highest numerical class designation);
and (II) during such time as the Outstanding Certificate Principal Balance of
the Class B-1 Certificates equals zero, with respect to the Class M
Certificates, the Outstanding Certificate Principal Balance of such Class shall
equal the excess of the Mortgage Pool Principal Balance (together with the
principal portion of any Monthly Payment due but not paid with respect to which
an Advance has not been made) over the Class A Principal Balance.
OUTSTANDING MORTGAGE LOAN: As to any Distribution Date, a Mortgage Loan
which was not paid in full during the related or any previous Principal
Prepayment Period, which did not become a Liquidated Mortgage Loan during the
related or any previous Principal Prepayment Period and which was not
repurchased under Section 2.02, 3.01, 5.21 or 11.01 during the related or any
previous Principal Prepayment Period.
PASS-THRU ENTITY: A "Pass-Thru Entity" as defined in Section 860E(e)(6)
of the Code.
PAYING AGENT: The Person appointed by the Trustee as Paying Agent
pursuant to Section 4.05.
PAYOFF: Any Mortgagor payment of principal on a Mortgage Loan equal to
the entire outstanding 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 payment-in-full.
PAYOFF EARNINGS: For any Distribution Date with respect to each WMMSC
Serviced Mortgage Loan on which a Payoff was received by the related Principal
Prepayment Period, the aggregate of the interest earned by the related Servicer
from investment in the Collection Account of 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 a 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 fifteenth
calendar day of such month, an amount of interest thereon at the applicable Net
Mortgage Rate from the first day of the month of such Distribution Date through
the day of receipt thereof.
PERCENTAGE INTEREST: As to any Certificate (other than a Class IA-11,
Class IA-20 or Class A-X Certificate), the percentage interest evidenced thereby
in distributions required to be made hereunder, such percentage interest being
equal, with respect to any Class, to the percentage obtained by dividing the
Outstanding Certificate Principal Balance of such Certificate by the aggregate
of the Outstanding Certificate Principal Balances of all the Certificates of
such Class and with respect to all Certificates, the percentage obtained by
dividing the Outstanding Certificate Principal Balance of such Certificate by
the aggregate of the Outstanding Certificate Principal Balances of all the
Certificates. With respect to any Class IA-11, Class IA-20 or Class A-X
Certificate, the percentage interest specified on the face of such Certificate.
32
PERMITTED ACTIVITIES: The primary activities of the Trust created
pursuant to this Agreement which shall be: (i) holding Mortgage Loans
transferred from the Depositor and other assets of the Trust Fund, including any
credit enhancement and passive derivative financial instruments that pertain to
beneficial interests issued or sold to parties other than the Depositor, its
Affiliates, or its agents; (ii) issuing certificates and other interests in the
assets of the Trust Fund; (iii) receiving collections on the Mortgage Loans and
making payments on such certificates and interests in accordance with the terms
of this Agreement; and (iv) engaging in other activities that are necessary or
incidental to accomplish these limited purposes, which activities cannot be
contrary to the status of the Trust Fund as a qualified special purpose entity
under existing accounting literature.
PERSON: Any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
PO PERCENTAGE: The PO Percentage with respect to each Mortgage Loan as
identified on the Mortgage Loan Schedule, such percentage being equal to the
fraction, expressed as a percentage (but not less than 0%), the numerator of
which equals the excess of the Remittance Rate over the applicable Net Mortgage
Rate and the denominator of which equals the Remittance Rate.
PRIMARY INSURANCE POLICY: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 5.15 hereof.
PRINCIPAL BALANCE: At the time of any determination, the principal
balance of a Mortgage Loan remaining to be paid at the close of business on the
Cut-off Date (after deduction of all principal payments due on or before the
Cut-off Date whether or not paid) (or, in the case of a substitute Mortgage Loan
included in the Trust Fund pursuant to Section 3.04, the close of business as of
the date of substitution) reduced by all amounts previously distributed to
Certificateholders that are allocable to payments of principal on such Mortgage
Loan (including the principal portion of Advances of the related Servicer made
pursuant to Section 6.03).
PRINCIPAL PREPAYMENT: Any payment or other recovery of principal on a
Mortgage Loan (other than Late Collections) which constitutes a Payoff or a
Curtailment; provided, however, that the term Principal Prepayment does not
include Insurance Proceeds, Liquidation Proceeds, condemnation awards or other
cash proceeds from a source other than the applicable Mortgagor.
PRINCIPAL PREPAYMENT PERIOD: With respect to any Distribution Date and
(i) each Principal Prepayment on any CMMC Serviced Mortgage Loan and (ii) each
Curtailment on any WMMSC Serviced Mortgage Loan, the period beginning on the
first day of the month preceding the month in which such Distribution Date
occurs and ending on the last day of such month. With respect to any
Distribution Date and each Payoff on any WMMSC Serviced Mortgage Loan, the
period beginning on the fifteenth day of the month preceding the month in which
such Distribution Date occurs and ending on the fourteenth day of the month in
which such Distribution Date occurs.
PURCHASE PRICE: With respect to any Mortgage Loan required to be
purchased on any date pursuant to Section 2.02, 3.01, 5.01, 5.21 or 11.01, an
amount equal to the sum of (a) 100% of the Principal Balance thereof, (b) unpaid
accrued interest at the Mortgage Rate thereon from the Due Date on which
interest was last paid by the Mortgagor or Advanced by the applicable Servicer
to the Due Date next following the date of repurchase and (c) the aggregate of
any unreimbursed Advances and any unreimbursed Servicing Advances.
33
QUALIFIED INSURER: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by FNMA and
FHLMC and whose claims-paying ability is rated in the two highest rating
categories by S&P and Xxxxx'x with respect to primary mortgage insurance and in
the two highest rating categories for general policyholder rating and financial
performance index rating by A.M. Best Company or its successor in interest with
respect to hazard and flood insurance.
RATE ADJUSTMENT DATE: The LIBOR Business Day prior to the first day of
each Interest Accrual Period after the initial Interest Accrual Period.
RATING AGENCY: Any nationally recognized statistical rating
organization, or its successor, that rated one or more Classes of Certificates
at the request of the Depositor at the time of the initial issuance of the
Certificates. If such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Servicer. References
herein to the two highest long-term debt rating categories of a Rating Agency
shall mean AA or better, in the case of S&P, and Aa or better, in the case of
Xxxxx'x.
REALIZED LOSS: With respect to (i) a Liquidated Mortgage Loan, the
amount, if any, by which the unpaid Principal Balance and accrued interest
thereon at a rate equal to the Net Mortgage Rate exceeds the amount actually
recovered by the applicable Servicer with respect thereto (net of reimbursement
of Advances and Servicing Advances) at the time such Mortgage Loan became a
Liquidated Mortgage Loan or (ii) with respect to a Mortgage Loan which is not a
Liquidated Mortgage Loan, any amount of principal that the Mortgagor is no
longer legally required to pay (except for the extinguishment of debt that
results from the exercise of remedies due to default by the Mortgagor).
REALIZED LOSS INTEREST SHORTFALL: The meaning specified in Section
6.05(c).
RECORD DATE: The close of business of the last Business Day of the
month preceding the month of the related Distribution Date.
REFERENCE BANK RATE: As of 11:00 A.M. London time, on the day that is
two LIBOR Business Days prior to the immediately preceding Distribution Date,
the rate at which deposits are offered in U.S. Dollars by the reference banks
(which shall be three major banks engaged in transactions in the London
interbank market, selected by the Master Servicer) to prime banks in the London
interbank market for a period of one month in amounts approximately equal to the
aggregate Outstanding Certificate Principal Balance of the Class IA-1 and Class
IA-13 Certificates and the Class IA-11 Notional Amount in accordance with the
following procedures. The Master Servicer will request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate will be the arithmetic mean of
the quotations. If on such date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one or
more major banks in New York City, selected by the Master Servicer 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 Outstanding Certificate Principal Balance of the Class IA-1 and Class
IA-13 Certificates and the Class IA-11 Notional Amount. In the event no such
quotations can be obtained, the rate will be LIBOR for the prior Distribution
Date, or in the case of the first Rate Adjustment Date, 3.58%.
RELEVANT MORTGAGE LOAN: The meaning specified in Section 5.01.
REMIC: A "real estate mortgage investment conduit," as such term is
defined in Section 860D of the Code.
REMIC POOL: Either of the Master REMIC or the Subsidiary REMIC.
34
REMIC PROVISIONS: Provisions of the federal income tax law relating to
REMICs which appear at Sections 860A through 860G of Part IV of Subchapter M of
Chapter 1 of Subtitle A of the Code, and related provisions, and U.S. Department
of the Treasury temporary, proposed or final regulations and rulings promulgated
thereunder, as the foregoing are in effect (or with respect to proposed
regulations, are proposed to be in effect) from time to time.
REMITTANCE RATE: The Group One Remittance Rate or the Group Two
Remittance Rate, as applicable.
REPURCHASE PROCEEDS: All proceeds of any Mortgage Loan or property
acquired in respect thereof repurchased pursuant to Section 2.02, 3.01, 5.01,
5.21 or 11.01.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any Senior
Vice President, any Vice President, any Assistant Vice President, any Senior
Trust Officer, any Trust Officer or any other officer of the Trustee in its
Agency & Trust Office 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 in its Agency & Trust Office to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
RETIRED CERTIFICATE GROUP: With respect to any Distribution Date, any
Certificate Group with respect to which the aggregate Outstanding Certificate
Principal Balance is reduced to zero on or before such Distribution Date.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or its successor in interest.
SALE AGREEMENT: The Mortgage Loan Sale Agreement dated as of September
26, 2001 between the Depositor and CMMC.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan as of
any Distribution Date, the unpaid principal balance of such Mortgage Loan as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such schedule by reason of bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) as of the Due Date in the month
preceding the month of such Distribution Date, or as the Cut-off Date, with
respect to the first Distribution Date, after giving effect to any previously
applied prepayments, the payment of principal due on such first (1st) day of the
month and any reduction of the principal balance of such Mortgage Loan by a
bankruptcy court, irrespective of any delinquency in payment by the related
Mortgagor.
SELLER: CMMC.
SERVICER(S): CMMC and WMMSC, or any of their respective successors
under this Agreement as herein provided.
SERVICER REMITTANCE DATE: With respect to any Distribution Date, two
Business Days preceding such Distribution Date with respect to CMMC and one
Business Day preceding such Distribution Date with respect to WMMSC.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by either Servicer of its
servicing obligations and which are "unanticipated expenses" of the REMIC, as
defined in the REMIC Provisions, including, but not limited to, the cost of (i)
the preservation, restoration and protection of the Mortgaged Property (or
Underlying Mortgaged Property, in the case of a Co-op Loan), (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (iv) taxes and assessments on the
Mortgaged Properties subject to the Mortgage Loans and (v) compliance with the
obligations under Section 5.21.
35
SERVICING FEE: The amount of the monthly fee paid to the applicable
Servicer for the servicing of the Mortgage Loans, equal to, as of any
Distribution Date, with respect to each Mortgage Loan, one-twelfth of the
applicable Servicing Fee Rate of the Principal Balance thereof as of the
Determination Date in the preceding month, subject to adjustment as provided in
Section 6.05. The Servicing Fee shall be payable only at the time of and with
respect to those Mortgage Loans for which payment is in fact made of the entire
amount of the Monthly Payments that shall have come due and only at the time
such Monthly Payment shall be made. The right to receive the Servicing Fee is
limited to, and the Servicing Fee is payable solely from, the interest portion
of such Monthly Payments (or the interest portion of any Principal Prepayment in
full) collected by the related Servicer, or as otherwise provided under Section
5.09 or 5.23.
SERVICING FEE RATE: With respect to any CMMC Serviced Mortgage Loan,
0.25% per annum; with respect to any WMMSC Serviced Mortgage Loan; 0.27% per
annum.
SERVICING OFFICER: Any officer of either Servicer or any Sub-servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name appears on a written certificate listing servicing
officers furnished to the Trustee by such Servicer on or prior to the Closing
Date, and signed on behalf of such Servicer or any Sub-servicer by its
President, any Vice President or its Treasurer, as such certificate may from
time to time be amended.
SIMILAR LAW: The meaning specified in Section 4.02(d).
SINGLE CERTIFICATE: A Certificate of any Class that evidences the
smallest permissible original denomination for such Class of Certificates as
specified in Section 4.01(d).
SPECIAL HAZARD AMOUNT: Initially, $4,501,223.42. As of the first
anniversary of the Cut-off Date, the Special Hazard Amount shall be reduced, but
not increased, to the lesser of (i) the initial Special Hazard Amount less the
sum of all amounts allocated to the Subordinated Certificates in respect of
Special Hazard Losses on the Mortgage Loans during such year or (ii) the
Adjustment Amount for such anniversary. As of each subsequent anniversary of the
Cut-off Date, the Special Hazard Amount shall be reduced, but not increased, to
the lesser of (i) the Special Hazard Amount on the immediately preceding
anniversary of the Cut-off Date less the sum of all amounts allocated to the
Subordinated Certificates in respect of Special Hazard Losses on the Mortgage
Loans during such year and (ii) the Adjustment Amount for such anniversary. The
"Adjustment Amount" with respect to each anniversary of the Cut-off Date will be
equal the greatest of (i) 1.00% multiplied by the aggregate outstanding
Principal Balance of the Mortgage Loans, (ii) the aggregate outstanding
Principal Balance of the Mortgage Loans secured by Mortgaged Properties located
in the California postal zip code area in which the highest percentage of
Mortgage Loans by Principal Balance are located and (iii) twice the outstanding
Principal Balance of the Mortgage Loan having the largest outstanding Principal
Balance.
SPECIAL HAZARD LOSS: With respect to any Mortgage Loan, any Realized
Loss or portion thereof resulting from direct physical loss or damage to the
related Mortgaged Property (or Underlying Mortgaged Property, in the case of a
Co-op Loan), which is not insured against under the Standard Hazard Policy
required to be maintained hereunder.
STANDARD HAZARD POLICY: Each standard hazard insurance policy or
replacement therefor referred to in Section 5.16.
36
STARTUP DAY: The meaning specified in Section 2.04(a).
STEP DOWN PERCENTAGE: With respect to any Distribution Date, the
percentage indicated below:
Distribution Date Occurring in Step Down Percentage
------------------------------ --------------------
October 2001 through September 2006 0%
October 2006 through September 2007 30%
October 2007 through September 2008 40%
October 2008 through September 2009 60%
October 2009 through September 2010 80%
October 2010 and thereafter 100%
SUBORDINATED CERTIFICATES: The Class M and Class B Certificates,
referred to collectively.
SUBORDINATED OPTIMAL PRINCIPAL AMOUNT: With respect to any Distribution
Date, the lesser of (a) the aggregate Outstanding Certificate Principal Balance
of the Subordinated Certificates (before giving effect to any distributions of
principal on such Distribution Date) and (b)(1) the sum of: (i) the applicable
Subordinated Percentage of the applicable Non PO Percentage of the principal
portion of all Monthly Payments, whether or not received, which were due during
the related Due Period on Mortgage Loans which were outstanding during such Due
Period; (ii) the applicable Subordinated Prepayment Percentage of the applicable
Non PO Percentage of all Principal Prepayments made on any Mortgage Loan during
the related Principal Prepayment Period; (iii) with respect to each Mortgage
Loan not described in (iv) below, the applicable Subordinated Percentage of the
applicable Non PO Percentage of the principal portion of all Insurance Proceeds,
condemnation awards and any other cash proceeds from a source other than the
applicable Mortgagor, to the extent required to be deposited in the Collection
Account pursuant to Section 5.08(iv) and (v), which were received during the
related Principal Prepayment Period, net of related unreimbursed Servicing
Advances and net of any portion thereof which, as to any such Mortgage Loan,
constitutes Late Collections that have been the subject of an Advance on any
prior Distribution Date; (iv) with respect to each Mortgage Loan which has
become a Liquidated Mortgage Loan during the related Principal Prepayment
Period, an amount equal to the portion (if any) of the Net Liquidation Proceeds
with respect to such liquidated Mortgage Loan (net of any unreimbursed Advances)
that was not included in the Group One Class A-P Amount, the Group Two Class A-P
Amount, the Non-PO Class IA Optimal Principal Amount or Non-PO Class IIA Optimal
Principal Amount with respect to such Distribution Date; and (v) with respect to
each Mortgage Loan repurchased during the related Principal Prepayment Period
pursuant to Section 2.02, 3.01, 5.21 or 11.01, an amount equal to the applicable
Subordinated Prepayment Percentage of the applicable Non PO Percentage of the
principal portion of the Purchase Price (net of amounts with respect to which a
distribution of principal has previously been made to the Subordinated
Certificateholders) minus (2) the Class A-P Shortfall Amount with respect to
such Distribution Date.
SUBORDINATED PERCENTAGE: The Mortgage Group One Subordinated Percentage
or the Mortgage Group Two Subordinated Percentage, as the case may be.
SUBORDINATED PREPAYMENT PERCENTAGE: The Mortgage Group One Subordinated
Prepayment Percentage or the Mortgage Group Two Subordinated Prepayment
Percentage, as the case may be.
SUB-SERVICER: Any Person with whom either Servicer enters into a
Sub-Servicing Agreement.
37
SUB-SERVICING AGREEMENT: Any agreement between either Servicer and any
Sub-Servicer, relating to servicing or administration of certain Mortgage Loans
as provided in Section 5.02, in such form as has been approved by such Servicer.
SUBSIDIARY REGULAR INTERESTS: Each of the Class IA-1 interest, the
Class IA-2 Interest, the Class IA-3 Interest, the Class IA-4 Interest, the Class
IA-5 Interest, the Class IA-6 Interest, the Class IA-7 Interest, the Class IA-8
Interest, the Class IA-9 Interest, the Class IA-10 Interest, the Class IA-11
Interest, the Class IA-12 Interest, the Class IA-13 Interest, the Class A-P
Component One Interest, the Class A-X Component One Interest, the Class IIA-1
Interest, the Class A-P Component Two Interest, the Class A-X Component Two
Interest, the Class EA Interest and the Class SN Interest.
SUBSIDIARY REMIC: The pool of assets consisting of the Trust Fund.
SUBSIDIARY RESIDUAL INTEREST: The interest in the Subsidiary REMIC
represented by any amounts in the Collection Account in respect of the Available
Distribution Amount after payments required to make distributions in respect of
the Subsidiary Regular Interests.
SUBSTITUTE EXCESS INTEREST: As defined in Section 3.04.
TELERATE SCREEN PAGE 3750: The display designated as page 3750 on the
Dow Xxxxx 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.
TRUST: The Trust created pursuant to this Agreement.
TRUST FUND: The corpus of the Trust consisting of (i) the Mortgage
Loans, (ii) such assets as shall from time to time be identified as deposited in
any Collection Account and the Certificate Account, (iii) property which secured
a Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure, (iv) Standard Hazard Policies and any other insurance policies, and
the proceeds thereof and (v) any proceeds of any of the foregoing.
TRUSTEE: Citibank, N.A., a national banking association and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party, and any successor trustee
at the time serving as successor trustee hereunder, appointed as herein
provided.
UNDERLYING MORTGAGED PROPERTY: With respect to each Co-op Loan, the
underlying real property owned by the related residential cooperative housing
corporation.
U.S. PERSON: A "United States Person" as defined in Section 7701(a)(30)
of the Code.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, or its successor in interest.
WMMSC SERVICED MORTGAGE LOANS: The Mortgage Loans serviced by WMMSC and
set forth in the Mortgage Loan Schedule attached hereto as Exhibit A-2.
[END OF ARTICLE I]
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; TRUST FUND
Section 2.01. Conveyance of Mortgage Loans. The Depositor, concurrently
with the execution and delivery hereof, does hereby sell, transfer, assign, set
over and convey to the Trustee without recourse all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all interest
and principal received on or with respect to the Mortgage Loans on or after the
Cut-off Date (other than Monthly Payments due on the Mortgage Loans on or before
the Cut-off Date).
In connection with such assignment, the Depositor does hereby deliver
to, and deposit with, the Trustee the following documents or instruments with
respect to each Mortgage Loan so assigned:
(i) With respect to each Mortgage Loan which is not a Co-op Loan:
(A) (I) Original Mortgage Note (or a lost note affidavit
(including a copy of the original Mortgage Note)) or (II) original
consolidation, extension and modification agreement (or a lost note
affidavit (including a copy of the original consolidation, extension
and modification agreement), in either case endorsed, "Pay to the order
of Citibank, N.A., as trustee, without recourse."
(B) The original Mortgage (including all riders thereto) with
evidence of recording thereon, or a copy thereof certified by the
public recording office in which such Mortgage has been recorded or, if
the original Mortgage has not been returned from the applicable public
recording office, a true certified copy, certified by the Seller, of
the original Mortgage together with a certificate of the Seller
certifying that the original Mortgage has been delivered for recording
in the appropriate public recording office of the jurisdiction in which
the Mortgaged Property is located.
(C) The original Assignment of Mortgage to "Citibank, N.A., as
trustee," which assignment shall be in form and substance acceptable
for recording, or a copy certified by the Seller as a true and correct
copy of the original Assignment of Mortgage which has been sent for
recordation. Subject to the foregoing, such assignments may, if
permitted by law, be by blanket assignments for Mortgage Loans covering
Mortgaged Properties situated within the same county. If the Assignment
of Mortgage is in blanket form, a copy of the Assignment of Mortgage
shall be included in the related individual Mortgage File.
(D) The original policy of title insurance, including riders and
endorsements thereto, or if the policy has not yet been issued, a
written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company.
(E) Originals of all recorded intervening Assignments of Mortgage,
or copies thereof, certified by the public recording office in which
such Assignments or Mortgage have been recorded showing a complete
chain of title from the originator to the Depositor, with evidence of
recording, thereon, or a copy thereof certified by the public recording
office in which such Assignment of Mortgage has been recorded or, if
the original Assignment of Mortgage has not been returned from the
applicable public recording office, a true certified copy, certified by
the Seller of the original Assignment of Mortgage together with a
certificate of the Seller certifying that the original Assignment of
Mortgage has been delivered for recording in the appropriate public
recording office of the jurisdiction in which the Mortgaged Property is
located.
39
(F) Originals, or copies thereof certified by the public recording
office in which such documents have been recorded, of each assumption,
extension, modification, written assurance or substitution agreements,
if applicable, or if the original of such document has not been
returned from the applicable public recording office, a true certified
copy, certified by the Seller, of such original document together with
certificate of Seller certifying the original of such document has been
delivered for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located.
(G) If the Mortgage Note or Mortgage or any other material
document or instrument relating to the Mortgage Loan has been signed by
a Person on behalf of the Mortgagor, the original power of attorney or
other instrument that authorized and empowered such Person to sign
bearing evidence that such instrument has been recorded, if so required
in the appropriate jurisdiction where the Mortgaged Property is located
(or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office,
certifying that such copy represents a true and complete copy of the
original and that such original has been or is currently submitted to
be recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located), or if the
original power of attorney or other such instrument has been delivered
for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located.
(ii) With respect to each Co-op Loan:
(A) (I) The original Mortgage Note (or a lost note affidavit
(including a copy of the original Mortgage Note)) or (II)
original consolidation, extension and modification
agreement (or a lost note affidavit (including a copy of
the original consolidation, extension and modification
agreement)), in either case endorsed "Pay to the order of
Citibank, N.A., as trustee, without recourse."
(B) The original Mortgage entered into by the Mortgagor with
respect to such Co-Op Loan.
(C) The original Assignment of Mortgage to "Citibank, N.A. as
trustee".
(D) Original assignments of Mortgage showing a complete chain
of assignment from the originator of the related Co-Op
Loan to the Seller.
(E) Original Form UCC-1 and any continuation statements with
evidence of filing thereon entered into by the Mortgagor
with respect to such Co-Op Loan.
(F) Form UCC-3 (or copy thereof) by the applicable Mortgage
Loan Seller or its agent assigning the security interest
covered by such Form UCC-1 to "Citibank, N.A. as trustee",
together with all Forms UCC-3 (or copies thereof) showing
a complete chain of assignment from the originator of the
related Co-op Loan to the Seller, with evidence of
recording thereon.
(G) Stock certificate representing the stock allocated to the
related dwelling unit in the related residential
cooperative housing corporation and pledged by the related
Mortgagor to the originator of such Co-op Loan with a
stock power in blank attached.
40
(H) Original proprietary lease.
(I) Original assignment of proprietary lease, to the Trustee,
and all intervening assignments thereof.
(J) Original recognition agreement of the interests of the
mortgagee with respect to the Co-op Loan by the
residential cooperative housing corporation, the stock of
which was pledged by the related Mortgagor to the
originator of such Co-op Loan.
(K) Originals of any assumption, consolidation or modification
agreements relating to any of the items specified in (A)
through (F) above with respect to such Co-op Loan.
If in connection with any Mortgage Loan which is not a Co-op Loan the
Depositor cannot deliver the Mortgage, Assignments of Mortgage, or assumption,
consolidation or modification agreement, as the case may be, with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
solely because of a delay caused by the public recording office where such
Mortgage, Assignments of Mortgage, or assumption, consolidation or modification
agreement, as the case may be, has been delivered for recordation, the Depositor
shall deliver or cause to be delivered to the Trustee written notice stating
that such Mortgage, Assignments of Mortgage, or assumption, consolidation or
modification agreement, as the case may be, has been delivered to the
appropriate public recording office for recordation. Thereafter, the Depositor
shall deliver or cause to be delivered to the Trustee such Mortgage, Assignments
of Mortgage, or assumption, consolidation or modification agreement, as the case
may be, with evidence of recording indicated thereon upon receipt thereof from
the public recording office.
With respect to any Mortgage Loans which are not Co-op Loans, and as to
which the related Mortgaged Property is located in Florida, the related Servicer
shall cause to be recorded in the appropriate public recording office for real
property records each Assignment of Mortgage referred to in this Section 2.01 as
soon as practicable. With respect to any Mortgage Loans which are not Co-op
Loans as to which the related Mortgaged Property is located outside of Florida,
the related Servicer shall not be obligated to cause to be recorded the
Assignment of Mortgage referred to in this Section 2.01. With respect to Co-op
Loans as to which the related dwelling unit is located in Florida, the related
Servicer shall cause to be filed in the appropriate filing office the Form UCC-3
referred to in this Section 2.01 as soon as practicable. With respect to any
Co-op Loans as to which the related dwelling unit is located outside Florida,
the related Servicer shall not be obligated to cause to be filed the Form UCC-3
referred to in this Section 2.01. While each such Assignment of Mortgage or Form
UCC-3 is being recorded or filed, as applicable, the related Servicer shall
deliver to the Trustee a photocopy of such document. If any such Assignment of
Mortgage or Form UCC-3 is returned unrecorded or unfiled to the related Servicer
because of any defect therein, the related Servicer shall cause such defect to
be cured and such document to be recorded or filed in accordance with this
paragraph. The Depositor shall deliver or cause to be delivered each such
original recorded or filed Assignment of Mortgage and intermediate assignment or
Form UCC-3 to the Trustee within 270 days of the Closing Date or shall deliver
to the Trustee on or before such date an Officer's Certificate stating that such
document has been delivered to the appropriate public recording or filing office
for recording or filing, but has not been returned solely because of a delay
caused by such recording or filing office. In any event, the Depositor shall use
all reasonable efforts to cause each such document with evidence of recording or
filing thereon to be delivered to the Trustee within 300 days of the Closing
Date.
41
The ownership of each Mortgage Note, the Mortgage and the contents of
the related Mortgage File is vested in the Trustee. Neither the Depositor nor
either Servicer shall take any action inconsistent with such ownership and shall
not claim any ownership interest therein. The Depositor and each Servicer shall
respond to any third party inquiries with respect to ownership of the Mortgage
Loans by stating that such ownership is held by the Trustee on behalf of the
Certificateholders. Mortgage documents relating to the Mortgage Loans not
delivered to the Trustee are and shall be held in trust by the related Servicers
or any Sub-Servicer, for the benefit of the Trustee as the owner thereof, and
the related Servicer's or such Sub-Servicer's possession of the contents of each
Mortgage File so retained is for the sole purpose of servicing the related
Mortgage Loan, and such retention and possession by the related Servicer or such
Sub-Servicer is in a custodial capacity only. The Depositor agrees to take no
action inconsistent with the Trustee's ownership of the Mortgage Loans, to
promptly indicate to all inquiring parties that the Mortgage Loans have been
sold and to claim no ownership interest in the Mortgage Loans. Each Mortgage
File and the mortgage documents relating to the Mortgage Loans contain
proprietary business information of the related Servicer and its customers. The
Trustee, the Master Servicer and the Depositor agree that they will not use such
information for business purposes without the express written consent of the
related Servicer and that all such information shall be kept strictly
confidential.
It is the intention of this Agreement that the conveyance of the
Depositor's right, title and interest in and to the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan. If a conveyance
of Mortgage Loans from the Seller to the Depositor is characterized as a pledge
and not a sale, then the Depositor shall be deemed to have transferred to the
Trustee all of the Depositor's right, title and interest in, to and under the
obligations of the Seller deemed to be secured by said pledge; and it is the
intention of this Agreement that the Depositor shall also be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title, and interest in, to and under the obligations of the
Seller to the Depositor deemed to be secured by said pledge and that the Trustee
shall be deemed to be an independent custodian for purposes of perfection of the
security interest granted to the Depositor. If the conveyance of the Mortgage
Loans from the Depositor to the Trustee is characterized as a pledge, it is the
intention of this Agreement that this Agreement shall constitute a security
agreement under applicable law, and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans, all
payments of principal of or interest on such Mortgage Loans, all other rights
relating to and payments made in respect of the Trust Fund, and all proceeds of
any thereof. If the trust created by this Agreement terminates prior to the
satisfaction of the claims of any Person in any Certificates, the security
interest created hereby shall continue in full force and effect and the Trustee
shall be deemed to be the collateral agent for the benefit of such Person.
In addition to the conveyance made in the first paragraph of this
Section 2.01, the Depositor does hereby convey, assign and set over to the
Trustee all of its right, title and interest in that portion of the Trust Fund
described in items (ii), (iii), (iv) and (v) of the definition thereof and
further assigns to the Trustee for the benefit of the Certificateholders those
representations and warranties of the Seller contained in the Sale Agreement and
described in Section 3.01 hereof and the benefit of the repurchase obligations
of the Seller described in Sections 2.02 and 3.01 hereof and the obligations of
the Seller contained in the Sale Agreement to take, at the request of the
Depositor or the Trustee, all action on its part which is reasonably necessary
to ensure the enforceability of a Mortgage Loan.
Section 2.02. Acceptance by Trustee. Except as set forth in the
Exception Report delivered contemporaneously herewith (the "Exception Report"),
the Trustee acknowledges receipt of the Mortgage Note for each Mortgage Loan and
delivery of a Mortgage File (but does not acknowledge receipt of all documents
required to be included in such Mortgage File) with respect to each Mortgage
Loan and declares that it holds and will hold such documents and any other
documents constituting a part of the Mortgage Files delivered to it in trust for
the use and benefit of all present and future Certificateholders. The Depositor
will cause the Seller to repurchase any Mortgage Loans to which an exception was
taken in the Exception Report unless such exception is cured to the satisfaction
of the Trustee within 45 Business Days of the Closing Date.
42
The Trustee agrees, for the benefit of Certificateholders, to review
each Mortgage File delivered to it within 270 days after the Closing Date to
ascertain that all documents required by Section 2.01 have been executed and
received, and that such documents relate to the Mortgage Loans identified in
Exhibit A-1 and Exhibit A-2 that have been conveyed to it. If the Trustee finds
any document or documents constituting a part of a Mortgage File to be missing
or defective (that is, mutilated, damaged, defaced or unexecuted) in any
material respect, the Trustee shall promptly (and in any event within no more
than five Business Days) after such finding so notify the related Servicer, the
Seller and the Depositor. In addition, the Trustee shall also notify the related
Servicer, the Seller and the Depositor, if (a) in examining the Mortgage Files,
the documentation shows on its face (i) any adverse claim, lien or encumbrance,
(ii) that any Mortgage Note was overdue or had been dishonored, (iii) any
evidence on the face of any Mortgage Note or Mortgage of any security interest
or other right or interest therein, or (iv) any defense against or claim to the
Mortgage Note by any party or (b) the original Mortgage with evidence of
recording thereon with respect to a Mortgage Loan is not received within 270
days of the Closing Date; provided, however, that if the Depositor cannot
deliver the original Mortgage with evidence of recording thereon because of a
delay caused by the public recording office where such Mortgage has been
delivered for recordation, the Depositor shall deliver or cause to be delivered
to the Trustee written notice stating that such Mortgage has been delivered to
the appropriate public recording officer for recordation and thereafter the
Depositor shall deliver or cause to be delivered such Mortgage with evidence of
recording thereon upon receipt thereof from the public recording office. The
Trustee shall request that the Seller correct or cure such omission, defect or
other irregularity, or substitute a Mortgage Loan pursuant to the provisions of
Section 3.03, within 60 days from the date the Seller was notified of such
omission or defect and, if the Seller does not correct or cure such omission or
defect within such period, that the Seller purchase such Mortgage Loan from the
Trustee within 90 days from the date the Trustee notified the Seller of such
omission, defect or other irregularity at the Purchase Price of such Mortgage
Loan. The Purchase Price for any Mortgage Loan purchased pursuant to this
Section 2.02 shall be paid to the related Servicer and deposited by the related
Servicer in the related Collection Account promptly upon receipt, and, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee shall promptly release to the Seller the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment, without recourse, as shall be necessary to vest in the
Seller or its designee, as the case may be, any Mortgage Loan released pursuant
hereto, and the Trustee shall have no further responsibility with regard to such
Mortgage Loan. It is understood and agreed that the obligation of the Seller to
purchase, cure or substitute any Mortgage Loan as to which a material defect in
or omission of a constituent document exists shall constitute the sole remedy
respecting such defect or omission available to the Trustee on behalf of
Certificateholders. The Trustee shall be under no duty or obligation to inspect,
review and examine such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable or appropriate to the represented
purpose, or that they have actually been recorded, or that they are other than
what they purport to be on their face. The Trustee shall keep confidential the
name of each Mortgagor and shall not solicit any such Mortgagor for the purpose
of refinancing the related Mortgage Loan.
Within 280 days of the Closing Date, the Trustee shall deliver to the
Depositor and each Servicer the Trustee's Certification, substantially in the
form of Exhibit G attached hereto, setting forth the status of the Mortgage
Files as of such date.
Section 2.03. Trust Fund; Authentication of Certificates. The Trustee
acknowledges and accepts the assignment to it of the Trust Fund created pursuant
to this Agreement in trust for the use and benefit of all present and future
Certificateholders. The Trustee acknowledges the assignment to it for the
benefit of the Trust Fund of the Mortgage Loans and has caused to be
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Mortgage Loans, Certificates duly authenticated by the Trustee or, if an
Authenticating Agent has been appointed pursuant to Section 4.06, the
Authenticating Agent in authorized denominations evidencing ownership of the
entire Trust Fund.
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Section 2.04. REMIC Elections.
(a) The Depositor hereby instructs and authorizes the Trustee to make
appropriate elections to treat each of the Subsidiary REMIC and the Master REMIC
as a REMIC. This Agreement shall be construed so as to carry out the intention
of the parties that each REMIC Pool be treated as a REMIC at all times prior to
the date on which the Trust Fund is terminated. The Closing Date is hereby
designated as the "startup day" of each REMIC Pool within the meaning of Section
860G(a)(9) of the Code. The "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in the Master REMIC shall consist of the Class A
Certificates (other than the Class A-R Certificate), the Class M Certificates,
the Excess Amount Interest and the Class B Certificates, and the "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in the Master
REMIC shall consist of the Master Residual Interest, and all such interests
shall be designated as such on the Startup Day. The "regular interests" (within
the meaning of Section 860G(a)(1) of the Code) in the Subsidiary REMIC shall
consist of the Subsidiary Regular Interests and the "residual interest" (within
the meaning of Section 860G(a)(2) of the Code) in the Subsidiary REMIC shall
consist of the Subsidiary Residual Interest and all such interests shall be
designated as such on the Startup Date. The regular interests in the Subsidiary
REMIC shall be held by the Master REMIC at all times and shall not be
transferable under any circumstances. The Class A-R Certificate shall represent
both the Subsidiary Residual Interest and the Master Residual Interest.
(b) The assets of the Subsidiary REMIC shall consist of the pool of
assets consisting of the Trust Fund. The assets of the Master REMIC shall
consist of the pool of assets consisting of the Subsidiary Regular Interests and
all payments or principal or interest on or with respect to the Subsidiary
Regular Interests after the Cut-off Date.
(c) The Class IA-1 Interest will have an initial principal balance
equal to the initial aggregate Outstanding Certificate Principal Balance of the
Class IA-1 Certificates and the Class IA-13 Certificates and will bear interest
at a rate equal to 8.5%. The Class IA-2 Interest will have an initial principal
balance equal to the initial Outstanding Certificate Principal Balance of the
Class IA-2 Certificates and will bear interest at a 6.75% rate. The Class IA-3
Interest will have an initial principal balance equal to the initial Outstanding
Certificate Principal Balance of the Class IA-3 Certificates and will bear
interest at a 7.00% rate. The Class IA-4 Interest will have an initial principal
balance equal to the initial Outstanding Certificate Principal Balance of the
Class IA-4 Certificates and will bear interest at a 6.75% rate. The Class IA-5
Interest will have an initial principal balance equal to the initial Outstanding
Certificate Principal Balance of the Class IA-5 Certificates and will bear
interest at a 6.75% rate. The Class IA-6 Interest will have an initial principal
balance equal to the initial Outstanding Certificate Principal Balance of the
Class IA-6 Certificates and will bear interest at a 6.75% rate. The Class IA-7
Interest will have an initial principal balance equal to the initial Outstanding
Certificate Principal Balance of the Class IA-7 Certificates and will bear
interest at a 6.75% rate. The Class IA-8 Interest will have an initial principal
balance equal to the initial aggregate Outstanding Certificate Principal Balance
of the Class IA-8 Certificates and the Class A-R Certificates and will bear
interest at a 6.75% rate. The Class IA-9 Interest will have an initial principal
balance equal to the initial Outstanding Certificate Principal Balance of the
Class IA-9 Certificates and will bear interest at a 6.50% rate. The Class IA-10
Interest will have an initial principal balance equal to the initial Outstanding
Certificate Principal Balance of the Class IA-10 Certificates and will bear
interest at a 6.25% rate. The Class IA-11 Interest will have an initial
principal balance equal to the initial aggregate Outstanding Certificate
Principal Balance of the Class IA-12 Certificates, Class IA-16 Certificates,
Class IA-17 Certificates, Class IA-18 Certificates and Class IA-19 Certificates
and will bear interest at a 6.75% rate. The Class IA-12 Interest will have an
initial principal balance equal to the initial Outstanding Certificate Principal
Balance of the Class IA-14 Certificates and will bear interest at a 6.00% rate.
The Class IA-13 Interest will have an initial principal balance equal to the
initial Outstanding Certificate Principal Balance of the Class IA-15
Certificates and will bear interest at an 8.50% rate. The Class A-X Component
One Interest will be an interest only regular interest bearing interest at 6.75%
44
on the Class A-X Component One Notional Amount. The Class A-X Component Two
Interest will be an interest only regular interest bearing interest at 6.50% on
the Class A-X Component Two Notional Amount. The Class A-P Component One
Interest will be a principal only regular interest entitled to receive payments
of the Group One Class A-P Amounts. The Class A-P Component Two Interest will be
a principal only regular interest entitled to receive payments of the Group Two
Class A-P Amounts. The Class IIA-1 Interest will have an initial principal
balance equal to the initial Outstanding Certificate Principal Balance of the
Class IIA-1 Certificates and will bear interest at an 6.50% rate. The Class SN
Interest will have an initial principal balance equal to the initial Outstanding
Certificate Principal Balance of the Class M Certificates, Class B-1
Certificates, Class B-2 Certificates, Class B-3 Certificates, Class B-4
Certificates and Class B-5 Certificates and will bear interest at a rate equal
to the Certificate Rate on the Subordinated Certificates. The EA Interest shall
have a principal amount of $0 and shall be entitled to distributions in respect
of the Excess Amount Distribution.
On each Distribution Date, there shall be treated as having
been a distribution in reduction of the principal balance of a Subsidiary
Regular Interest to the extent that there is a distribution of principal in
respect of any of the Corresponding Certificates with respect to such Subsidiary
Regular Interest. There shall be a reduction in the principal balance of a
Subsidiary Regular Interest to the extent that Realized Losses are allocated to
any of the Corresponding Certificates with respect to such Subsidiary Regular
Interest. There shall be treated as having been a distribution in reduction of
the principal amount of the Class A-P Component One Interest to the extent that
there are distributions in respect of Class A-P Component One pursuant to
Section 6.01(b)(ii)(A) hereof. There shall be treated as having been a
distribution in reduction of the principal amount of the Class A-P Component Two
Interest to the extent that there are distributions in respect of Class A-P
Component Two pursuant to Section 6.01(b)(ii)(B) hereof. There shall be a
reduction in the principal balance of the Class A-P Component One Interest to
reflect the amount of any Realized Loss allocated to Class A-P Component One.
There shall be a reduction in the principal balance of the Class A-P Component
Two Interest to reflect the amount of any Realized Loss allocated to Class A-P
Component Two. There shall be treated as having been distributed on the Class
A-P Component One Interest, without further reduction in the principal balance
thereof, an amount equal to the amount of any distribution to Class A-P
Component One under Section 6.01(b)(v) hereof. There shall be treated as having
been distributed on the Class A-P Component Two Interest, without further
reduction in the principal balance thereof, an amount equal to the amount of any
distribution to Class A-P Component Two under Section 6.01(b)(v) hereof.
(d) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Outstanding Certificate Principal Balance of each Class of Certificates
representing a regular interest in the Master REMIC would be reduced to zero is
the Distribution Date immediately following the latest scheduled maturity of any
Mortgage Loan. The "latest possible maturity date" of the Subsidiary Regular
Interests and the Excess Amount Interest will be the Distribution Date
immediately following the latest scheduled maturity of any Mortgage Loan.
(e) The "tax matters person" with respect to each REMIC Pool for
purposes of the REMIC Provisions shall be the beneficial owner of the Class A-R
Certificate having the largest Percentage Interest of such Class; provided,
however, that such largest beneficial owner and, to the extent relevant, each
other Holder of a Class A-R Certificate, by its acceptance thereof, irrevocably
appoints Master Servicer as its agent and attorney-in-fact to act as "tax
matters person" with respect to each REMIC Pool for purposes of the REMIC
provisions.
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(f) It is intended that each REMIC Pool shall constitute, and that the
affairs of the Trust Fund shall be conducted so as to qualify each REMIC Pool
as, a "real estate mortgage investment conduit" as defined in and in accordance
with the REMIC Provisions. In furtherance of such intention, the Master Servicer
covenants and agrees that it shall act as agent (and the Master Servicer is
hereby appointed to act as agent) on behalf of the Trust Fund and the Holder of
the Class A-R Certificate and that in such capacity it shall:
(i) prepare and file, or cause to be prepared and filed, in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income
Tax Return (Form 1066) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local
tax authorities income tax or information returns for each taxable year
with respect to each REMIC Pool, using the calendar year as the taxable
year and the accrual method of accounting, containing such information
and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and shall furnish or
cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required
thereby;
(ii) within thirty days of the Closing Date, shall furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or
as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may
contact for tax information relating thereto (and the Master Servicer
shall act as the representative of each REMIC Pool for this purpose),
together with such additional information as may be required by such
Form, and shall update such information at the time or times in the
manner required by the Code;
(iii) make or cause to be made elections, on behalf of each REMIC
Pool, to be treated as a REMIC, and make the appropriate designations,
if applicable, in accordance with this Section 2.04 on the federal tax
return of each REMIC Pool for its first taxable year (and, if
necessary, under applicable state law);
(iv) prepare and forward, or cause to be prepared and forwarded,
to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns or reports,
or furnish or cause to be furnished by telephone, mail, publication or
other appropriate method such information, as and when required to be
provided to them in accordance with the REMIC Provisions, including
without limitation, the calculation of any original issue discount;
(v) provide information necessary for the computation of tax
imposed on the transfer of the Class A-R Certificate to a Disqualified
Organization, or an agent (including a broker, nominee or other
middleman) of a Disqualified Organization, or a pass-through entity in
which a Disqualified Organization is the record holder of an interest
(the reasonable cost of computing and furnishing such information may
be charged to the Person liable for such tax);
(vi) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other Person as may be
required to sign such returns by the Code or state or local laws,
regulations or rules; and
(vii) maintain such records relating to each REMIC Pool as may be
required by the Code and as may be necessary to prepare the foregoing
returns, schedules, statements or information.
46
Section 2.05. Permitted Activities of Trust. The Trust is created for
the object and purpose of engaging in the Permitted Activities.
Section 2.06. Qualifying Special Purpose Entity. For purposes of SFAS
140, the parties hereto intend that the Trust shall be treated as a "qualifying
special purpose entity" as such term is used in SFAS 140 and any successor rule
thereto and its power and authority as stated in Section 2.05 of this Agreement
shall be limited in accordance with paragraph 35 thereof.
[END OF ARTICLE II]
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND
THE SERVICERS; REPURCHASE OF MORTGAGE LOANS
Section 3.01. Representations and Warranties of the Depositor with
respect to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that on the Closing Date it has entered into
the Sale Agreement with CMMC as Seller, that the Seller has made the following
representations and warranties with respect to each Mortgage Loan in such Sale
Agreement as of the Closing Date, which representations and warranties run to
and are for the benefit of the Depositor and the Trustee for the benefit of the
Certificateholders, and as to which the Depositor has assigned to the Trustee
for the benefit of the Certificateholders, pursuant to Section 2.01 hereof, the
right to cause the Seller to repurchase a Mortgage Loan as to which there has
occurred an uncured breach of representations and warranties in accordance with
the provisions of the Sale Agreement.
(a) The information set forth in the Mortgage Loan Schedule is
complete, true and correct in all material respects;
(b) With respect to a Mortgage Loan which 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 Co-op Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative shares securing
the related Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor's pro rata share of the related residential cooperative housing
corporation'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 Trustee's security interest in such cooperative shares;
(c) 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 and has not been dishonored; to the best of the
Seller's knowledge, 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 (or, with respect to a Co-op Loan,
the related Mortgagor), directly or indirectly, for the payment of any amount
required by the Mortgage Loan; there has been no more than one delinquency in
excess of 30 days during the preceding twelve-month period;
47
(d) To the best of the Seller's knowledge, 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;
(e) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments. 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
the Mortgage Loan Schedule;
(f) 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 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;
(g) With respect to a Mortgage Loan which is not a Co-op Loan, 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. 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 Mortgaged
Property 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. 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;
(h) 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;
(i) 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;
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(j) With respect to a Mortgage Loan which is not a Co-op Loan, the
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property, including, 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 Depositor has the full right to sell and assign the same to the Trustee for
the benefit of the Certificateholders;
(k) 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 Depositor has taken all action necessary to transfer such
rights of enforceability to the Trustee for the benefit of the
Certificateholders. 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 property executed by such parties. 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;
(l) The Depositor 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 Depositor 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 Trust for the benefit of the Certificateholders, the Depositor will
retain the Mortgage File or any part thereof with respect thereto not delivered
to the Trust for the benefit of the Certificateholders or its 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 Trust for the
benefit of the Certificateholders, the Mortgage Loan, including the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and the
Depositor 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 Trustee for the
benefit of the Certificateholders 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 Agreement and
following the sale of the Mortgage Loan, the Trustee for the benefit of the
Certificateholders will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest;
49
(m) With respect to a Mortgage Loan which is not a Co-op Loan, the
Mortgage 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. Such lender's title insurance
policy insures ingress and egress by or upon the Mortgaged Property or any
interest therein. 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 Trustee for the benefit of the Certificateholders or the
assignment to the Trustee for the benefit of the Certificateholders 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;
(n) There is no default, breach, violation or event of acceleration
existent, 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;
(o) 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;
(p) With respect to a Mortgage Loan which is not a Co-op Loan, 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) 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; the Mortgaged Property is lawfully occupied under
applicable law;
(q) The Mortgage Loan complies in all material respects 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. 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;
(r) To the best of the Seller's knowledge, the Mortgaged Property (or
Underlying Mortgaged Property, in the case of a Co-op Loan), is not subject to
any material damage by waste, fire, earthquake, windstorm, flood or other
casualty. To the best of the Seller's knowledge, 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 (or Underlying Mortgaged
Property, in the case of a Co-op Loan);
(s) 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, (l) 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;
50
(t) 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;
(u) The Mortgage File contains an appraisal of the related Mortgaged
Property (or the related residential dwelling unit in the Underlying Mortgaged
Property, in the case of a Co-op Loan), signed prior to the final approval of
the mortgage loan application by an appraiser approved by the Seller who had no
interest, direct or indirect, in the Mortgaged Property (or Underlying Mortgaged
Property, in the case of a Co-op Loan), or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan. The appraisal is in a form acceptable to FNMA or FHLMC;
(v) 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 substantial compliance
with any and all applicable licensing requirements of the laws of the state
wherein the Mortgaged Property (or Underlying Mortgaged Property, in the case of
a Co-op Loan), 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;
(w) 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 interest of any applicable agreement or
chattel mortgage referred to above and such collateral does not serve as
security for any other obligation;
(x) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of such mortgage loans; (y) The
Mortgage Loan does not contain "graduated payment" features;
(z) The Mortgagor is not in bankruptcy and, to the best of the Seller's
knowledge, the Mortgagor is not insolvent;
(aa) The Mortgage Loans are fixed rate mortgage loans. Each Mortgage
Loan has an original term to maturity of not more than thirty (30) years, with
interest payable in arrears on the first day of each month. Each Mortgage Note
is payable in equal monthly installments of principal and interest which are
sufficient to amortize the Mortgage Loan fully by the stated maturity date. No
Mortgage Loan contains terms or provisions which would result in negative
amortization;
(bb) Each Mortgage Note, each Mortgage, each Assignment of Mortgage and
any other documents required pursuant to this Agreement to be delivered to the
Trustee on behalf of the Certificateholders or its designee, or its assignee for
each Mortgage Loan, have been, on or before the Closing Date, delivered to the
Trustee on behalf of the Certificateholders or its designee, or its assignee;
(cc) All escrow payments have been collected in full compliance with
state and federal law and the provisions of the related Mortgage Note and
Mortgage. As to any Mortgage Loan that is the subject of an escrow, escrow of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every escrowed item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or other charges or
payments due under the Mortgage Note have been capitalized under any Mortgage or
the related Mortgage Note. Any interest required to be paid pursuant to state,
federal and local law has been properly paid and credited;
51
(dd) [Reserved];
(ee) In the event the Mortgage Loan has a Loan-to-Value Ratio greater
than 80%, 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 (or
Underlying Mortgaged Property, in the case of a Co-op Loan), with respect to a
purchase money Mortgage Loan, is and will be insured as to payment defaults by a
Primary Insurance Policy issued by a Qualified Insurer. All provisions of such
Primary 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 Primary Insurance Policy obligates the Mortgagor
thereunder to maintain the Primary Insurance Policy and to pay all premiums and
charges in connection therewith. The Mortgage Rate for the Mortgage Loan as set
forth on the Mortgage Loan Schedule is net of any such insurance premium;
(ff) The Assignment of Mortgage is in recordable form and is acceptable
for recording (or, in the case of a Co-op Loan, is in a form acceptable for
filing) under the laws of the jurisdiction in which the Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) is located;
(gg) As to Mortgage Loans that are not secured by an interest in a
leasehold estate, the Mortgaged Property (or Underlying Mortgaged Property, in
the case of a Co-op Loan), is located in the state identified in the Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a two-to four-family dwelling, or an
individual condominium unit in a condominium project, or a dwelling unit in a
residential cooperative housing corporation or an individual unit in an attached
planned unit development or a detached planned unit development, provided,
however, that no residence or dwelling is a single parcel of real property with
a mobile home thereon. As of the date of origination, no portion of the
Mortgaged Property (or Underlying Mortgaged Property, in the case of a Co-op
Loan), was used for commercial purposes, and since the date of origination, to
the best of the Seller's knowledge, no portion of the Mortgaged Property (or
Underlying Mortgaged Property, in the case of a Co-op Loan), is used for
commercial purposes;
(hh) If the Mortgaged Property is a condominium unit or a planned unit
development (other than a de minimis planned unit development), as of the date
of origination of the related Mortgage Loan, such condominium or planned unit
development project met the Seller's eligibility requirements, as set forth in
the Seller's underwriting guidelines as of such date; in the case of each Co-op
Loan, the related residential cooperative housing corporation complied in all
material respects with the Seller's requirements as set forth in the Seller's
underwriting guidelines as of such date;
(ii) To the best of the Seller's knowledge, there is no pending action
or proceeding directly involving the Mortgaged Property (or Underlying Mortgaged
Property, in the case of a Co-op Loan), in which compliance with any
environmental law, rule or regulation is an issue;
(jj) The Mortgagor has not notified the Seller, and the Depositor has
no knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended;
(kk) No Mortgage Loan was made in connection with the construction or
rehabilitation of a Mortgaged Property (or Underlying Mortgaged Property, in the
case of a Co-op Loan), or facilitating the trade-in or exchange of a Mortgaged
Property (or Underlying Mortgaged Property, in the case of a Co-op Loan);
52
(ll) No action has been taken or failed to be taken by Depositor, 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 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 Depositor, or
for any other reason under such coverage;
(mm) 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, as amended, 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;
(nn) Principal payments on the Mortgage Loan commenced no more than
sixty (60) days after 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;
(oo) The Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to Treas. Reg. "1.860G-2(f) or
any similar rule that provides that a defective obligation is a qualified
mortgage for a temporary period); and
(pp) With respect to a Mortgage Loan that is a Co-op Loan, the stock
that is pledged as security for the Mortgage Loan is held by a Person as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code).
Upon discovery by any of the Depositor, either Servicer or the Trustee
of a breach of any of the foregoing representations and warranties which
materially and adversely affects the value of a Mortgage Loan or the interest of
the Certificateholders (or which materially and adversely affects the interests
of the Certificateholders in the related Mortgage Loan in the case of a
representation and warranty relating to a particular Mortgage Loan), the party
discovering such breach shall give prompt written notice to the other parties
and to the Seller, which notice shall specify the date of discovery. Pursuant to
the Sale Agreement, the Seller shall within 90 days from the earlier of (i) the
date specified in the notice as the date of discovery of such breach or (ii) the
date the Seller otherwise discovers such breach, cure such breach, substitute a
Mortgage Loan pursuant to the provisions of Section 3.03 or, if the breach
relates to a particular Mortgage Loan, purchase such Mortgage Loan from the
Trustee at the Purchase Price. The Purchase Price for the purchased Mortgage
Loan shall be paid to the related Servicer and shall be deposited by such
Servicer in the related Collection Account promptly upon receipt, and, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee shall promptly release to the Seller the related
Mortgage File, and the Trustee shall execute and deliver such instruments of
transfer or assignment as may be provided to it by the related Servicer, without
recourse, as shall be necessary to vest in the Seller or its designee, as the
case may be, any Mortgage Loan released pursuant hereto, and the Trustee shall
have no further responsibility with regard to such Mortgage Loan. It is
understood and agreed that the obligation of the Seller to cure, substitute or
purchase any Mortgage Loan as to which such a breach has occurred shall
constitute the sole remedy respecting such breach available to
Certificateholders or the Trustee on behalf of Certificateholder
53
Section 3.02. Representations and Warranties of each Servicer. Each
Servicer represents and warrants to, and covenants with, the Trustee for the
benefit of the Certificateholders that as of the Closing Date:
(a) Such Servicer is a corporation duly chartered and validly existing
in good standing under the laws of the state of its incorporation, and such
Servicer is duly qualified or registered as a foreign corporation in good
standing in such jurisdiction in which the ownership or lease or its properties
or the conduct of its business requires such qualification;
(b) The execution and delivery of this Agreement by such Servicer and
its performance and compliance with the terms of this Agreement will not violate
such Servicer's corporate charter or by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or other
instrument to which such Servicer is a party or which may be applicable to such
Servicer or any of its assets;
(c) This Agreement, assuming due authorization, execution and delivery
by the Trustee, the other Servicer and the Depositor, constitutes a valid, legal
and binding obligation of such Servicer, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
(d) Such Servicer is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of such Servicer or its properties or might have consequences that would affect
its performance hereunder; and
(e) No litigation is pending or, to the best of such Servicer's
knowledge, threatened against such Servicer which would prohibit its entering
into this Agreement or performing its obligations under this Agreement. It is
understood and agreed that the representations and warranties set forth in this
Section 3.02 shall survive the issuance and delivery of the Certificates and
shall be continuing as long as any Certificate shall be outstanding or this
Agreement has been terminated.
Section 3.03. Option to Substitute. If the Seller is required to
repurchase any Mortgage Loan pursuant to Section 2.02 or 3.01, the Seller may,
at its option, within two years from the Closing Date, remove such defective
Mortgage Loan from the terms of this Agreement and substitute another mortgage
loan for such defective Mortgage Loan, in lieu of repurchasing such defective
Mortgage Loan. Any substitute Mortgage Loan shall (a) have a Principal Balance
at the time of substitution not in excess of the Principal Balance of the
removed Mortgage Loan (the amount of any difference, plus one month's interest
thereon at the Mortgage Rate borne by the removed Mortgage Loan, being paid by
the Seller and deemed to be a Principal Prepayment to be deposited by the
related Servicer in the related Collection Account), (b) have a Mortgage Rate
not less than, and not more than one percentage point greater than, the Mortgage
Rate of the removed Mortgage Loan (provided, however, that if the Mortgage Rate
on the substitute Mortgage Loan exceeds the Mortgage Rate on the removed
Mortgage Loan, the amount of that excess interest (the "Substitute Excess
Interest") shall be payable to the Residual Interest), (c) have a remaining term
to stated maturity not later than, and not more than one year less than, the
remaining term to stated maturity of the removed Mortgage Loan, (d) be, in the
reasonable determination of the related Servicer, of the same type, quality and
character (including location of the Mortgaged Property) as the removed Mortgage
Loan as if the breach had not occurred, (e) have a Loan-to-Value Ratio at
origination no greater than that of the removed Mortgage Loan and (f) be, in the
reasonable determination of the Seller, in material compliance with the
representations and warranties contained in the Sale Agreement and described in
Section 3.01, as of the date of substitution.
54
The Seller shall amend the Mortgage Loan Schedule to reflect the
withdrawal of the removed Mortgage Loan from this Agreement and the substitution
of such substitute Mortgage Loan therefor and shall send a copy of such amended
Mortgage Loan Schedule to the Trustee. The Sale Agreement provides that upon
such amendment the Seller shall be deemed to have made as to such substitute
Mortgage Loan the representations and warranties set forth in Section 3.01 as of
the date of such substitution, which shall be continuing as long as any
Certificate shall be outstanding or this Agreement has not been terminated, and
the remedies for breach of any such representation or warranty shall be as set
forth in Section 3.01. Upon such amendment, the Trustee shall review the
Mortgage File delivered to it relating to the substitute Mortgage Loan, within
the time and in the manner and with the remedies specified in Section 2.02,
except that for purposes of this Section 3.03 (other than the two-year period
specified in the first sentence of this Section), such time shall be measured
from the date of the applicable substitution. In the event of such a
substitution, accrued interest on the substitute Mortgage Loan for the month in
which the substitution occurs and any Principal Prepayments made thereon during
such month shall be the property of the Trust Fund, and accrued interest for
such month on the Mortgage Loan for which the substitution is made and any
Principal Prepayments made thereon during such month shall be the property of
the Seller. The principal payment on a substitute Mortgage Loan due on the Due
Date in the month of substitution shall be the property of the Seller, and the
principal payment on the Mortgage Loan for which the substitution is made due on
such date shall be the property of the Trust Fund.
[END OF ARTICLE III]
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
(a) The Class A, Class M and Class B Certificates shall be
substantially in the forms thereof included within Exhibits C, D, E and F and
shall, on original issue, be executed by the Depositor and authenticated by the
Trustee (or, if an Authenticating Agent has been appointed pursuant to Section
4.06, the Authenticating Agent) upon receipt by the Trustee of the documents
specified in Section 2.01, delivered to or upon the order of the Depositor.
(b) The Depository, the Depositor, the Paying Agent and the Trustee
have entered into a Depository Agreement dated as of September 26, 2001 (the
"Depository Agreement"). Except as provided in paragraph (c) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of the Book-Entry
Certificates may not be transferred as provided in Section 4.02 except to a
successor to the Depository; (ii) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (iii) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (iv) the Trustee shall deal with the Depository, Depository
Participants and Indirect Participants as representatives of the Certificate
Owners of the Book-Entry Certificates for purposes of exercising the rights of
such Holders under this Agreement, and requests and directions for and votes of
such representatives shall not be deemed to be inconsistent if they are made
with respect to different Certificate Owners; and (v) the Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its Depository Participants and furnished by the Depository
Participants with respect to Indirect Participants and persons shown on the
books of such Indirect Participants as direct or indirect Certificate Owners.
The Depository Agreement provides that the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership and
transfers of such Certificates.
55
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(c) If (i)(A) the Depository advises the Depositor, the Paying Agent or
the Trustee in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository and (B) the Trustee, the
Paying Agent or the Depositor are unable after exercise of their reasonable best
efforts to locate a qualified successor or (ii) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee or, if a Paying Agent has been appointed
under Section 4.05, the Paying Agent, shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Trustee or, if a Paying Agent has been appointed under Section 4.05, the Paying
Agent, of the Book-Entry Certificates by the Depository for registration and
receipt by the Trustee or, if a Paying Agent has been appointed under Section
4.05, the Paying Agent, of an adequate supply of certificates from the
Depositor, the Trustee or if the Paying Agent is appointed under Section 4.05,
the Paying Agent shall issue the Definitive Certificates based on information
received from the Depository. Neither the Depositor, the Master Servicer, the
Servicers, the Paying Agent nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(d) The Certificates shall be issuable in the minimum original dollar
denominations (and integral multiples of $1,000.00 in excess of such amount) and
aggregate original dollar denominations per Class (or, in the case of the Class
IA-11, Class IA-20, Class A-X Certificates, in the minimum denominations based
on the Class IA-11 Notional Amount, Class IA-20 Notional Amount or Class A-X
Notional Amount, respectively) as set forth in the following table (except that
one Certificate of each Class may be issued in a different denomination).
56
Aggregate Original Certificate
Minimum Principal Balance of all
Original Certificates of the CUSIP
Class Denomination Indicated Class Number
---------------------- -------------- ------------------------------ -----------
Class IA-1............ $ 25,000.00 $6,821,000.00 16162T ZG 4
Class IA-2............ $ 25,000.00 $26,925,000.00 16162T ZH 2
Class IA-3............ $ 1,000.00 $2,651,000.00 16162T ZJ 8
Class IA-4............ $ 25,000.00 $29,092,355.00 16162T ZK 5
Class IA-5............ $ 25,000.00 $45,368,000.00 16162T ZL 3
Class IA-6............ $ 1,000.00 $2,789,000.00 16162T ZM 1
Class IA-7............ $ 1,000.00 $1,693,000.00 00000X XX 9
Class IA-8............ $ 1,000.00 $1,495,000.00 16162T ZP 4
Class IA-9............ $ 1,000.00 $2,651,000.00 16162T ZQ 2
Class IA-10........... $ 25,000.00 $87,734,112.00 16162T ZR 0
Class IA-11........... $ 25,000.00 (1) 16162T ZS 8
Class IA-12........... $ 1,000.00 $1,894,000.00 16162T ZT 6
Class IA-13........... $ 25,000.00 $33,828,888.00 16162T ZU 3
Class IA-14........... $ 25,000.00 $38,540,000.00 16162T ZV 1
Class IA-15........... $ 1,000.00 $933,000.00 16162T ZW 9
Class IA-16........... $ 1,000.00 $1,716,000.00 16162T ZX 7
Class IA-17........... $ 1,000.00 $1,168,000.00 16162T ZY 5
Class IA-18........... $ 1,000.00 $1,832,000.00 16162T ZZ 2
Class IA-19........... $ 1,000.00 $3,791,000.00 16162T A2 2
Class IA-20........... $ 25,000.00 (1) 16162T A3 0
Class IIA-1........... $ 25,000.00 $145,092,132.00 16162T A4 8
Class A-X............. $ 25,000.00 (1)(4) 16162T A5 5
Class A-P(2) $ 25,000.00 (5) 16162T A6 3
Class A-R(3).......... $ 100.00 100.00 16162T A7 1
Class M............... $ 25,000.00 $5,176,407.00 16162T A8 9
Class B-1............. $ 25,000.00 $2,925,795.00 16162T A9 7
Class B-2............. $ 25,000.00 $2,250,612.00 16162T B2 1
Class B-3............. $ 25,000.00 $900,245.00 16162T B3 9
Class B-4............. $ 25,000.00 $900,244.00 16162T B4 7
Class B-5............. $ 25,000.00 $900,246.68 16162T B5 4
---------------
(1) The Class IA-11, Class IA-20 and Class A-X Certificates are interest-only
certificates, have no principal balance and will bear interest on their
respective notional amounts (initially approximately $40,649,888.00,
$385,222.22 and $1,792,186.62, respectively).
(2) The Class A-P Certificates are entitled to payments of principal only.
(3) The Class A-R Certificate represents the Master Residual Interest and the
Subsidiary Residual Interest.
(4) The Class A-X Certificates consist of two components. The original notional
amount of Class A-X Component One is $338,172.92 and the original notional
amount of Class A-X Component Two is $1,454,013.69.
(5) The Class A-P Certificates consist of two components. The original notional
amount of Class A-P Component One is $390,207.35 and the original notional
amount of Class A-P Component Two is $663,999.25.
57
The Certificates shall be signed by manual or facsimile signature on
behalf of the Depositor by an officer of the Depositor. Certificates bearing the
manual or facsimile signatures of individuals who were at the time of signature
officers of the Depositor shall bind the Depositor, notwithstanding that such
individuals or any of them have ceased to be an officer prior to the
authentication and delivery of such Certificate or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a manual authentication by an officer of the Trustee (or if an
Authenticating Agent has been appointed pursuant to Section 4.06, the
Authenticating Agent and such 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 4.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee or, if a Paying Agent has been appointed hereunder
pursuant to Section 4.05, the Paying Agent, shall cause to be kept a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates and the Excess Amount Interest as herein provided.
(b) Upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee, or if a Paying Agent has been appointed
hereunder pursuant to Section 4.05, the Paying Agent maintained for such
purpose, the Depositor shall execute and the Trustee or if an Authenticating
Agent is appointed under Section 4.06, the Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, a Certificate of a like Class and aggregate Percentage Interest and
dated the date of authentication by the Authenticating Agent.
(c) No transfer of a Class B-3, Class B-4 or Class B-5 Certificate or
the Excess Amount Interest shall be made unless such transfer is made pursuant
to an effective registration statement or otherwise in accordance with the
requirements under the Securities Act of 1933, as amended. If such a transfer is
to be made in reliance upon an exemption from said Act, (i) the Depositor may
require (except with respect to the initial transfer of a Class B-3, Class B-4
or Class B-5 Certificate from Credit Suisse First Boston Corporation and except
if the transferee executes a certificate substantially in the form of Exhibit H
hereto) a written opinion of independent counsel acceptable to and in form and
substance satisfactory to the Depositor that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from said Act and laws or is being made pursuant to said Act and laws, which
opinion of counsel shall not be an expense of the Trust Fund, the Trustee, the
Depositor, the Master Servicer or either Servicer, and (ii) the Depositor shall
require the transferee to execute a certification substantially in the form of
Exhibit H or Exhibit I.
(d) No transfer of an ERISA Restricted Certificate or the Class A-R
Certificate shall be made to any employee benefit plan subject to Section 406 of
ERISA or Section 4975 of the Code or materially similar provisions of applicable
federal, state or local law ("Similar Law"), or a Person acting on behalf of
such plan, except pursuant to Clause (i)(B) or Clause (ii) below or using the
assets of such plan. No transfer of an ERISA Restricted Certificate or the Class
A-R Certificate shall be made unless the Depositor shall have received either
(i) a representation letter, substantially in the form of Exhibit M, from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Depositor, to the effect that (A) such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or Similar Law, or a Person acting on behalf of any such plan or using the
assets of such plan, or alternatively, (B) in the case of an ERISA Restricted
Certificate only, the source of funds for the purchase of such Certificate is an
"insurance company general account" within the meaning of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), and
the acquisition and holding of such Certificate is exempt under PTCE 95-60,
which representation letter shall not be an expense of the Master Servicer,
Trustee, the Depositor or either Servicer, or (ii) in the case of an ERISA
Restricted Certificate presented for registration in the name of an employee
58
benefit plan subject to ERISA or Section 4975 of the Code or Similar Law (or
comparable provisions of any subsequent enactments) or a trustee of any such
plan or any other Person who is using the assets of any such plan to effect such
acquisition, an Opinion of Counsel or such other representation as required by
and satisfactory to the Depositor to the effect that the purchase or holding of
such ERISA Restricted Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" pursuant to the Department of Labor Plan
Asset Regulations set forth in 29 C.F.R. "2510.3-101 and subject to the
fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of ERISA or the Code or Similar Law, will not constitute or result in
a prohibited transaction within the meaning of Section 406 or Section 407 of
ERISA or Section 4975 of the Code or Similar Law, and will not subject the
Trustee, the Depositor or the Servicer to any obligation in addition to those
undertaken in this Agreement, which opinion of counsel or other representation
shall not be an expense of the Master Servicer, Trustee, the Depositor or either
Servicer.
(e) At the option of a Certificateholder, a Certificate may be
exchanged for another Certificate or Certificates of authorized denominations of
a like Class, upon surrender of the Certificate to be exchanged at any office or
agency of the Trustee, or if a Paying Agent has been appointed under Section
4.05, the Paying Agent, maintained for such purpose. Whenever the Certificate is
so surrendered for exchange, the Depositor shall execute and the Authenticating
Agent shall authenticate and deliver, the Certificate which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Authenticating Agent duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(f) No service charge shall be made to the Holder for any transfer or
exchange of a Certificate, but Master Servicer may require payment by the
Certificateholders of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of such
Certificate.
(g) All Certificates surrendered for transfer or exchange shall be
destroyed by the Trustee, in accordance with the Trustee's or, if a Paying Agent
has been appointed under Section 4.05, the Paying Agent's, standard procedures.
(h) [Reserved].
(i) A Disqualified Organization is prohibited from acquiring beneficial
ownership of a Class A-R Certificate. Notwithstanding anything to the contrary
contained herein, unless and until the Servicer shall have received an Opinion
of Counsel, satisfactory to it in form and substance, to the effect that the
absence of the conditions contained in this Section 4.02(i) would not result in
the imposition of federal tax upon either REMIC Pool or cause either REMIC Pool
to fail to qualify as a REMIC, no transfer, sale or other disposition of the
Class A-R Certificate (including for purposes of this section any beneficial
interest therein) may be made without the express written consent of the
Certificate Registrar or, if no Certificate Registrar is appointed, the Trustee,
which consent is to be granted by the Certificate Registrar or, if no
Certificate Registrar is appointed, the Trustee only upon compliance with the
requirements of this Section. As a condition to granting its consent to a
transfer of a Class A-R Certificate, the Master Servicer shall require the
proposed transferee of such Certificate (including, in the case of the initial
issuance of the Class A-R Certificate, the initial Holder thereof) to execute a
letter and affidavit substantially in the form attached hereto as Exhibit K. In
the absence of a contrary instruction from the transferor of such Certificate,
declaration (11) in such affidavit may be left blank. If the transferor requests
by written notice to the Certificate Registrar or, if no Certificate Registrar
is appointed, the Trustee, prior to the date of the proposed transfer that one
of the two other forms of declaration (11) of such affidavit be used, then the
Certificate Registrar or, if no Certificate Registrar is appointed, the Trustee,
shall require that such form of declaration (11) be included in such affidavit.
59
As a condition to the granting of the consent referred to in this
Section 4.02(i), prior to the transfer, sale, pledge, hypothecation or other
disposition of the Class A-R Certificate or any interest therein, the
Certificate Registrar or, if no Certificate Registrar is appointed, the Trustee
shall require that (1) the proposed transferee deliver to the Trustee its
taxpayer identification number and state, under penalties of perjury that such
number is the social security or employee identification number, as the case may
be, of the transferee or provide an affidavit under penalties of perjury stating
that as of the date of such transfer such transferee is not and has no intention
of becoming a Disqualified Organization; (2) the proposed transferee deliver to
the Trustee an affidavit stating (i) that such transferee is not acquiring such
Class A-R Certificate as an agent, broker, nominee, or middleman for a
Disqualified Organization, (ii) if the Class A-R Certificate is a "non-economic
residual interest" within the meaning of Treas. Reg. "1.860E-1(c)(2), (X) that
no purpose of the acquisition of the Class A-R Certificate is to avoid or impede
the assessment or collection of tax, (Y) that such transferee has historically
paid its debts as they came due and will continue to pay its debts as they come
due, and (Z) that such transferee represents that it understands that, as the
holder of the non-economic residual interest, the transferee may incur tax
liabilities in excess of any cash flows generated by the interest and that the
transferee intends to pay taxes associated with holding the residual interest,
and (iii) unless the Certificate Registrar or, if no Certificate Registrar is
appointed, the Trustee consents to the transfer of the Class A-R Certificate to
a Person who is not a U.S. Person and who has furnished a duly completed and
effective Form W-8ECI (or any successor thereto), that it is a U.S. Person; (3)
if so requested by the transferor in written notice provided to the Certificate
Registrar or, if no Certificate Registrar is appointed, the Trustee, prior to
the date of the proposed transfer, the proposed transferee deliver to the
Trustee an affidavit that includes a declaration made in the form of declaration
(11) in the affidavit set forth in Exhibit K requested by the transferor; and
(4) the transferor deliver to the Certificate Registrar or, if no Certificate
Registrar is appointed, the Trustee a written certification that as of the date
of such transfer it has no knowledge and no reason to know that the affirmations
described in clauses (1), (2) and (3) were false. The Certificate Registrar or,
if no Certificate Registrar is appointed, the Trustee shall not grant the
consent referred to in this Section 4.02(i) if it has actual knowledge that any
statement made in the affidavit issued pursuant to the preceding sentence is not
true. Notwithstanding any purported transfer, sale or other disposition of the
Class A-R Certificate to a Disqualified Organization, such transfer, sale or
other disposition shall be deemed to be of no legal force or effect whatsoever
and such Disqualified Organization shall not be deemed to be a Class A-R
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Class A-R Certificate. If any purported
transfer shall be in violation of the provisions of this Section 4.02(i) then
the prior holder of the Class A-R Certificate shall, upon discovery that the
transfer of such Class A-R Certificate was not in fact permitted by this Section
4.02(i), be restored to all rights as a Holder thereof retroactive to the date
of the purported transfer of such Class A-R Certificate. The Trustee and the
Servicer shall be under no liability to any Person for any registration or
transfer of a Class A-R Certificate that is not permitted by this Section
4.02(i) or for making payments due on such Class A-R Certificate to the
purported Holder thereof or taking any other action with respect to such
purported Holder under the provisions of this Agreement so long as the transfer
was not registered under the written certification of the Certificate Registrar
or, if no Certificate Registrar is appointed, the Trustee as described in this
Section 4.02(i). The prior Holder shall be entitled to recover from any
purported Holder of a Class A-R Certificate that was in fact not a permitted
purported transferee under this Section 4.02(i) at the time it became a
purported Holder all payments made to such purported Holder on such Class A-R
Certificate; provided that the Servicer shall not be responsible for such
recovery. Each Class A-R Certificateholder, by the acceptance of the Class A-R
Certificate, shall be deemed for all purposes to have consented to the
provisions of this Section 4.02(i) and to any amendment to this Agreement deemed
necessary by counsel of the Trustee or the Servicer to ensure that the Class A-R
Certificate is not transferred to a Disqualified Organization and that any
transfer of such Class A-R Certificate will not cause the imposition of a tax
upon the Trust Fund or cause either REMIC Pool to fail to qualify as a REMIC.
The restrictions on transfer of the Class A-R Certificate will cease to apply
and be void upon receipt by the Certificate Registrar or, if no Certificate
Registrar is appointed, the Trustee of an Opinion of Counsel to the effect that
such restrictions on transfer are no longer necessary to avoid the risk of
material federal taxation to the Trust Fund or prevent either REMIC Pool from
qualifying as a REMIC.
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(j) The Master Servicer shall make available upon written request to
each Holder and each proposed transferee of a Class B-3, Class B-4 or Class B-5
Certificate such information as may be required to permit the proposed transfer
to be effected pursuant to Rule 144A under the Securities Act of 1933.
(k) The owner of the Excess Amount Interest as of the Closing Date
shall be Washington Mutual Bank, FA. The Excess Amount Interest shall not be
transferable (subject to satisfaction of the requirements of Section 4.02(e) and
4.02(d)). On the Closing Date, the Master Servicer shall register the Excess
Amount Interest in the name of Washington Mutual Bank, FA in the Certificate
Register.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Trustee or, if a Paying Agent
has been appointed under Section 4.05, the Paying Agent, or the Trustee or, if a
Paying Agent has been appointed under Section 4.05, the Paying Agent, receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Trustee or, if a Paying Agent has
been appointed under Section 4.05, the Paying Agent, such security or indemnity
as may be required by it to save it harmless, then, in the absence of notice to
the Trustee or, if a Paying Agent has been appointed under Section 4.05, the
Paying Agent, that such Certificate has been acquired by a bona fide purchaser,
the Trustee or, if a Paying Agent has been appointed under Section 4.05, the
Paying Agent, shall 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 Class. Upon the issuance of any new Certificate under this Section,
the Trustee or, if a Paying Agent has been appointed under Section 4.05, the
Paying Agent, may require of the Certificateholder 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 connected therewith. Any replacement
Certificate of any Class issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest in
the distributions to which the Certificateholders of such Class are entitled, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time, and such mutilated, destroyed, lost or
stolen Certificate shall be of no force or effect under this Agreement, to the
extent permitted by law.
Section 4.04. Persons Deemed Owners. Prior to due presentation of a
Certificate of any Class for registration of transfer, the Depositor, the Master
Servicer, the Paying Agent and the Trustee may treat the Person in whose name
any Certificate is registered on the Record Date as the owner of such
Certificate and the Percentage Interest in the distributions to which the
Certificateholders of such Class are entitled on the relevant date as the Holder
of such Certificate and the Percentage Interest represented by such Certificate
for the purpose of receiving remittances pursuant to Section 6.01 and for all
other purposes whatsoever, and neither the Depositor, the Master Servicer nor
the Trustee shall be affected by notice to the contrary.
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Section 4.05. Appointment of Paying Agent; Certificate Account. The
Trustee may appoint a Paying Agent hereunder, which Paying Agent shall not be
Depositor, the Seller, or an Affiliate of the Depositor or the Seller unless
such Paying Agent is the Corporate Trust Department of Chase. In the event of
any such appointment, on each Servicer Remittance Date, each Servicer shall
deposit or cause to be deposited with the Paying Agent from funds on deposit in
the related Collection Account a sum up to the portion of the Available
Distribution Amount relating to the Mortgage Loans serviced by such Servicer,
such sum to be held in trust for the benefit of Certificateholders in a
segregated account (the "Certificate Account") which shall be an Eligible
Account in the name of "Citibank, N.A., as Trustee, in trust for and for the
benefit of the Certificateholders of Multi-Class Mortgage Pass-Through
Certificates, Chase Mortgage Finance Corporation, Series 2001-S5 - Certificate
Account". The Master Servicer shall cause the Paying Agent to perform each of
the obligations of the Paying Agent set forth herein and shall be liable to the
Trustee and the Certificateholders for failure of the Paying Agent to perform
such obligations. If the Paying Agent is a party other than the Trustee, the
Trustee shall have no liability in connection with the performance or failure of
performance of the Paying Agent. The Trustee designates the Corporate Trust
Department of Chase as the initial Paying Agent. Only the Trustee may remove the
Paying Agent, and may do so at will.
If, on any Distribution Date, the Paying Agent fails to distribute to
Certificateholders the amounts then on deposit in the Certificate Account for
the purposes specified herein, the Trustee shall be obligated promptly upon its
knowledge thereof to distribute such amounts to Certificateholders in the manner
and in such amounts based upon information provided by the Servicer; provided
that in no event shall the Trustee be obligated for purposes of this paragraph
to distribute to Certificateholders any amounts other than those on deposit in
the Certificate Account or expend any funds not reimbursable pursuant to Section
10.05 hereof, except as otherwise provided herein. Notwithstanding anything in
this Agreement to the contrary, the Trustee shall be liable to the Servicers and
the Certificateholders only for its negligence in connection with the withdrawal
of funds from the Certificate Account by the Trustee and the distribution of
such funds by the Trustee to Certificateholders pursuant to this paragraph.
The Master Servicer shall cause each Paying Agent other than the
Trustee to execute and deliver to the Master Servicer and the Trustee on the
Closing Date or, if subsequently appointed, on the date of appointment, a
written instrument executed by an officer of the Paying Agent in which such
Paying Agent shall agree with the Master Servicer and the Trustee that such
Paying Agent will hold all sums held by it for the payment to Certificateholders
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to such Certificateholders.
Section 4.06. Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents (each, an
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be an entity organized and
doing business under the laws of the United States of America or of any state,
having a combined capital and surplus of at least $15,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities. If the Authenticating Agent is a party other than
the Trustee, the Trustee shall have no liability in connection with the
performance or failure of performance of the Authenticating Agent. The Trustee
hereby appoints Chase as the initial Authenticating Agent.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance within the provisions of this Section 4.06, the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 4.06. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall be
entitled to reasonable compensation for its services and any such compensation
shall be payable solely by the Trustee, without any right of reimbursement from
the Depositor, the Servicers or the Trust Fund.
[END OF ARTICLE IV]
ARTICLE V
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 5.01. Servicers to Service Mortgage Loans. Each of CMMC and
WMMSC shall service and administer the CMMC Serviced Mortgage Loans and the
WMMSC Serviced Mortgage Loans, respectively, and each shall have full power and
authority, acting alone or through Sub-Servicers as provided in Section 5.02, to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration, all in accordance with Accepted
Servicing Practices. Without limiting the generality of the foregoing, each
Servicer in its own name or in the name of a Sub-Servicer shall, pursuant to a
power of attorney granted hereby by the Trustee for such purposes, when such
Servicer or the Sub-Servicer, as the case may be, believes it appropriate in its
best judgment, to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans serviced by it and
with respect to the related Mortgaged Properties; provided, however, that
subject to the provisions of this paragraph, each Servicer may allow a
modification with respect to a Mortgage Loan serviced by it if such Servicer
would take such action in the ordinary course of its business if it were the
owner of the Mortgage Loan. Either Servicer may agree to a modification of any
Mortgage Loan serviced by it (the "Relevant Mortgage Loan") upon the request of
the related Mortgagor, provided that (i) the modification is in lieu of a
refinancing and the Mortgage Rate on the Relevant Mortgage Loan, as modified, is
approximately a prevailing market rate of newly-originated mortgage loans having
similar terms, (ii) the aggregate of the adjusted bases of all Modified Mortgage
Loans (including the Relevant Mortgage Loans) plus the aggregate adjusted bases
of any assets that are not qualified mortgages or permitted investments under
Section 860G(a) of the Code that are assets of the Trust Fund established
hereunder at all times on any day is less than one percent of the aggregate of
the adjusted bases of all assets of the Trust Fund (including such Modified
Mortgage Loans) on such day, and (iii) such Servicer purchases the Relevant
Mortgage Loan from the Trust Fund as described below. Effective immediately
after such modification, and, in any event, on the same Business Day on which
the modification occurs, all right, title and interest of the Trustee in and to
the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to the related Servicer and all benefits and burdens of ownership
thereof, including without limitation the right to accrued interest thereon from
and including the date of modification and the risk of default thereon, shall
pass to such Servicer. To confirm such transfer and assignment, the related
Servicer, as a servicer hereunder, as soon as practicable shall execute an
instrument of assignment of the Modified Mortgage Loan without recourse in
customary form to such Servicer in its individual capacity. The related Servicer
shall deposit the Purchase Price for any Modified Mortgage Loan in the related
Collection Account pursuant to Section 5.08. Upon receipt by the Trustee of
written notification of any such deposit signed by a Servicing Officer, the
Trustee shall release to the applicable Servicer the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be necessary more fully to vest in such Servicer
any Modified Mortgage Loan previously transferred and assigned pursuant thereto.
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Each Servicer shall furnish to the Trustee for execution and redelivery
to such Servicer or, at the request of such Servicer, a Sub-Servicer, such
documents necessary or appropriate to enable such Servicer to service and
administer the Mortgage Loans and the Trustee shall not be responsible for such
Servicer's application thereof. Each Servicer agrees to remain eligible as
either a FNMA or FHLMC seller/servicer, or both, for so long as it is a
Servicer.
All Servicing Advances made by the Servicers in effecting the timely
payment of taxes, insurance and assessments on the properties subject to the
Mortgage Loans shall not, for the purpose of calculating monthly distributions
to Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loan so permit, and such
Servicing Advances shall be recoverable by the applicable Servicer to the extent
permitted by Sections 5.09 and 5.23.
Section 5.02. Sub-Servicing Agreements Between Servicers and
Sub-Servicers; Enforcement of Sub-Servicer's Obligations
(a) Each Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of all or part of the
Mortgage Loans serviced by it. References in this Agreement to actions taken or
to be taken by either Servicer in servicing the Mortgage Loans serviced by it
include actions taken or to be taken by a Sub-Servicer on behalf of such
Servicer. Each Sub-Servicing Agreement will be upon such terms and conditions as
are not inconsistent with this Agreement and as the applicable Servicer and the
Sub-Servicer have agreed. Each Servicer hereby agrees to notify the Trustee in
writing promptly upon the appointment of any Sub-Servicer, except, in the case
of WMMSC, Washington Mutual Bank, FA, which may be appointed as Sub-Servicer by
WMMSC at any time without notice to the Trustee. For purposes of this Agreement,
the receipt by a Sub-Servicer of any amount with respect to a Mortgage Loan
(other than amounts representing servicing compensation or reimbursement for an
advance) shall be treated as the receipt by the related Servicer of such amount.
Any Sub-Servicer shall deposit all such funds in an Eligible Account.
(b) As part of its servicing activities hereunder, each Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer appointed by it under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements as appropriate,
and the pursuit of other remedies, shall be in such form and carried out to such
an extent and at such time as the applicable Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. The applicable Servicer shall pay the costs of such enforcement at its
own expense but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loans or (ii) from a
specific recovery of costs, expenses or attorneys' fees against the party
against whom such enforcement is directed.
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Section 5.03. Successor Sub-Servicers. Each Servicer shall be entitled
to terminate any Sub-Servicing Agreement that may exist in accordance with the
terms and conditions of such Sub-Servicing Agreement and without any limitation
by virtue of this Agreement.
Section 5.04. Liability of the Servicers. Notwithstanding any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between either Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise, the applicable
Servicer shall remain obligated and liable to the Trustee and Certificateholders
for the servicing and administering of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the same
terms and conditions as if such Servicer alone were servicing and administering
the Mortgage Loans. Each Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of such Servicer and nothing contained
in this Agreement shall be deemed to limit or modify such indemnification.
Section 5.05. No Contractual Relationship Between Sub-Servicer and
Trustee or Certificateholders. Any Sub-Servicing Agreement that may be entered
into and any other transactions or services relating to the Mortgage Loans
involving a Sub-Servicer in its capacity as such and not as an originator shall
be deemed to be between the Sub-Servicer and the applicable Servicer alone, and
the Trustee, the Master Servicer, the other Servicer and Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Sub-Servicer.
Section 5.06. Termination of Sub-Servicing Agreement. If either
Servicer shall for any reason no longer be a Servicer hereunder (including by
reason of any Event of Default), such Servicer shall thereupon terminate each
Sub-Servicing Agreement that may have been entered into, and the Trustee, its
designee or the successor servicer and the Trustee shall not be deemed to have
assumed any of such Servicer's interest therein or to have replaced such
Servicer as a party to any such Sub-Servicing Agreement.
Section 5.07. Collection of Mortgage Loan Payments. Continuously from
the date hereof until the principal and interest on all Mortgage Loans are paid
in full, each Servicer will proceed diligently to collect all payments due under
each of the related Mortgage Loans when the same shall become due and payable;
provided, however, that each Servicer may elect, to the extent consistent with
Accepted Servicing Practices, to waive any late payment charge and shall, to the
extent such procedures shall be consistent with this Agreement, follow such
collection procedures as it follows with respect to conventional mortgage loans
held in its own portfolio. Any such arrangements shall not diminish or otherwise
affect either Servicer's obligation to make Advances pursuant to Section 6.03.
Section 5.08. Establishment of Collection Accounts; Deposit in
Collection Account.With respect to all of the Mortgage Loans, 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 for the benefit of the
Certificateholders (each, a "Collection Account" and collectively, the
"Collection Accounts") which are Eligible Accounts, in the form of a trust
account, in the name of "Citibank, N.A., as Trustee, in trust for and for the
benefit of the Certificateholders of Multi-Class Mortgage Pass-Through
Certificates, Chase Manhattan Mortgage Corporation as Servicer, Chase Mortgage
Finance Corporation, Series 2001-S5 - Collection Account." Such Collection
Accounts shall be established with a commercial bank, a savings bank or a
savings and loan association. Each Servicer may invest, or cause the institution
maintaining its Collection Account to invest, moneys in such Collection Account
in Eligible Investments, which shall mature not later than the Business Day next
preceding the Distribution Date next following the date of such investment and
shall not be sold or disposed of prior to its maturity. All income and gain
realized from any such investment shall be for the benefit of the related
Servicer as additional compensation and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of any
such investments (to the extent not offset by income from other such
investments) shall be deposited in the applicable Collection Account by the
related Servicer out of its own funds immediately as realized; provided,
however, that if the Trustee becomes a Servicer, the Trustee shall not be
required to deposit the amount of any loss incurred prior to it becoming a
Servicer.
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Each Servicer shall deposit or cause to be deposited in its
Collection Account on a daily basis (and not later than the second Business Day
following receipt), and retain therein:
(i) All payments which were received after the Cut-off Date on
account of principal of the Mortgage Loans serviced by such Servicer
(other than the principal portion of Monthly Payments due on or before
the Cut-off Date), and all Principal Prepayments collected on or after
the Cut-off Date;
(ii) All payments which were received after the Cut-off Date on
account of interest on the Mortgage Loans serviced by such Servicer
(net of the Servicing Fee)(other than the interest portion of Monthly
Payments due on or before the Cut-off Date);
(iii) Net Liquidation Proceeds with respect to the Mortgage Loans
serviced by such Servicer;
(iv) All Insurance Proceeds with respect to the Mortgage Loans
serviced by such Servicer received by such Servicer under any title,
hazard or other insurance policy, including amounts required to be
deposited pursuant to Sections 5.16 and 5.20, other than proceeds to be
held in the Escrow Account or applied to the restoration or repair of
the Mortgaged Property (or Underlying Mortgaged Property, in the case
of a Co-op Loan) or released to the Mortgagor in accordance with such
Servicer's normal servicing procedures or otherwise applied or held as
required by applicable law;
(v) All awards or settlements in respect of condemnation
proceedings affecting any Mortgaged Property (or Underlying Mortgaged
Property, in the case of a Co-op Loan), with respect to any Mortgage
Loan serviced by such Servicer which are not released to the Mortgagor
in accordance with the Servicer's normal servicing procedures;
(vi) All Repurchase Proceeds with respect to the Mortgage Loans
serviced by such Servicer;
(vii) All Advances made by such Servicer pursuant to Section 6.03;
(viii) All amounts representing revenues under the insurance
maintained by such Servicer provided pursuant to Section 5.19 to the
extent of any losses borne by any Certificateholder;
(ix) All revenues from any Mortgaged Property with respect to any
Mortgage Loan serviced by such Servicer acquired by such Servicer by
foreclosure or deed in lieu of foreclosure net of any Servicing
Advances with respect to such Mortgaged Property; and
(x) Any other amounts required to be deposited therein pursuant to
this Agreement.
Each Servicer shall maintain accounting records on a Mortgage Loan by
Mortgage Loan basis with respect to its Collection Account. Each Servicer shall
give notice to the Trustee, the Master Servicer and the Depositor and each
Rating Agency of any change in the location of its Collection Account, prior to
the use thereof. Notwithstanding anything to the contrary herein, no Monthly
Payment or any portion thereof shall be permitted to remain in any Collection
Account for more than 12 months. Any Monthly Payment or any portion thereof that
has remained in any Collection Account for 12 months shall be deemed a Principal
Prepayment and distributed to Certificateholders pursuant to the provisions of
this Agreement on the Distribution Date immediately following the end of such 12
month period.
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Section 5.09. Permitted Withdrawals from the Collection Accounts. Each
Servicer may, from time to time, withdraw funds from its Collection Account for
the following purposes:
(i) to reimburse itself for Advances made pursuant to Section 6.03
(including amounts to reimburse the related Sub-Servicer for advances
made pursuant to the applicable Sub-Servicing Agreement), such
Servicer's and the related Sub-Servicer's right to receive
reimbursement pursuant to this subclause (i) being limited to amounts
received on particular Mortgage Loans serviced by such Servicer which
represent Late Collections (net of the Servicing Fees) with respect to
those particular Mortgage Loans;
(ii) to pay itself the Servicing Fee relating to the Mortgage
Loans serviced by it;
(iii) to reimburse itself for unreimbursed Servicing Advances, or
to pay the related Sub-Servicer any unreimbursed Servicing Advances,
such Servicer's right to receive reimbursement or make payments to the
Sub-Servicer pursuant to this subclause (iii) with respect to any
Mortgage Loan serviced by such Servicer being limited to related
Liquidation Proceeds, Insurance Proceeds, and condemnation awards;
(iv) to reimburse itself (or the related Sub-Servicer) or the
Depositor for expenses incurred by and recoverable by or reimbursable
to it pursuant to Section 5.01 or 5.16;
(v) to reimburse itself (or the related Sub-Servicer) for any
Nonrecoverable Advances;
(vi) to pay to itself (or the related Sub-Servicer) income earned
on the investment of funds deposited in such Collection Account;
(vii) to make deposits into the Certificate Account in the amounts
and in the manner provided for herein;
(viii) to make payments to itself or others pursuant to any
provision of this Agreement, and to clear and terminate such Collection
Account upon the termination of this Agreement;
(ix) to pay to the owner of the Excess Amount Interest, on each
Servicer Remittance Date, the Excess Amount Distribution; and
(x) to withdraw amounts deposited in error.
Section 5.10. Establishment of Escrow Account; Deposits in Escrow
Account. With respect to those Mortgage Loans on which either Servicer or any
Sub-Servicer collects Escrow Payments, if any, such Servicer shall, and shall
cause any Sub-Servicer to, segregate and hold all funds collected and received
pursuant to each such Mortgage Loan which constitute 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 trust accounts. Such Escrow
Accounts shall be established with a commercial bank, a mutual savings bank or a
savings and loan association the deposits of which are insured by the FDIC in a
manner which shall provide maximum available insurance thereunder, and which may
be drawn on by the applicable Servicer. Each Servicer shall give notice to the
Trustee of the location of any Escrow Account, and of any change thereof, prior
to the use thereof. Nothing in this paragraph shall be deemed to require either
Servicer to collect Escrow Payments in the absence of a provision in the related
Mortgage requiring such collection.
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Each Servicer shall deposit, or cause to be deposited, in any Escrow
Account or Accounts on a daily basis, and retain therein, (i) all Escrow
Payments collected on account of any Mortgage Loans serviced by such Servicer,
for the purpose of effecting timely payment of any such items as required under
the terms of this Agreement and (ii) all amounts representing proceeds of any
hazard insurance policy which are to be applied to the restoration or repair of
any related Mortgaged Property (or Underlying Mortgaged Property, in the case of
a Co-op Loan). Each Servicer shall make withdrawals therefrom only to effect
such payments as are required under this Agreement, and for such other purposes
as are set forth in Section 5.11. Each Servicer shall be entitled to retain any
interest paid on funds deposited in any Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid to
the related Mortgagor and, to the extent required by law, the applicable
Servicer shall pay interest on escrowed funds to the related Mortgagor
notwithstanding that the Escrow Account is non-interest-bearing or that interest
paid thereon is insufficient for such purposes.
Section 5.11. Permitted Withdrawals from Escrow Account. Withdrawals
from any Escrow Account or Accounts may be made by a Servicer only (i) to effect
timely payments of ground rents, taxes, assessments, water rates, Standard
Hazard Policy premiums, or other items constituting Escrow Payments for the
related Mortgage, (ii) to reimburse such Servicer for any Servicing Advance made
by such Servicer, with respect to a related Mortgage Loan but only from amounts
received on the related Mortgage Loan which represent late payments or
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 or under applicable law, (iv) for application to
restoration or repair of the property subject to the related Mortgage, (v) to
pay to such Servicer, or to the Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account, (vi) to clear and
terminate the Escrow Account on the termination of this Agreement or (vii) to
withdraw amounts deposited in error.
Section 5.12. Payment of Taxes, Insurance and Other Charges. With
respect to each Mortgage Loan, each Servicer shall maintain, or cause to be
maintained, accurate records reflecting any delinquencies or nonpayments with
regard to taxes, assessments and Standard Hazard Policy premiums. Each Servicer
assumes full responsibility for ensuring the payment of all such bills and shall
effect payments of all such bills irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments and
shall make advances from its own funds to effect such payments.
Section 5.13. Transfer of Accounts. Each Servicer may transfer the
Collection Accounts or Escrow Accounts to an Eligible Account maintained with a
different depository institution from time to time.
Section 5.14. [Reserved].
Section 5.15. Maintenance of the Primary Insurance Policies. Neither
Servicer shall take, or permit any related Sub-Servicer to take, any action
which would result in non-coverage under any applicable Primary Insurance Policy
of any loss which, but for the actions of such Servicer or Sub-Servicer, would
have been covered thereunder. Except as otherwise required by applicable law, to
the extent coverage is available and until the loan-to-value ratio of the
related Mortgage Loan is reduced to 80%, each Servicer shall keep or cause to be
kept in full force and effect each such Primary Insurance Policy in an amount
equal to the amount by which the unpaid principal balance of the related
Mortgage Loan exceeds 75% of the value (as described in the definition of
Loan-to-Value Ratio) of the related Mortgaged Property (or Underlying Mortgaged
Property, in the case of a Co-op Loan). Neither Servicer shall cancel or refuse
to renew any such Primary Insurance Policy or consent to any related
Sub-Servicer canceling or refusing to renew any such Primary Insurance Policy
applicable to a Mortgage Loan subserviced by it, that is in effect at the date
of the initial issuance of the Certificates and is required to be kept in force
hereunder unless the replacement Primary Insurance Policy for such canceled or
non-renewed policy is maintained with an insurer whose claims-paying ability is
rated at least as high as the original insurer or is acceptable to each Rating
Agency as confirmed in writing by each such Rating Agency, unless otherwise
required by law.
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Section 5.16. Maintenance of Standard Hazard Policies.
(a) Each Servicer shall cause to be maintained for each Mortgage Loan
(other than a Co-op Loan) serviced by it a Standard Hazard Policy with extended
coverage as is prudent in the area where the Mortgaged Property is located in an
amount which is equal to the greater of (i) the lesser of (A) 100% of the
maximum insurable value of the improvements securing such Mortgage Loan or (B)
the principal balance owing on such Mortgage Loan, or (ii) such amount required
to prevent the Mortgagor or mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified at the time of origination in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) the applicable
Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (i) the outstanding Principal Balance of the
Mortgage Loan, (ii) the full insurable value or (iii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, as
amended. Each Servicer shall also maintain on property acquired upon
foreclosure, or by deed in lieu of foreclosure, of any Mortgage Loan serviced by
it, fire and hazard insurance with extended coverage in an amount which is not
less than the lesser of (i) the outstanding principal balance of the Mortgage
Loan or (ii) the maximum insurable value of the improvements which are a part of
such property, liability insurance, and, to the extent available, flood
insurance in an amount as provided above. Any amounts collected by a Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or property acquired in
liquidation of the Mortgage Loan, or released to the Mortgagor in accordance
with such Servicer's normal servicing procedures) shall be deposited, subject to
applicable law, in the applicable Collection Account. It is understood and
agreed that no earthquake or other additional insurance need be required by
either Servicer of any Mortgagor or maintained on property acquired in respect
of a Mortgage Loan, other than pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional insurance.
All such Standard Hazard Policies and other policies shall be endorsed with
standard mortgagee clauses with loss payable to the related Servicer or its
designee. Any such Standard Hazard Policies or other policies may be in the form
of blanket policies; provided, however, that in the event of any claim arising
in connection with a hazard loss such Servicer shall be obligated, in the case
of blanket insurance policies, to deposit in the applicable Collection Account
any amount not payable under such blanket policy because of a deductible clause
in such policy and not otherwise payable under an individual policy. Neither
Servicer shall interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent; provided, however, that neither Servicer
shall accept any such insurance policies from insurance companies unless such
companies are acceptable insurers in the discretion of the related Servicer.
(b) Any cost incurred by either Servicer in maintaining any of the
foregoing insurance shall not, for the purpose of calculating monthly
distributions to Certificateholders, be added to the amount owing under the
related Mortgage Loan, notwithstanding that the terms of the related Mortgage
Loan so permit. Such costs (other than the costs of maintaining a blanket hazard
insurance policy not attributable to a specific Mortgaged Property) shall be
recoverable by the applicable Servicer from the Mortgagor or out of Insurance
Proceeds or Liquidation Proceeds or to the extent permitted by Section 5.09.
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Section 5.17. [Reserved].
Section 5.18. [Reserved].
Section 5.19. Fidelity Bond and Errors and Omissions Insurance|. Each
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting on behalf of such
Servicer in any capacity with regard to the Mortgage Loans serviced by it to
handle funds, money, documents and papers relating to such Mortgage Loans. Any
such fidelity bond and errors and omissions insurance shall protect and insure
such Servicer against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of such persons and shall be maintained
at a level acceptable to FNMA. No provision of this Section 5.19 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve
either Servicer from its duties and obligations as set forth in this Agreement.
Upon request of the Trustee, each Servicer shall cause to be delivered to the
Trustee a certification evidencing coverage under such fidelity bond and
insurance policy. Promptly upon receipt by either Servicer of any notice from
the surety or the insurer that such fidelity bond or insurance policy has been
terminated or modified in a materially adverse manner, such Servicer shall
notify the Trustee, the Master Servicer and each Rating Agency of any such
termination or modification.
Section 5.20. Collections under Insurance Policies; Enforcement of
Due-On-Sale Clauses; Assumption Agreements.
(a) In connection with its activities as administrator and servicer of
the Mortgage Loans, each Servicer agrees to present, on behalf of itself, the
Trustee and the Certificateholders, claims to the insurer under any Standard
Hazard Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any insurance policies. Pursuant to Section
5.08, each Servicer shall deposit Insurance Proceeds in its Collection Account.
(b) When any Mortgaged Property is conveyed by the Mortgagor, the
related Servicer shall enforce any due-on-sale clause contained in any Mortgage
Note or Mortgage, to the extent permitted by such Mortgage Note or Mortgage,
applicable law and governmental regulations. Subject to the foregoing, each
Servicer is authorized to take or enter into an assumption or substitution
agreement from or with the Person to whom such property has been or is about to
be conveyed. In connection with such assumption or substitution, the applicable
Servicer shall apply such underwriting standards and follow such practices and
procedures as shall be normal and usual and as it applies to mortgage loans
owned solely by it.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, neither Servicer shall be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any conveyance by the
Mortgagor of the Mortgaged Property or any assumption of a Mortgage Loan by
operation of law which the applicable Servicer in good faith determines it may
be restricted by law from preventing, for any reason whatsoever.
(c) Subject to each Servicer's duty to enforce any due-on-sale clause
to the effect set forth in Section 5.20(b), in any case in which a Mortgaged
Property is to be 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, the applicable Servicer shall so notify the
Trustee by forwarding to the Trustee the original copy of such assumption or
substitution agreement, which copy shall be added by the Trustee 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. In connection with any such assumption, modification agreement or
substitution agreement, the interest rate of the related Mortgage Note shall not
be changed, the principal amount of the Mortgage Note shall not be increased or
decreased and the maturity of the Mortgage Note shall not be extended, nor shall
it be shortened by more than one year. Any fee collected by either Servicer for
entering into an assumption or substitution of liability agreement with respect
to such Mortgage Loan shall be retained by such Servicer as additional servicing
compensation.
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Section 5.21. Income and Realization from Defaulted Mortgage Loans.
Each Servicer, on behalf of the Trustee, shall foreclose upon or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans serviced by it as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 5.07, shall manage, conserve, protect and operate
such Mortgaged Properties for the purposes of their prompt disposition and sale,
and shall dispose of such Mortgaged Properties on such terms and conditions as
it deems in the best interests of the Certificateholders. Each Servicer shall
sell such property prior to the close of the third calendar year beginning after
the year in which such foreclosure or conversion occurs or such longer period as
would not prevent such Mortgaged Property from constituting "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code. In connection
with such activities, each Servicer shall follow such practices and procedures
as it shall deem necessary or advisable, as shall be normal and usual in its
general mortgage servicing activities, including its management of foreclosed
properties for a temporary period as contemplated herein. The foregoing is
subject to the provisions of Section 5.28 of this Agreement and to the proviso
that neither Servicer shall be required to expend its own funds in connection
with any management, foreclosure or towards the restoration of any property
unless it shall determine that such management, restoration or foreclosure will
increase the Liquidation Proceeds of the Mortgage Loan to Certificateholders
after reimbursement to itself for such expenses (respecting which it shall have
priority for purposes of withdrawals from the Collection Account pursuant to
Section 5.09). The applicable Servicer shall be permitted to earn income with
respect to any Mortgaged Properties, provided such income does not constitute
"net income from foreclosure property" within the meaning of Section 860G(c) of
the Code. The income earned from the management of such Mortgaged Properties,
net of reimbursement to such Servicer for expenses (including any taxes)
incurred in connection with such management, shall be applied to the payment of
principal of and interest on the related defaulted Mortgage Loans (with interest
accruing and principal amortizing 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 applicable Collection Account. To
the extent the income received is in excess of the amount attributable to
amortizing principal and accrued interest at the Net Mortgage Rate on the
related Mortgage Loan, such excess shall be deposited in such Collection
Account.
Each Servicer shall take into account the existence of any hazardous
substances, hazardous wastes or solid wastes, as such terms are defined in the
Comprehensive Environmental Response Compensation and Liability Act, the
Resources Conservation and Recovery Act of 1976, as amended, or other federal,
state or local environmental legislation, on a Mortgaged Property (or Underlying
Mortgaged Property, in the case of a Co-op Loan) relating to a Mortgage Loan
Serviced by it in determining whether to foreclose upon or otherwise comparably
convert the ownership of such property. To the extent that the applicable
Servicer has actual knowledge of any such substance or waste, it shall consult
with the Trustee regarding the appropriate course of action. Neither Servicer
shall institute foreclosure actions with respect to a property containing
substance or waste as described above if it reasonably believes that such action
would not be consistent with its servicing standards, and in no event shall such
Servicer manage, operate or take any other action with respect thereto which
such Servicer in good faith believes will result in "clean-up" or other
liability under applicable law. The net income from the rental or sale of a REO
Property shall be deposited in the Collection Account within two (2) Business
Days after receipt thereof by the Servicer.
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Section 5.22. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan
serviced by it, or upon the receipt by either Servicer of a notification that
payment in full will be made in a manner customary for such purposes, such
Servicer shall immediately notify the Trustee (if the Trustee holds the related
Mortgage File) by a certification (which certification shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the applicable Collection
Account pursuant to Section 5.08 have been or will be so deposited) of a
Servicing Officer and shall request delivery to it of the Mortgage File. Upon
receipt of such certification and request, within five Business Days the Trustee
shall release the related Mortgage File to the applicable Servicer and execute
and deliver to such Servicer the request for reconveyance, deed of reconveyance
or release or satisfaction of mortgage or such other instruments releasing the
lien of the Mortgage as have been provided by such Servicer to the Trustee,
together with the Mortgage Note with written evidence of cancellation thereon,
and the Trustee shall have no further responsibility with respect to said
Mortgage File. Upon any such payment in full, or the receipt of such
notification, the applicable Servicer is authorized to procure from the Trustee
under the deed of trust which secured the Mortgage Note, if any, a deed of full
reconveyance covering the property encumbered by such deed of trust, which
assignment of deed of trust, except as otherwise provided by any applicable law,
shall be recorded by such Servicer in the appropriate land records in the
jurisdiction in which the assignment of deed of trust is recorded, or, as the
case may be, to procure from the Trustee an instrument of satisfaction or, if
the Mortgagor so requests, an assignment without recourse, which deed of
reconveyance, instrument of satisfaction or assignment shall be delivered by
such Servicer to the Person or Persons entitled thereto. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account or to the Trustee.
(b) From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan serviced by it, the related Servicer shall
deliver to the Trustee a certificate of a Servicing Officer requesting that
possession of the Mortgage File be released to such Servicer and certifying as
to the reason for such release and that such release will not invalidate any
insurance coverage provided in respect of the Mortgage Loan under any of the
insurance policies required by this Agreement. With such certificate, such
Servicer shall require that the Trustee release the Mortgage File, and, within
five (5) Business Days, the Trustee shall deliver the Mortgage File or any
document therein to such Servicer. Such Servicer shall cause each Mortgage File
so released to be returned to the Trustee when the need therefor by such
Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated and
the Net Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Collection Account or (ii) the Mortgage File has been delivered to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
such Servicer has delivered to the Trustee a certificate of a Servicing Officer
in the form of Exhibit L hereto certifying as to the name and address of the
Person to which such Mortgage File was delivered and the purpose or purposes of
such delivery.
(c) Upon written request of either Servicer, the Trustee shall execute
and deliver to such Servicer any court pleadings, requests for trustee's sale or
other documents prepared by and delivered by such Servicer to the Trustee
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity. Together with such documents or
pleadings, such Servicer shall deliver to the Trustee a certificate of a
Servicing Officer requesting that such pleadings or documents be executed by the
Trustee and certifying as to the reason such documents or pleadings are required
and that the execution and delivery thereof by the Trustee will not invalidate
any insurance coverage under the insurance policies required under this
Agreement or invalidate or otherwise affect the lien of the Mortgage, except for
the termination of such a lien upon completion of the foreclosure or trustee's
sale.
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Section 5.23. Servicing and Other Compensation. Each Servicer, as
compensation for its activities hereunder, shall be entitled to receive, on or
prior to each Distribution Date, the amounts provided for as the Servicing Fee
with respect to Mortgage Loans serviced by it and as reimbursement for
Nonrecoverable Advances, Servicing Advances and reimbursement for Advances with
respect to Mortgage Loans serviced by it, all as specified by Section 5.09. The
amount of compensation or reimbursement provided for shall be accounted for on a
Mortgage Loan-by-Mortgage Loan basis.
Additional servicing compensation in the form of assumption fees,
prepayment fees and late payment charges shall be retained by each Servicer with
respect to Mortgage Loans serviced by it, to the extent permitted by applicable
law. Each Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including the fees and
expenses of the Trustee and any Sub-Servicer) and shall not be entitled to
reimbursement therefor except as specifically provided in Sections 5.09 and
5.21.
Section 5.24. 1934 Act Reports.
(a) The Paying Agent shall, on behalf of the Trust, make all filings
("Periodic Reports") required to be made by the Depositor or the Trust (other
than the filings relating to the closing of this transaction) with respect to
the Class A Certificates, the Class M Certificates, the Class B-1 Certificates
and the Class B-2 Certificates pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder.
(b) Within thirty (30) days after the beginning of the first fiscal
year during which the Trust's obligation to file Periodic Reports pursuant to
the Exchange Act shall have been suspended, the Depositor may prepare, or cause
to be prepared, a notice on Commission Form 15 ("Form 15") and is hereby
authorized to and shall execute such Form 15 on the Trust's behalf; provided,
however, that the Depositor shall be under no obligation to prepare such notice
if the number of Certificateholders exceeds 300. The Master Servicer shall file
any notice on Form 15 with the Commission in accordance with the provisions of
Rule 15d-6 under the Exchange Act.
Section 5.25. Annual Statement as to Compliance. Each Servicer will
deliver to the Depositor and the Trustee on or before April 30 of each year,
beginning with April 30 in the year which begins not less than three (3) months
after the Closing Date, an Officers' Certificate stating, as to each signer
thereof, that (i) a review of the activities of such Servicer during the
preceding calendar year and of performance under this Agreement has been made
under such officer's supervision, (ii) to the best of such officer's knowledge,
based on such review, 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 (iii) to the best of such
officer's knowledge, each Sub-Servicer has fulfilled its obligations under its
Sub-Servicing Agreement in all material respects, or if there has been a
material default in the fulfillment of such obligations, specifying such default
known to such officers and the nature and status thereof. Copies of such
statement shall be provided to the Master Servicer and to each Rating Agency by
such Servicer. Copies of such statement shall also be provided by such Servicer
to any Certificateholder upon request. If such Servicer shall fail to provide
such copies and a Responsible Officer of the Trustee is aware that such Servicer
has not so provided copies, the Trustee shall provide such copies at such
Servicer's expense if the Trustee has received such statement.
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Section 5.26. Annual Independent Public Accountants' Servicing Report.
On or before April 30 of each year, beginning with April 30 in the year which
begins not less than three (3) months after the Closing Date, each Servicer at
its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Depositor and the Trustee to the effect that (A) with respect
to CMMC, such firm has examined certain documents and records relating to the
servicing of the related Mortgage Loans and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single Audit
Program for Mortgage Bankers, such servicing has been conducted in compliance
with the manner of servicing set forth in pooling and servicing agreements
substantially similar to this Agreement, except for (i) such exceptions as such
firm shall believe to be immaterial and (ii) such other exceptions as shall be
set forth in such statement and (B) in the case of WMMSC, 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 statement, nothing came to such firm's attention that indicated that
the applicable Servicer was not in compliance with Section 5.08, Section 5.09,
Section 5.10, Section 5.11, Section 5.23 and Section 5.25 of this Agreement,
except for (i) such exceptions as such firm believes to be immaterial, and (ii)
such other exceptions as set forth in such statement. Copies of such statement
shall be provided to the Master Servicer and to each Rating Agency, and, upon
request, to the Certificateholders, by such Servicer, or by the Trustee at such
Servicer's expense if the Trustee has received such statement and such Servicer
shall fail to provide such copies and the Trustee is aware that such Servicer
has not so provided copies.
Section 5.27. Access to Certain Documentation; Rights of the Depositor
in Respect of the Servicers. Each Servicer shall provide access to the Trustee,
the Master Servicer, Certificateholders which are savings and loan associations,
banks or insurance companies or examiners of any federal or state banking or
insurance regulatory authority to the documentation regarding the Mortgage Loans
if so required by applicable regulations of any regulatory authority, such
access to be afforded subject to reimbursement for expenses without charge but
only upon reasonable request and during normal business hours at the offices of
such Servicer designated by it. The Depositor may, but is not obligated to,
enforce the obligations of each Servicer under this Agreement. The Depositor
shall not assume any responsibility or liability for any action or failure to
take action by either Servicer and is not obligated to supervise the performance
of either Servicer under this Agreement or otherwise.
Section 5.28. REMIC-Related Covenants. For as long as the Trust Fund
shall exist, the Servicers, the Master Servicer and the Trustee shall act in
accordance herewith to assure continuing treatment of each REMIC Pool as a
REMIC. In particular:
(a) Neither Servicer nor the Master Servicer shall create, or permit
the creation of, any "interests" in each REMIC Pool within the meaning of
Section 860G(a) of the Code other than the "regular interests" in each REMIC
Pool designated as such in Section 2.04(a), the Subsidiary Residual Interest and
the Master Residual Interest;
(b) As of all times as may be required by the Code, each Servicer and
the Master Servicer will ensure that substantially all of the assets of each
REMIC Pool will consist of "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. The Master Servicer and the Trustee, upon the direction
of the Master Servicer, also will maintain records that are sufficient to
indicate each REMIC Pool's compliance with applicable requirements of the Code
(and applicable Proposed, Temporary or final Treasury Regulations) relating to
the assets held by such REMIC Pool. Further, neither Servicer shall permit and
the Trustee shall not accept the transfer or substitution of any Mortgage Loan
other than pursuant to Section 3.03, 5.01 or 5.21 of this Agreement, and neither
Servicer shall, in any case, permit substitution later than two (2) years from
the Closing Date unless such Servicer and the Trustee have received an Opinion
of Counsel, which will not be an expense of the Trust Fund, that such transfer
or substitution would not adversely affect the REMIC status of either REMIC Pool
or would not otherwise be prohibited by this Agreement;
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(c) Each Servicer and the Master Servicer shall ensure that neither
REMIC Pool receives a fee or other compensation for services and that neither
REMIC Pool receives any income from assets other than "qualified mortgages"
within the meaning of Section 860G(a)(3) of the Code or "permitted investments"
within the meaning of Section 860G(a)(5) of the Code, and shall take whatever
action it deems necessary to avoid any material tax imposed by the Code on
either REMIC Pool;
(d) The Trustee shall not sell or permit the sale of all or any portion
of the Mortgage Loans or of any Eligible Investment unless such sale is as a
result of a repurchase of the Mortgage Loans pursuant to this Agreement or the
Trustee has received an Opinion of Counsel, which will not be an expense of the
Trust Fund or the Trustee, to the effect that such sale (i) is pursuant to a
"qualified liquidation" as defined in Section 860F(a)(4) of the Code and as
described in Section 11.01 hereof, or (ii) would not be treated as a "prohibited
transaction" within the meaning of Section 860F(a)(2) of the Code that results
in the realization of a material amount of gain or loss for federal income tax
purposes;
(e) The Trustee shall not accept any contribution to either REMIC Pool
after the Startup Day without an Opinion of Counsel (which shall not be an
expense of the Trustee) that such contribution is included within the exceptions
provided in Section 860G(d)(2) of the Code and, therefore, will not be subject
to the tax imposed by Section 860G(d)(1) of the Code; and
(f) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer and the Trustee, at the direction of the Master Servicer, shall
take any other action or refuse to take any action otherwise required (including
adjusting the Purchase Price for any Mortgage Loan) where the Master Servicer
deems such action or inaction reasonably necessary to ensure the REMIC status of
either REMIC Pool under the Code and applicable regulations or to avoid the
imposition of any material tax liability on either REMIC Pool that will affect
amounts distributable to the Certificateholders.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on either REMIC Pool, such tax shall be treated in the same
manner as a Realized Loss and shall be charged against amounts otherwise
distributable to the Holders of the Certificates, except as provided in the last
sentence of this Section 5.28 (g). The Trustee or, if a Paying Agent has been
appointed under Section 4.05, the Paying Agent shall withdraw from the
Collection Account sufficient funds to pay or provide for the payment of, and to
actually pay, such tax as is estimated to be legally owed by (but such
authorization shall not prevent the Trustee or, if a Paying Agent has been
appointed under Section 4.05, the Paying Agent from contesting, at the expense
of the Trust Fund (other than as a consequence of a breach of its obligations
under this Agreement), any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Trustee or, if a Paying Agent has been appointed under Section
4.05, the Paying Agent is hereby authorized to and shall segregate, into a
separate non-interest bearing account, the net income from any "prohibited
transaction" under Code Section 860F(a), the amount of any taxable contribution
to the Trust Fund after the Startup Day that is subject to tax under Code
Section 860G(d), and 35% of any estimated "net income from foreclosure property"
under Section 860G(c) and use such income or amount, to the extent necessary, to
pay such tax. To the extent that any such tax is paid to the Internal Revenue
Service or applicable state or local tax authorities, the Trustee or a Paying
Agent has been appointed under Section 4.05, the Paying Agent shall retain an
equal amount from future amounts otherwise distributable to the Holder of the
Class A-R Certificate and shall distribute such retained amounts to the Holders
of the other Classes of Certificates, to the extent they remain outstanding,
until they are fully reimbursed for any amount of such taxes previously charged
to the then Holder of the Class R Certificate. Neither the Trustee, the Master
Servicer nor either Servicer shall be responsible for any taxes imposed on
either REMIC Pool except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement.
[END OF ARTICLE V]
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ARTICLE VI
PAYMENTS TO THE CERTIFICATEHOLDERS
Section 6.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall apply an amount
on deposit in the Certificate Account equal to the Available Distribution Amount
(net of the Master Servicer Fee) in the following order of priority:
(i) to the Class A Certificateholders, all distributable amounts
up to the sum of (A) the Aggregate Class A Interest Accrual Amount and
(B) the Aggregate Class A Interest Shortfall;
(ii) the balance, if any, of the Available Distribution Amount
shall be distributed first, (A) to the Class IA and Class A-R
Certificateholders in the amounts distributable pursuant to (b)(ii)(A)
and (b)(iii) below, up to the Non-PO Class IA Optimal Principal Amount
and to Class A-P Component One, the Group One Class A-P Amount pursuant
to (b)(ii)(A) and (b)(iii) below and (B) to the Class IIA-1
Certificateholders in the amounts distributable pursuant to (b)(ii)(B)
and (b)(iv) below, up to the Non-PO Class IIA Optimal Principal Amount
and to Class A-P Component Two, the Group Two Class A-P Amount pursuant
to (b)(ii)(B) and (b)(iv) below, and second, to Class A-P Component One
and Class A-P Component Two, the applicable Class A-P Shortfall Amount,
in accordance with paragraph (b)(v) below;
(iii) to the Class M Certificateholders, the balance, if any, of
the Available Distribution Amount after making the distributions
provided for in paragraphs (i) and (ii) above, in accordance with, and
up to the amount calculated pursuant to, Section 6.01(c) below;
(iv) to the Class B Certificateholders, the balance, if any, of
the Available Distribution Amount after making the distributions
provided for in paragraphs (i) through (iii) above, in accordance with,
and up to the amounts calculated pursuant to, Section 6.01(d) below;
and
(v) to the Class A-R Certificateholders the balance, if any, of
the Available Distribution Amount remaining after the distributions
provided for in paragraphs (i) through (iv) above.
(b) Amounts payable to the Class A Certificateholders on any
Distribution Date shall be distributed as follows:
(i) to the extent the amount available for distribution pursuant
to paragraph (a)(i) above is sufficient:
(A) to the Class IA-1 Certificateholders, (1) the Class IA-1
Interest Accrual Amount plus (2) the Class IA-1 Shortfall from the
preceding Distribution Date;
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(B) to the Class IA-2 Certificateholders, (1) the Class IA-2
Interest Accrual Amount plus (2) the Class IA-2 Shortfall from the
preceding Distribution Date;
(C) to the Class IA-3 Certificateholders, (1) the Class IA-3
Interest Accrual Amount plus (2) the Class IA-3 Shortfall from the
preceding Distribution Date;
(D) to the Class IA-4 Certificateholders, (1) the Class IA-4
Interest Accrual Amount plus (2) the Class IA-4 Shortfall from the
preceding Distribution Date;
(E) to the Class IA-5 Certificateholders, (1) the Class IA-5
Interest Accrual Amount plus (2) the Class IA-5 Shortfall from the
preceding Distribution Date;
(F) to the Class IA-6 Certificateholders, (1) the Class IA-6
Interest Accrual Amount plus (2) the Class IA-6 Shortfall from the
preceding Distribution Date; and
(G) to the Class IA-7 Certificateholders, (1) the Class IA-7
Interest Accrual Amount plus (2) the Class IA-7 Shortfall from the
preceding Distribution Date;
(H) to the Class IA-8 Certificateholders, (1) the Class IA-8
Interest Accrual Amount plus (2) the Class IA-8 Shortfall from the
preceding Distribution Date;
(I) to the Class IA-9 Certificateholders, (1) the Class IA-9
Interest Accrual Amount plus (2) the Class IA-9 Shortfall from the
preceding Distribution Date;
(J) to the Class IA-10 Certificateholders, (1) the Class IA-10
Interest Accrual Amount plus (2) the Class IA-10 Shortfall from
the preceding Distribution Date;
(K) to the Class IA-11 Certificateholders, (1) the Class IA-11
Interest Accrual Amount plus (2) the Class IA-11 Shortfall from
the preceding Distribution Date;
(L) to the Class IA-12 Certificateholders, (1) the Class IA-12
Interest Accrual Amount plus (2) the Class IA-12 Shortfall from
the preceding Distribution Date;
(M) to the Class IA-13 Certificateholders, (1) the Class IA-13
Interest Accrual Amount plus (2) the Class IA-13 Shortfall from
the preceding Distribution Date;
(N) to the Class IA-14 Certificateholders, (1) the Class IA-14
Interest Accrual Amount plus (2) the Class IA-14 Shortfall from
the preceding Distribution Date;
(O) to the Class IA-15 Certificateholders, (1) the Class IA-15
Interest Accrual Amount plus (2) the Class IA-15 Shortfall from
the preceding Distribution Date;
(P) to the Class IA-16 Certificateholders, (1) the Class IA-16
Interest Accrual Amount plus (2) the Class IA-16 Shortfall from
the preceding Distribution Date;
(Q) to the Class IA-17 Certificateholders, (1) the Class IA-17
Interest Accrual Amount plus (2) the Class IA-17 Shortfall from
the preceding Distribution Date;
(R) to the Class IA-18 Certificateholders, (1) the Class IA-18
Interest Accrual Amount plus (2) the Class IA-18 Shortfall from
the preceding Distribution Date;
(S) to the Class IA-19 Certificateholders, (1) the Class IA-19
Interest Accrual Amount plus (2) the Class IA-19 Shortfall from
the preceding Distribution Date;
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(T) to the Class IA-20 Certificateholders, (1) the Class IA-20
Interest Accrual Amount plus (2) the Class IA-20 Shortfall from
the preceding Distribution Date;
(U) to the Class IIA-1 Certificateholders, (1) the Class IIA-1
Interest Accrual Amount plus (2) the Class IIA-1 Shortfall from
the preceding Distribution Date;
(V) to the Class A-X Certificateholders, (1) the Class A-X
Interest Accrual Amount plus (2) the Class A-X Shortfall from the
preceding Distribution Date;
(W) to the Class A-R Certificateholders, (1) the Class A-R
Interest Accrual Amount plus (2) the Class A-R Shortfall from the
preceding Distribution Date;
(ii) concurrently, (A) to the Class IA and Class A-R
Certificateholders, solely from the Available Distribution Amount with
respect to Mortgage Group One up to the Non-PO Class IA Optimal
Principal Amount, allocated among the Class IA and Class A-R
Certificates in accordance with the Non-PO Class IA Principal Payment
Rules and to Class A-P Component One, the Group One Class A-P Amount
and (B) to the Class IIA-1 Certificateholders, solely from the
Available Distribution Amount with respect to Mortgage Group Two, up to
the Non-PO Class IIA Optimal Principal Amount and to Class A-P
Component Two, the Group Two Class A-P Amount;
(iii) to the extent that the Available Distribution Amount with
respect to Mortgage Group One remaining after giving effect to the
distributions in (b)(i) above is insufficient to distribute in full to
the Class IA and Class A-R Certificateholders amounts described in
(b)(ii)(A) above (such shortfall, the "Class IA Deficiency Amount") and
the Available Distribution Amount with respect to Mortgage Group Two
remaining after giving effect to the distributions in (b)(i) above
exceeds the amount required to distribute in full to the Class IIA
Certificateholders the amounts described in (b)(ii)(B) above, such
excess shall be distributed in reduction of the Class IA Deficiency
Amount;
(iv) to the extent that the Available Distribution Amount with
respect to Mortgage Group Two remaining after giving effect to the
distributions in (b)(i) above is insufficient to distribute in full to
the Class IIA-I Certificateholders amounts described in (b)(ii)(B)
above (such shortfall, the "Class IIA Deficiency Amount") and the
Available Distribution Amount with respect to Mortgage Group One
remaining after giving effect to the distributions in (b)(i) above
exceeds the amount required to distribute in full to the Class IA and
Class A-R Certificateholders the amounts described in (b)(ii)(A) above,
such excess shall be distributed in reduction of the Class IIA
Deficiency Amount;
(v) to Class A-P Component One and Class A-P Component Two, the
related Class A-P Shortfall Amount; provided, however, that any amount
distributed pursuant to this Section 6.01(b)(v) shall not cause a
further reduction in the principal balance of Class A-P Component One
or Class A-P Component Two, as applicable;
(vi) If the Available Distribution Amount is insufficient to make
the distributions set forth in (b)(i) above, the Paying Agent shall
distribute the Available Distribution Amount to the Class A
Certificateholders pro rata in accordance with the amounts otherwise
distributable to them pursuant to (b)(i)(A)-(W) above; and
(vii) In addition to the foregoing distributions, the Class IA or
Class IIA Certificates may receive additional principal distributions
on any Distribution Date prior to the Credit Support Depletion Date
under the circumstances specified in (A) and (B) below:
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(A) On any Distribution Date on or after the date on which the
aggregate Outstanding Certificate Principal Balance of the Class
IA Certificates or the Outstanding Certificate Principal Balance
of the Class IIA-1 Certificates has been reduced to zero, all
principal (in excess of that needed to reduce the aggregate
Outstanding Certificate Principal Balance of the Class IA
Certificates or the Outstanding Certificate Principal Balance of
the Class IIA-1 Certificates to zero) on the Mortgage Loans in the
Mortgage Group relating to such Class A Certificates that are no
longer outstanding in accordance with Section 6.01(b)(ii)(A) or
6.01(b)(ii)(B), as applicable, in reduction of the Outstanding
Certificate Principal Balances thereof, provided that on such
Distribution Date either (a) the Aggregate Subordinated Percentage
for such Distribution Date is less than 200% of the initial
Aggregate Subordinate Percentage, or (b) the average outstanding
principal balance of the Mortgage Loans in either Mortgage Group
delinquent 60 days or more over the prior six months, as a
percentage of the corresponding Group One or Group Two
Subordinated Amount, is greater than or equal to 50%. For purposes
of the foregoing, the "Aggregate Subordinated Percentage" for any
Distribution Date is equal to the aggregate Outstanding
Certificate Principal Balance of the Subordinated Certificates
immediately prior to such Distribution Date divided by the
aggregate Scheduled Principal Balance of all of the Mortgage Loans
immediately prior to such Distribution Date.
(B) If on any Distribution Date on which the aggregate
Outstanding Certificate Principal Balance of the Class IA or Class
IIA Certificates would be greater than the related Mortgage Pool
Principal Balance (the "Undercollateralized Group"), after giving
effect to distributions to be made on such Distribution Date, the
portion of the Available Distribution Amount in respect of
principal on the Mortgage Loans in other Mortgage Group (the
"Overcollateralized Group") otherwise allocable to the
Subordinated Certificates will be distributed to the Classes of
Class A Certificates relating to the Undercollateralized Group (in
accordance with the priorities set forth herein), in reduction of
the principal balances thereof, until the aggregate principal
balance of the Certificates included in the Undercollateralized
Group is equal to the related Mortgage Pool Principal Balance.
Moreover, the Available Distribution Amount with respect to the
Overcollateralized Group will be further reduced (after
distributions of interest to the Class A Certificates included in
the Overercollateralized Group) in an amount equal to one month's
interest on the amount by which the Undercollateralized Group is
undercollateralized at 6.75% per annum (if Mortgage Group One is
the Undercollateralized Group) or 6.50% per annum (if Mortgage
Group Two is the Undercollateralized Group), plus any shortfall of
such amounts from prior Distribution Dates; provided, however,
that in no event shall the Available Distribution Amount with
respect to the Overcollateralized Group on any Distribution Date
be reduced by more than the sum of (i) the overcollateralized
amount with respect to the Overcollateralized Group and (ii)
interest thereon at the applicable Remittance Rate. Such amounts
will be distributed to the applicable Classes of Certificates in
the priority of interest payable on such Distribution Date.
(c) Amounts payable on any Distribution Date to the Class M
Certificateholders shall be distributed up to an amount equal to (A) the Class M
Interest Accrual Amount plus (B) the Class M Shortfall from the preceding
Distribution Date plus (C) the portion of the Subordinated Optimal Principal
Amount allocable (pursuant to Section 6.01(e)) to the Class M Certificates plus
(D) any Carry-over Subordinated Principal Amounts with respect to the Class M
Certificates.
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(d) Amounts payable on any Distribution Date to the Class B
Certificateholders pursuant to Section 6.01(a)(iv) shall be distributed in the
following priority:
(1) first, to the Class B-1 Certificateholders, up to an amount
equal to (A) the Class B-1 Interest Accrual Amount plus (B) the Class B-1
Shortfall from the preceding Distribution Date plus (C) the pro rata portion, if
any, of the Subordinated Optimal Principal Amount allocable to the Class B-1
Certificates in accordance with Section 6.01(e) plus (D) any Carry-over
Subordinated Principal Amounts with respect to the Class B-1 Certificates plus
(E) any portion of the Subordinated Optimal Principal Amount allocated to the
Class M Certificates in excess of the Outstanding Certificate Principal Balance
of such Class;
(2) second, to the Class B-2 Certificateholders, up to an amount
equal to (A) the Class B-2 Interest Accrual Amount plus (B) the Class B-2
Shortfall from the preceding Distribution Date plus (C) the pro rata portion, if
any, of the Subordinated Optimal Principal Amount allocable to the Class B-2
Certificates in accordance with Section 6.01(e) plus (D) any Carry-over
Subordinated Principal Amounts with respect to the Class B-2 Certificates plus
(E) any portion of the Subordinated Optimal Principal Amount allocated to the
Class B-1 Certificates in excess of the Outstanding Certificate Principal
Balance of such Class;
(3) third, to the Class B-3 Certificateholders, up to an amount
equal to (A) the Class B-3 Interest Accrual Amount plus (B) the Class B-3
Shortfall from the preceding Distribution Date plus (C) the pro rata portion, if
any, of the Subordinated Optimal Principal Amount allocable to the Class B-3
Certificates in accordance with Section 6.01(e) plus (D) any Carry-over
Subordinated Principal Amounts with respect to the Class B-3 Certificates plus
(E) any portion of the Subordinated Optimal Principal Amount allocated to the
Class B-2 Certificates in excess of the Outstanding Certificate Principal
Balance of such Class;
(4) fourth, to the Class B-4 Certificateholders, up to an amount
equal to (A) the Class B-4 Interest Accrual Amount plus (B) the Class B-4
Shortfall from the preceding Distribution Date plus (C) the pro rata portion, if
any, of the Subordinated Optimal Principal Amount allocable to the Class B-4
Certificates in accordance with Section 6.01(e) plus (D) any Carry-over
Subordinated Principal Amounts with respect to the Class B-4 Certificates plus
(E) any portion of the Subordinated Optimal Principal Amount allocated to the
Class B-3 Certificates in excess of the Outstanding Certificate Principal
Balance of such Class; and
(5) fifth, to the Class B-5 Certificateholders, up to an amount
equal to (A) the Class B-5 Interest Accrual Amount plus (B) the Class B-5
Shortfall from the preceding Distribution Date plus (C) the pro rata portion, if
any, of the Subordinated Optimal Principal Amount allocable to the Class B-5
Certificates in accordance with Section 6.01(e) plus (D) any Carry-over
Subordinated Principal Amounts with respect to the Class B-5 Certificates plus
(E) any portion of the Subordinated Optimal Principal Amount allocated to the
Class B-4 Certificates in excess of the Outstanding Certificate Principal
Balance of such Class.
(e) On each Distribution Date, the Subordinated Optimal Principal
Amount shall be allocated among the Classes of Subordinated Certificates
entitled, pursuant to the next succeeding sentence, to an allocation of
principal on such Distribution Date, pro rata based upon the Outstanding
Certificate Principal Balances of all such Classes so entitled. With respect to
the Subordinated Certificates, on each Distribution Date, principal shall be
distributable to (1) any Class of Subordinated Certificates which has current
Credit Support (before giving effect to any distribution of principal and any
Realized Losses allocable on such Distribution Date) greater than or equal to
the Original Credit Support for such Class; (2) the Class having the lowest
numerical class designation of any outstanding Class of Subordinated
Certificates which does not meet the criteria in (1) above; and (3) the Class
B-5 Certificates if all other outstanding Classes of Subordinated Certificates
meet the criteria in (1) above or if no other Class of Subordinated Certificates
is outstanding; provided, however, that no Class of Subordinated Certificates
shall receive any distributions of principal if any Class of Subordinated
Certificates having a lower numerical class designation than such Class fails to
meet the criteria in (1) above. For purposes of this paragraph, the Class M
Certificates shall be deemed to have a lower numerical class designation than
each Class of Class B Certificates.
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(f) Based upon the information received from the Servicers as provided
in Section 6.02, the Master Servicer shall make all calculations necessary to
make the distributions described in this Section 6.01. All distributions made to
Certificateholders of any Class on each Distribution Date will be made to the
Certificateholders of the respective Class of record on the next preceding
Record Date, except that the final distribution with respect to each Class shall
be made as provided in the forms of Certificates. All distributions made to
Certificateholders shall be based on the Percentage Interest of the Class
represented by their respective Certificates, and shall be made either by
transfer in immediately available funds to the account of such Holder at a bank
or other financial or depository institution having appropriate facilities
therefor, if such Holder has so notified the Trustee or, if a Paying Agent has
been appointed under Section 4.05, the Paying Agent, in writing at least 10
Business Days prior to the first Distribution Date for which distribution by
wire transfer is to be made and such Holder's Certificates of such Class in the
aggregate evidence an original denomination of not less than $5,000,000 or such
Holder holds a 100% Percentage Interest of such Class or, if not, by check
mailed to the address of the Person entitled thereto as it appears on the
Certificate Register, except that the final distribution in retirement of the
Certificates will be made only upon presentation and surrender of the
Certificates at the office specified in the final Distribution Notice. If on any
Determination Date, the Master Servicer determines that there are no Mortgage
Loans outstanding and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Trustee or if a Paying Agent has been
appointed under Section 4.05, the Paying Agent shall promptly send the final
distribution notice to each Certificateholder specifying the manner in which the
final distribution will be made.
Section 6.02. Statements to the Certificateholders.
(a) Not later than noon New York City time two Business Days prior to
each Distribution Date, each Servicer shall send to the Master Servicer, the
Paying Agent and the Trustee (in such format as may be mutually agreed) the
relevant information for purposes of this Section 6.02. Not later than each
Distribution Date, the Master Servicer shall make available on its designee's
website located at xxx.xxxxxxxx.xxx/xxxxxx or send to each Certificateholder,
the Depositor, the Trustee (if other than the Paying Agent), each Servicer, any
co-trustee, and each Rating Agency a statement setting forth the following
information, after giving effect to the distributions to be made by the Paying
Agent pursuant to Section 6.01 on or as of such Distribution Date:
(i) with respect to each Class of Certificates the amount of such
distribution to Holders of such Class allocable to principal;
(ii) with respect to each Class of Certificates the amount of such
distribution to Holders of such Class allocable to interest and the
amount of the Excess Amount Distribution;
(iii) the aggregate amount of any Principal Prepayments and
Repurchase Proceeds included in the distributions to
Certificateholders, in each case both in the aggregate and by Mortgage
Group;
(iv) the aggregate amount of any Advances by each Servicer
pursuant to Section 6.03, both in the aggregate and by Mortgage Group;
81
(v) the number of Outstanding Mortgage Loans and the Mortgage Pool
Principal Balance, both in the aggregate and by Mortgage Group, as of
the close of business as of the end of the related Principal Prepayment
Period;
(vi) the related amount of the Servicing Fees (as adjusted
pursuant to Section 6.05) retained or withdrawn from the Collection
Accounts by each Servicer;
(vii) the related amount of the Master Servicer Fees withdrawn
from the Certificate Account by the Master Servicer;
(viii) the number and aggregate principal amounts of Mortgage
Loans (A) delinquent one Monthly Payment, two Monthly Payments and
three or more Monthly Payments and (B) in foreclosure, in each case, as
of the end of the related Principal Prepayment Period, in each case,
both in the aggregate and by Mortgage Group;
(ix) the number and the principal balance of Mortgage Loans with
respect to any real estate acquired through foreclosure or grant of a
deed in lieu of foreclosure, in each case, both in the aggregate and by
Mortgage Group;
(x) the aggregate amount of all Advances recovered during the
related Due Period;
(xi) with respect to the following Distribution Date, the Class A
Percentage, the Class M Percentage, the Class B Percentage, the Class A
Principal Balance, the Class M Principal Balance, the Class B Principal
Balance, the Non-PO Class A Percentage, the Non-PO Class A Prepayment
Percentage, the Non-PO Class IA Percentage, the Non-PO Class IIA
Percentage, the Non-PO Class IA Prepayment Percentage, the Non-PO Class
IIA Prepayment Percentage, the Class IA Principal Balance, the Class
IIA Principal Balance and the level of Credit Support, if any, with
respect to each class of Subordinated Certificates;
(xii) the aggregate amount of Realized Losses during the related
Due Period and the aggregate amount of Realized Losses since the
Cut-off Date, both in the aggregate and by Mortgage Group;
(xiii) the allocation to each Class of Certificates of any
Realized Losses during the related Due Period;
(xiv) the Outstanding Certificate Principal Balance of each Class
of Certificates after giving effect to the distributions to each Class
on such Distribution Date;
(xv) the amount of any Compensating Interest Shortfalls on such
Distribution Date; and
(xvi) the number of Mortgage Loans with respect to which a
reduction in the Mortgage Rate has occurred pursuant to the Soldiers'
and Sailors' Civil Relief Act of 1940, as amended, as well as the
amount of interest not required to be paid with respect to any such
Mortgage Loans during the related Due Period as a result of such
reductions.
The Paying Agent's responsibility for sending the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information derived from the Servicer.
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Upon reasonable advance notice in writing if required by federal
regulation, the Master Servicer or either Servicer will provide to each
Certificateholder which is a savings and loan association, bank or insurance
company certain reports and access during business hours to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of regulatory
authorities with respect to investment in the Certificates; provided, that the
Master Servicer or either Servicer shall be entitled to be reimbursed by each
such Certificateholder for the Master Servicer's or such Servicer's actual
expenses incurred in providing such reports and access.
(b) The Master Servicer shall cause to be prepared, and the Master
Servicer or the Trustee, as required by applicable law, shall file, any and all
tax returns, information statements or other filings required to be delivered to
Certificateholders and any governmental taxing authority pursuant to any
applicable law with respect to the Trust Fund and the transactions contemplated
hereby (the Master Servicer or the Trustee may, at its option but with the
consent of the other, which consent shall not be unreasonably withheld, appoint
an organization which regularly engages in the preparation and filing of such
documents on a continuous basis for profit and which represents itself to be
expert in such matters) and the Master Servicer shall maintain a record of the
information necessary for the application of Section 860E(e) of the Code and
shall make such information available as required by Section 860D(a)(6) of the
Code; provided, however, that the Master Servicer shall notify the Trustee of
the Trustee's obligation to make any such filings and that any fees of the
organization appointed as provided above shall be paid by the Master Servicer;
and provided further that if an organization is employed, as described above, to
prepare and file any such filings, neither the Trustee nor the Master Servicer
shall be liable for any errors by such organization.
Section 6.03. Advances by the Servicers. If, on any Determination Date,
either Servicer determines that any Monthly Payments with respect to any
Mortgage Loans serviced by it due on the immediately preceding Due Date have not
been received, such Servicer shall, unless it determines in its sole discretion
that such amounts will not be recoverable from Late Collections, Liquidation
Proceeds or otherwise, make an Advance on or before the Business Day prior to
the related Distribution Date in an amount equal to the amount of such
delinquent Monthly Payments, after adjustment of any delinquent interest payment
for its Servicing Fee. For purposes of this Section 6.03, the delinquent Monthly
Payments referred to in the preceding sentence shall be deemed to include an
amount equal to the Monthly Payments that would have been due on Mortgage Loans
which have been foreclosed or otherwise terminated and in connection with which
such Servicer acquired and continues to own the Mortgaged Properties on behalf
of the Certificateholders. If such Servicer makes an Advance, it shall on or
prior to the Servicer Remittance Date for such Distribution Date either (i)
deposit in its Collection Account an amount equal to such Advance, (ii) cause to
be made an appropriate entry in the records of its Collection Account that funds
in such account being held for future distribution or withdrawal have been, as
permitted by this Section 6.03, used by 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 funds being held in a Collection
Account for future distribution to Certificateholders and so used pursuant to
clause (ii) or (iii) above shall be replaced by the related Servicer from its
own funds by deposit into the Collection Account on or before any subsequent
Distribution Date to the extent that funds in such Collection Account on such
Distribution Date shall be less than the amount of payments required to be made
to Certificateholders on such Distribution Date. Any such Advance shall be
included with the distribution to the Certificateholders on the related
Distribution Date. If such Servicer determines not to make a Nonrecoverable
Advance, it shall on the related Determination Date furnish to the Trustee, any
co-trustee, the Master Servicer and each Rating Agency notice of such
determination. Each Servicer shall be entitled to be reimbursed from its
Collection Account for all Advances and Nonrecoverable Advances as provided in
Section 5.09.
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Section 6.04. Allocation of Realized Losses.
(a) Not later than the Business Day following each Determination Date,
each Servicer shall determine (i) the total amount of Realized Losses, if any,
incurred during the related Principal Prepayment Period; (ii) whether and to
what extent such Realized Losses constitute Excess Losses; and (iii) the
respective portions of such Realized Losses allocable to interest and to
principal and forward such information to the Master Servicer in accordance with
Section 6.02.
(b) The principal portion of any Realized Losses other than Excess
Losses shall be allocated as follows: first, to the Class B-5 Certificates until
the Outstanding Certificate Principal Balance of the Class B-5 Certificates has
been reduced to zero; second, to the Class B-4 Certificates until the
Outstanding Certificate Principal Balance of the Class B-4 Certificates has been
reduced to zero; third, to Class B-3 Certificates until the Outstanding
Certificate Principal Balance of the Class B-3 Certificates has been reduced to
zero; fourth, to the Class B-2 Certificates until the Outstanding Certificate
Principal Balance of the Class B-2 Certificates has been reduced to zero; fifth,
to the Class B-1 Certificates until the Outstanding Certificate Principal
Balance of the Class B-1 Certificates has been reduced to zero; sixth, to the
Class M Certificates until the Outstanding Certificate Principal Balance of the
Class M Certificates has been reduced to zero; and seventh, (X) if the Realized
Loss has occurred with respect to a Group One Mortgage Loan, to the Class IA
Certificates on a pro rata basis until the Outstanding Certificate Principal
Balance of the Class IA Certificates has been reduced to zero or (Y) if the
Realized Loss has occurred with respect to a Group Two Mortgage Loan, to the
Class IIA-1 Certificates, until the aggregate Outstanding Certificate Principal
Balance of the Class IIA-1 Certificates has been reduced to zero; provided,
however, that if a Realized Loss occurs with respect to a Discount Mortgage Loan
(a) the amount of such Realized Loss equal to the product of (i) the amount of
such Realized Loss and (ii) the PO Percentage with respect to such Discount
Mortgage Loan will be allocated to Class A-P Certificates (in respect of Class
A-P Component One, if the Realized Loss occurred with respect to a Group One
Mortgage Loan, or in respect of Class A-P Component Two, if the Realized Loss
occurred with respect to a Group Two Mortgage Loan) and (b) the remainder of
such Realized Loss will be allocated as described above. The principal portion
of any Excess Losses shall be allocated without priority among (i) all Classes
of Subordinated Certificates and (ii) (a) the Classes of Class IA Certificates
(if the Excess Loss occurred with respect to a Group One Mortgage Loan), or (b)
the Class IIA-1 Certificates (if the Excess Loss occurred with respect to a
Group Two Mortgage Loan), pro rata based upon their respective Outstanding
Certificate Principal Balances; provided, however, that the applicable PO
Percentage of any Excess Losses on the Discount Mortgage Loans shall be
allocated to Class A-P Certificates (in respect of Class A-P Component One, if
the Excess Loss occurred with respect to a Group One Mortgage Loan, or in
respect of Class A-P Component Two, if the Excess Loss occurred with respect to
a Group Two Mortgage Loan). For purposes of the foregoing sentence, each Class
of Subordinated Certificates will be deemed to have an Outstanding Certificate
Principal Balance (and to accrue interest thereon) equal to the actual
Outstanding Certificate Principal Balance thereof times a fraction, the
numerator of which is the Group One Subordinated Amount (for a loss on a Group
One Mortgage Loan) or the Group Two Subordinated Amount (for a loss on a Group
Two Mortgage Loan), and the denominator of which is the aggregate of the Group
One Subordinated Amount and the Group Two Subordinated Amount.
(c) As used herein, an allocation of a Realized Loss on a "pro rata
basis" among two or more specified Classes of Certificates means an allocation
on a pro rata basis, among the various Classes so specified, to each such Class
of Certificates on the basis of their Outstanding Certificate Principal Balances
(or, in the case of the Class IA-12 Certificates, the lesser of (i) the Original
Certificates Principal Balance of such certificates and (ii) the Outstanding
Certificate Principal Balance of such Certificates) prior to giving effect to
distributions to be made on such Distribution Date. All Realized Losses and all
other losses allocated to a Class of Certificates hereunder will be allocated
among the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
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(d) In the event that a recovery is made with respect to any Realized
Loss, the amount of such recovery shall be distributed on the next Distribution
Date first to the Class A Certificateholders, up to the amount to which such
Realized Loss was allocated to the Class A Certificateholders; second to the
Class M Certificateholders, up to the amount to which such Realized Loss was
allocated to the Class M Certificateholders; third to the Class B-1
Certificateholders, up to the amount to which such Realized Loss was allocated
to the Class B-1 Certificateholders; fourth to the Class B-2 Certificateholders,
up to the amount to which such Realized Loss was allocated to the Class B-2
Certificateholders; fifth to the Class B-3 Certificateholders, up to the amount
to which such Realized Loss was allocated to the Class B-3 Certificateholders;
sixth to the Class B-4 Certificateholders, up to the amount to which such
Realized Loss was allocated to the Class B-4 Certificateholders; and seventh to
the Class B-5 Certificateholders, up to the amount to which such Realized Loss
was allocated to the Class B-5 Certificateholders.
Section 6.05. Compensating Interest; Allocation of Certain Interest
Shortfalls.
(a) (I) With respect to a Principal Prepayment of a CMMC Serviced
Mortgage Loan, the related Servicer shall, on the Servicer Remittance Date
relating to the Principal Prepayment Period during which such Principal
Prepayment occurred, deposit into the Certificate Account from its own funds, as
a reduction of its servicing compensation hereunder, an amount, if any, by which
the amount of the interest that would otherwise accrue with respect to such
Mortgage Loan from the date of prepayment to the Due Date in the related Due
Period at the Net Mortgage Rate exceeds the amount of the interest (adjusted to
the Net Mortgage Rate) collected from the Mortgagor with respect to such period
(such amount, "Compensating Interest"); provided, however, that with respect to
any Distribution Date, such Servicer's obligation to deposit any such amount is
limited to an amount equal to the product of (i) one-twelfth of 0.125% and (ii)
the aggregate Scheduled Principal Balance of the Mortgage Loans serviced by it
with respect to such Distribution Date.
(II) With respect to any Payoff of a WMMSC Serviced Mortgage Loan which
occurs between the fifteenth day of such month and the last day of a month, the
related Servicer shall, on the Servicer Remittance Date relating to the
Principal Prepayment Period during which such Payoff occurred, deposit into the
Certificate Account from its own funds, as a reduction of its servicing
compensation hereunder, an amount equal to Compensating Interest; provided,
however, that with respect to any Distribution Date, such Servicer's obligation
to deposit any such amount is limited to an amount equal to the sum of (A) the
product of (i) one-twelfth of 0.04% and (ii) the aggregate Scheduled Principal
Balance of the Mortgage Loans serviced by it with respect to such Distribution
Date, (B) the aggregate Payoff Earnings with respect to the WMMSC Serviced
Mortgage Loans and (C) the aggregate Payoff Interest with respect to the WMMSC
Serviced Mortgage Loans.
(b) On any Distribution Date, the excess, if any, of (X) Compensating
Interest with respect to such Distribution Date over (Y) the amount deposited in
the Certificate Account pursuant to (a) above for such Distribution Date shall
equal the "Compensating Interest Shortfall" with respect to such Distribution
Date. On any Distribution Date, the Compensating Interest Shortfall shall be
allocated pro rata among the outstanding Classes of Class A, Class M and Class B
Certificates based on the amount of interest to which each such Class would
otherwise be paid on such Distribution Date had there been no such Compensating
Interest Shortfall.
(c) On any Distribution Date, the interest portion of any Realized
Losses ("Realized Loss Interest Shortfall") (other than the interest portion of
Excess Losses) shall be allocated to the Class of Subordinated Certificates then
outstanding having the highest numerical class designation (for this purpose,
the Class M Certificates shall be deemed to have a lower numerical class
designation than each Class of Class B Certificates) or, of no class of
Subordinated Certificates is then outstanding, to the Non-PO Class A
Certificates pro rata among the outstanding Classes of Non-PO Class A
Certificates based on the amount of interest to which each such Class would
otherwise be paid on such Distribution Date had there been no such Realized Loss
Interest Shortfall. On any Distribution Date, the interest portion of any Excess
Losses shall be allocated among all Classes of Certificates pro rata based upon
the amount of interest to which each such Class would otherwise be paid on such
Distribution Date had there been no such Excess Losses allocable to interest.
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Section 6.06. Subordination. The rights of the Class B
Certificateholders to receive distributions in respect of the Class B
Certificates on any Distribution Date shall be subordinated to the rights of the
Class A and Class M Certificateholders to receive distributions in respect of
the Class A and Class M Certificates. The rights of the Class M
Certificateholders to receive distributions in respect of the Class M
Certificates on any Distribution Date shall be subordinated to the rights of the
Class A Certificateholders to receive distributions in respect of the Class A
Certificates. The rights of the Class B-1 Certificateholders to receive
distributions in respect of the Class B-1 Certificates on any Distribution Date
shall be subordinate to the rights of the Class A and Class M Certificateholders
to receive distributions in respect of such Class A and Class M Certificates.
Each Class of Class B Certificates (other than the Class B-1 Certificates) is
subordinated to the Class A Certificates, the Class M Certificates and each
Class of Class B Certificates having a lower numerical class designation than
such Class of Class B Certificates. The rights of each Servicer, as servicer, to
receive funds from the Collection Account, pursuant to Section 5.09, on account
of its Servicing Fee (except as provided in Section 6.05) in respect of each
Mortgage Loan, assumption fees, late payment charges and other mortgagor
charges, reimbursement of Advances and expenses or otherwise and the rights of
the Master Servicer to receive the Master Servicer Fee shall not be subordinated
to the rights of the Class A, Class M or Class B Certificateholders. Amounts
held by the Servicers, the Master Servicer or the Trustee for future
distribution to the Class M or Class B Certificateholders, including, without
limitation, in the Collection Accounts or the Certificate Account, shall not be
distributed in respect of the Class M or Class B Certificates except in
accordance with the terms of this Agreement. The Class B Certificateholders are
deemed to have granted a security interest in such amounts to the Class A and
Class M Certificateholders to secure the rights of the Class A and Class M
Certificateholders to receive distributions in priority over the Class B
Certificateholders. The Class M Certificateholders are deemed to have granted a
security interest in such amounts to the Class A Certificateholders to secure
the rights of the Class A Certificateholders to receive distributions in
priority over the Class A Certificateholders.
Section 6.07. Determination of LIBOR. LIBOR applicable to the
calculation of the Certificate Rates on the Class IA-1, Class IA-11 and Class
IA-13 Certificates for any Interest Accrual Period (other than the initial
Interest Accrual Period) will be determined by the Master Servicer on each Rate
Adjustment Date as follows:
For any Interest Accrual Period other than the first Interest Accrual
Period, the rate for United States dollar deposits for one month which appears
on the Telerate Screen Page 3750 as of 11:00 A.M., London, England time, on the
second LIBOR Business Day prior to the first day of such Interest Accrual
Period. For the first Interest Accrual Period, LIBOR shall equal 3.58% with
respect to the Class IA-1, Class IA-11 and Class IA-13 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 Master
Servicer), the rate will be the Reference Bank Rate. If no such quotations can
be obtained and no Reference Bank Rate is available, LIBOR will be LIBOR
applicable to the preceding Distribution Date.
The establishment of LIBOR by the Master Servicer on any Rate
Adjustment Date and the Master Servicer's subsequent calculation of the
Certificate Rates applicable to the Class IA-1, Class IA-11 and Class IA-13
Certificates for the relevant Interest Accrual Period, in the absence of
manifest error, will be final and binding.
[END OF ARTICLE VI]
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ARTICLE VII
REPORTS TO BE PREPARED BY THE MASTER SERVICER
Section 7.01. Master Servicer and Each Servicer Shall Provide
Information as Reasonably Required. The Master Servicer and each Servicer shall
furnish to the Trustee, during the term of this Agreement, such periodic,
special, or other reports or information, whether or not provided for herein, as
shall be necessary, reasonable, or appropriate in respect to the Trustee, or
otherwise in respect to the purposes of this Agreement, all such reports or
information to be as provided by and in accordance with such applicable
instructions and directions as the Trustee may reasonably require.
Section 7.02. Federal Information Returns and Reports to
Certificateholders.
(a) For Federal income tax purposes, the taxable year of the Trust Fund
shall be a calendar year and the Master Servicer shall maintain or cause the
maintenance of the books of the Trust Fund on the accrual method of accounting.
(b) The Master Servicer shall prepare and file or cause to be filed
with the Internal Revenue Service federal tax or information returns with
respect to each REMIC Pool and the Certificates containing such information and
at the times and in the manner as may be required by the Code or applicable
Treasury regulations, and shall furnish to each Certificateholder at any time
during the calendar year for which such returns or reports are made such
statements or information at the times and in the manner as may be required
thereby. Without limitation on any other requirement of this Section 7.02, the
Master Servicer shall make available the information necessary for the
application of Section 860E(e) of the Code within 60 days of such request. With
respect to the Class A-R Certificate, the Master Servicer shall provide such
information or cause such information to be provided to (i) the Internal Revenue
Service, (ii) the transferor of a Class A-R Certificate to a Disqualified
Organization and (iii) a Pass-Thru Entity that holds a Class A-R Certificate
with one or more record holders that are Disqualified Organizations. The Master
Servicer also shall provide or cause to be provided promptly the above described
computation and information relating to the tax on transfers to Disqualified
Organizations or holdings by Pass-Thru Entities within sixty (60) days after
becoming aware of the transfer to a Disqualified Organization or Pass-Thru
Entity with one or more Disqualified Organization owners, as the case may be. In
addition, except as may be provided in Treasury Regulations, any Person holding
an interest in a Pass-Thru Entity as a nominee for another will, with respect to
such interest, be treated as a Pass-Thru Entity. In connection with the
foregoing, the Master Servicer shall provide the name, address and telephone
number of the person who can be contacted to obtain information required to be
reported to the holders of regular interests in each REMIC Pool (the "REMIC
Reporting Agent") as required by IRS Form 8811. The Trustee hereby designates
the Master Servicer to serve as the REMIC Reporting Agent. The Master Servicer
shall indicate the election to treat each REMIC Pool as a REMIC (which election
shall apply to the taxable period ending December 31, 1998 and each calendar
year thereafter) in such manner as the Code or applicable Treasury regulations
may prescribe. The Trustee shall sign all tax information returns filed pursuant
to this Section 7.02 and any other returns as may be required by the Code, and
in doing so shall rely entirely upon, and shall have no liability for
information provided by, or calculations provided by, each Servicer. The Master
Servicer is hereby designated as the agent of the Holder of the Class A-R
Certificate who shall be the "tax matters person" (within the meaning of Treas.
Reg. "1.860F-4(d) for the Trust Fund. Any Holder of a Class A-R Certificate will
by acceptance thereof so appoint the Master Servicer as agent and
attorney-in-fact for the purpose of acting as tax matters person. In the event
that the Code or applicable Treasury regulations prohibit the Trustee from
signing tax or information returns or other statements, or the Master Servicer
from acting as tax matters person (as an agent or otherwise), the Trustee or the
Master Servicer, as the case may be, shall take whatever action that in its sole
good faith judgment is necessary for the proper filing of such information
returns or for the provision of a tax matters person, including designation of
the Holder of a Class A-R Certificate to sign such returns or act as tax matters
person. Each Holder of a Class A-R Certificate shall be bound by this Section
7.02 by virtue of its acceptance of a Class A-R Certificate.
[END OF ARTICLE VII]
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ARTICLE VIII
THE DEPOSITOR, THE SERVICERS AND THE master servicer
Section 8.01. Indemnification; Third Party Claims.Each Servicer agrees
to indemnify the Depositor, the Master Servicer and the Trustee and hold the
Depositor, the Master Servicer and the Trustee, their officers, directors,
employees and agents harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Depositor, the Master Servicer or the Trustee
may sustain in any way related to failure of such Servicer to perform its duties
and service the Mortgage Loans in compliance with the terms of this Agreement;
provided that no such indemnification shall be required with respect to acts of
a prior Servicer. Each Servicer shall immediately notify the Depositor, the
Master Servicer and the Trustee if a claim is made by a third party with respect
to this Agreement or the Mortgage Loans, assume (with the consent of the
Depositor, the Master Servicer and the Trustee) the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it, the Depositor, the Master Servicer or the Trustee in respect of such
claim. This right to indemnification shall survive the termination of this
Agreement.
Section 8.02. Merger or Consolidation of the Depositor, the Servicers
or the Master Servicer. The Depositor, each Servicer and the Master Servicer
will each keep in full effect its existence, rights and franchises as a
corporation, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement. Neither Servicer will sell all or substantially all of its assets
without the prior written consent of the Depositor and the Trustee which shall
not be unreasonably withheld or delayed.
Any Person into which the Depositor, either Servicer or the Master
Servicer may be merged or consolidated, or to whom the Depositor, either
Servicer or the Master Servicer has sold substantially all of its assets, or any
corporation resulting from any merger, conversion or consolidation to which the
Depositor, either Servicer or the Master Servicer shall be a party, or any
Person succeeding to the business of the Depositor, either Servicer or the
Master Servicer, shall be the successor of the Depositor, either Servicer or the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to either Servicer or the Master Servicer shall satisfy the requirements
of Section 8.05 with respect to the qualifications of a successor to the Master
Servicer.
Notwithstanding anything else in this Section 8.02 and Section 8.04 to
the contrary, either Servicer and the Master Servicer may assign its rights and
delegate its duties and obligations under this Agreement; provided that the
Person accepting such assignment or delegation shall be a Person which is
qualified to service mortgage loans on behalf of FNMA or FHLMC, is approved in
advance in writing by the Trustee and the Depositor, is willing to service the
Mortgage Loans and executes and delivers to the Depositor and the Trustee an
agreement, in form and substance reasonably satisfactory to the Depositor and
the Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by either Servicer or the Master Servicer under this Agreement;
provided further that each Rating Agency's rating of any of the Classes of
Certificates that have been rated in effect immediately prior to such assignment
and delegation will not be qualified or reduced or withdrawn as a result of such
assignment and delegation. In the case of any such assignment and delegation,
the applicable Servicer and the Master Servicer shall be released from its
obligations as Servicer or Master Servicer, as applicable under this Agreement,
except that each Servicer and the Master Servicer shall remain liable for all
liabilities and obligations incurred by it as Servicer or Master Servicer, as
applicable hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the next preceding sentence.
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Section 8.03. Limitation on Liability of the Depositor, the Servicer,
the Master Servicer the Trustee and Others. Neither the Depositor, the Servicer,
the Master Servicer nor any of the directors, officers, employees or agents of
the Depositor, the Servicers or the Master Servicer shall be under any liability
to the Trustee or the Certificateholders for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Servicers or the Master Servicer against any breach of warranties
or representations made herein, or failure to perform its obligations in strict
compliance with this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Depositor, the Master Servicer, the Trustee, and any director, officer,
employee or agent of the Depositor, the Master Servicer or the Trustee 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. Neither the
Depositor, the Master Servicer nor the Trustee shall be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
respective duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may cause it to incur any expenses or
liability; provided, however, that the Depositor, either Servicer, the Master
Servicer or the Trustee may in its discretion (and, in the case of the
Depositor, the Servicers or the Master Servicer, with the consent of the
Trustee, which consent shall not be unreasonably withheld) undertake any such
action which it may deem necessary or desirable with respect to this Agreement
and the rights and duties of the parties hereto. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities payable from the Collection Account and the
Depositor, the applicable Servicer, the Master Servicer or the Trustee shall be
entitled to be reimbursed therefor out of the Collection Account as provided by
Section 4.06; provided that no such right of reimbursement shall exist with
respect to the Servicer when such claim relates to the failure of the Servicer
to service the Mortgage Loans in strict compliance with the terms of this
Agreement or to a breach of a representation or warranty made by the Servicer
hereunder.
Section 8.04. Depositor, Servicers and Master Servicer Not to Resign.
Except as described in Section 8.02, neither the Depositor, either Servicer nor
the Master Servicer shall assign this Agreement or resign from the obligations
and duties hereby imposed on it except by mutual consent of the Depositor, each
Servicer, the Master Servicer and all of the Certificateholders unless the
determination is made that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Depositor, either
Servicer or the Master Servicer. Any such determination permitting the
resignation of the Depositor, either Servicer or the Master Servicer shall be
evidenced by an opinion of independent counsel to such effect delivered to the
Trustee which opinion of counsel shall be in form and substance acceptable to
the Trustee. Upon any such assignment or resignation, the Depositor, either
Servicer or the Master Servicer, as appropriate, shall send notice to all
Certificateholders of the effect of such assignment or resignation upon the then
current rating of the Class of Certificates by each Rating Agency whose rating
on such Class is then in effect. No such resignation shall become effective
until a successor shall have assumed the Depositor's the applicable Servicer's
or the Master Servicer's responsibilities and obligations hereunder in the
manner provided in Section 8.05. Any purported assignment or resignation which
does not comply with the requirements of this Section shall be of no effect.
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Section 8.05. Successor to the Servicers. In connection with the
termination of either Servicer's responsibilities and duties under this
Agreement pursuant to Section 8.04 or 9.01, the Trustee shall (i) succeed to and
assume all of such Servicer's responsibilities, rights, duties and obligations
as Servicer (but not in any other capacity) under this Agreement (except that
the Trustee shall not be obligated to make Advances if prohibited by applicable
law nor to effectuate repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 and except that the Trustee makes no representations and warranties
pursuant to Sections 3.01 and 3.02). Prior to the termination of such Servicer's
responsibilities, duties and liabilities under this Agreement, the Trustee may
appoint a successor having a net worth of not less than $15,000,000 and which is
a FNMA or FHLMC approved seller/servicer in good standing and which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of such Servicer under this Agreement, except as aforesaid, if the
Trustee receives a letter from each Rating Agency that such appointment would
not result in a reduction or withdrawal of the current rating of any Class of
Certificates that is rated by a Rating Agency. Any co-trustee appointed pursuant
to Section 10.10 for purposes of this Section 8.05 shall have an obligation to
make Advances pursuant to Section 6.03 during such time as the Trustee is a
Servicer, which obligation shall be joint and several with that of the Trustee
as Servicer. If the Trustee has become the successor to a Servicer in accordance
with this Section or Section 9.03, then notwithstanding the above, the Trustee
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 housing and home finance institution having a net worth of not less
than $15,000,000 and which is a FNMA or FHLMC approved seller/servicer in good
standing as the successor to a Servicer hereunder in the assumption of all of
the responsibilities, duties or liabilities of a Servicer hereunder. In
connection with any such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree or such court shall determine;
provided, however, that no such compensation shall be in excess of that
permitted under this Agreement without the consent of all of the
Certificateholders. If either Servicer's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to Section 8.02,
8.04 or 9.01, such Servicer shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such termination until
the effective date thereof with the same degree of diligence and prudence which
it is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor or the Trust Fund. The resignation or removal of a Servicer
pursuant to Section 8.02, 8.04 or 9.01 shall not become effective until a
successor shall be appointed pursuant to this Section and shall in no event
relieve such Servicer of liability for breach of the representations and
warranties made pursuant to Section 3.03.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer it is succeeding and to the Trustee an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of such Servicer, with like effect as if originally named as a party
to this Agreement and the Certificates. Any termination or resignation of either
Servicer or this Agreement pursuant to Section 8.02, 8.04, 9.01 or 11.01 shall
not affect any claims that the Trustee may have against such Servicer for events
or actions taken or not taken by such Servicer arising prior to any such
termination or resignation.
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A Servicer succeeded hereunder shall timely deliver to the successor
the funds that were, or were required to be, in its Collection Account and the
Escrow Account, if any, and all Mortgage Files and related documents, statements
and recordkeeping held by it hereunder and such Servicer shall account for all
funds and shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and definitely vest and confirm in the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of such Servicer.
Upon a successor's acceptance of appointment as such, the succeeded
Servicer shall notify, in writing, the Trustee, the Master Servicer, the
Certificateholders and each Rating Agency of such appointment.
Section 8.06. Maintenance of Ratings. The Servicers shall cooperate
with the Depositor and the Master Servicer and take any action that may be
reasonably necessary to maintain the current rating or ratings on the
Certificates.
Section 8.07. Compensation of the Master Servicer. The Master Servicer
shall be entitled to receive the Master Servicer Fee as compensation for
services rendered by the Master Servicer under this Agreement. The Master
Servicer shall pay itself such Master Servicer Fee monthly from amounts on
deposit in the Certificate Account.
Section 8.08. Certain Matters Affecting the Master Servicer. Except as
otherwise provided in Section 8.03:
(a) The Master Servicer may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Master Servicer may consult with counsel, and any advice 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;
(c) Neither the Master Servicer nor any of its directors, officers,
employees or agents shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it or any of them to be authorized
or within the discretion or rights or powers conferred upon the Master Servicer
by this Agreement;
(d) Nothing in this Agreement shall be construed to require the Master
Servicer to expend its own funds; and
(e) The Master Servicer undertakes to, and is empowered to, perform
such duties and only such duties as are specifically set forth in this
Agreement.
[END OF ARTICLE VIII]
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ARTICLE IX
DEFAULT
Section 9.01. Events of Default. If one or more of the following Events
of Default shall occur and be continuing, that is to say:
(i) any failure by either Servicer to remit any payment required
to be made or distributed under the terms of this Agreement which
continues unremedied for a period of three (3) Business Days after the
date upon which written notice of such failure, requiring the same to
be remedied, shall have been given to such Servicer by the Trustee, the
Master Servicer or the Depositor or to such Servicer, the Trustee, the
Master Servicer and the Depositor by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25%; or
(ii) a breach by either Servicer in a material respect of any
representation or warranty set forth in Section 3.02, or failure on the
part of such Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of such
Servicer set forth in this Agreement, which continues unremedied for a
period of 60 days after the date on which written notice of such breach
or failure, requiring the same to be remedied, shall have been given to
such Servicer by the Trustee, the Master Servicer or the Depositor or
to such Servicer, the Trustee, the Master Servicer and the Depositor by
the Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; or
(iii) either Servicer shall notify the Trustee in writing that it
is unable to make an Advance required to be made in accordance with
Section 6.03; or;
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against either Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(v) either Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Servicer or of or relating to all or
substantially all of such Servicer's property; or
(vi) either Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations.
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Trustee shall notify the Certificateholders, the Master
Servicer and each Rating Agency of such Event of Default. The Trustee may, and
at the written direction of the Holders of Certificates evidencing Percentage
Interests aggregating more than 50%, shall, by notice in writing to the
defaulting Servicer, terminate all the rights and obligations of such Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof.
On or after the receipt by either Servicer of such written notice, all authority
and power of such Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 8.05. Upon written request from the Trustee, such
Servicer shall prepare, execute and deliver, any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at such Servicer's sole expense. Each Servicer agrees to cooperate
with the Trustee and any co-trustee in effecting the termination of such
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited or should have been credited by such
Servicer to the Collection Account or Escrow Account or thereafter received with
respect to the Mortgage Loans. The Trustee will have no obligation to take any
action or institute, conduct or defend any litigation under this Agreement at
the request, order or direction of any of the Holders of Certificates unless
such Certificateholders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which the Trustee may
incur.
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Section 9.02. Waiver of Defaults. The Trustee may waive any default by
either Servicer in the performance of such Servicer's obligations hereunder and
its consequences, except that a default in the making of any required
distribution on any of the Certificates may only be waived by the holders of a
majority of the Percentage Interests of the affected Certificateholders. Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 9.03. Trustee to Act; Appointment of Successor. On and after
the time either Servicer receives a notice of termination pursuant to Section
9.01, the Trustee or its appointed agent shall be the successor in all respects
to the Servicer to the extent provided in Section 8.05.
Section 9.04. Notification to Certificateholders and the Rating
Agencies.
(a) Upon any such termination pursuant to Section 9.01, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within sixty (60) days of a Responsible Officer of the Trustee
having received written notice of the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
[END OF ARTICLE IX]
ARTICLE X
CONCERNING THE TRUSTEE
Section 10.01. Duties of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing of all Events of Default which may
have occurred, undertakes to, and is empowered to, perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee as enumerated in this Agreement shall not be construed as a
duty; provided that in case an Event of Default has occurred (which has not been
cured), the Trustee shall exercise such of the rights and powers vested in it by
this Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of such
man's own affairs.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, and, if the Trustee is acting as the
successor Servicer pursuant to Section 8.05 or 9.03, its own willful misconduct
with respect to its servicing obligations; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
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(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class
holding Certificates which evidence, as to such Class, Percentage
Interests aggregating not less than 25% as to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement.
Section 10.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 10.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) The Trustee may consult with counsel, and any advice 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;
(c) 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 (which has not been cured), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of such man's own affairs;
(d) Neither the Trustee nor any of its directors, officers, employees
or agents shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it or any of them to be authorized or within
the discretion or rights or powers conferred upon the Trustee by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less than 25%
(in the case of conflicting requests by two or more 25% or greater Percentage
Interests, the Trustee shall act in accordance with the first such request);
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 such proceeding. The reasonable expense of every such
examination shall be paid by the Servicers, if an Event of Default shall have
occurred and is continuing, and otherwise by the Certificateholder requesting
the investigation;
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(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
subcontractors or attorneys; and
(g) Nothing in this Agreement shall be construed to require the Trustee
(acting in its capacity as Trustee) to expend its own funds.
Section 10.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication of the Certificates by an authorized signatory of the Trustee)
shall be taken as the statements of the Depositor or the Servicers, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations or warranties as to the validity or sufficiency
of this Agreement or of the Certificates (except that (except as set forth
herein) the Certificates shall be duly and validly executed and authenticated by
it) or of any Mortgage Loan or related document. The Trustee shall not be
accountable for the use or application by the Depositor, the Master Servicer or
the Servicers of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor,
the Master Servicer or the Servicers in respect of the Mortgage Loans or
deposited in or withdrawn from the Collection Account by the Depositor, the
Master Servicer or the Servicer. The Trustee, in its capacity as trustee
hereunder, shall have no responsibility for the timeliness or the amount of
payments made by the Paying Agent to the Certificateholders.
Section 10.04. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
Section 10.05. Fees and Expenses. The Master Servicer covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trust hereby created and
in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Master Servicer will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ, and the expenses
incurred by the Trustee in connection with the appointment of an office or
agency pursuant to Section 10.11) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. Notwithstanding anything
to the contrary in this Agreement, this Section shall survive the termination of
this Agreement.
Section 10.06. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be an entity having its principal office in a state
and city acceptable to the Depositor and organized and doing business under the
laws of such state or the United States of America, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. The Trustee shall not be an Affiliate of either Seller, the Master
Servicer or the Depositor. If such entity publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 10.07.
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Section 10.07. Resignation and Removal of the Trustee. The Trustee, and
any co-trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Master Servicer,
the Servicers and each Rating Agency. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee or co-trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee;
provided that such appointment does not result in a reduction or withdrawal of
the rating of any of the Classes of Certificates that have been rated. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time, the Trustee shall cease to be eligible in accordance
with the provisions of Section 10.06 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The Holders of Certificates evidencing in the aggregate more than 50%
of Percentage Interest may at any time remove the Trustee and appoint a
successor trustee by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to the
Trustee so removed and one complete set to the successor so appointed.
Any resignation or removal of the Trustee or any resignation of any
co-trustee and appointment of a successor trustee or co-trustee pursuant to any
of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 10.08, or upon
acceptance of appointment by a co-trustee, as applicable, unless with respect to
a co-trustee, the Trustee receives written notice from each Rating Agency that
the failure to appoint a successor co-trustee would not result in a withdrawal
or reduction of the rating of any of the Classes of Certificates that have been
rated, in which case the resignation of any co-trustee shall be effective upon
receipt of such written notice. Any co-trustee may not be removed unless the
Depositor and the Trustee each receive written notice from each Rating Agency
that such removal would not result in a withdrawal or reduction of the rating of
any of the Classes of Certificates that have been rated, in which case the
removal of any co-trustee shall be effective upon receipt of such written
notice.
Section 10.08. Successor Trustee. Any successor trustee appointed as
provided in Section 10.07 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective, and such successor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder, and the Depositor, the Master Servicer, the Servicers and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
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No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 10.06. Prior to the appointment of any
successor trustee becoming effective, the Depositor shall have received from
each Rating Agency written confirmation that such appointment would not result
in a reduction of the rating of the Class A or Class M Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register, to the Servicers, any Sub-Servicer and to each Rating
Agency. If the Depositor fails to mail such notice within ten (10) days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Depositor.
Section 10.09. Merger or Consolidation of Trustee. Any entity into
which the Trustee may be merged or converted or with which it may be
consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under the provisions of Section
10.06, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10. Appointment of Co-Trustee or Separate Trustee. At any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Fund or property securing the same may at the time
be located, the Depositor and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, of any part of the Trust Fund, and to vest in such Person or Persons,
in such capacity, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 10.10, such powers, duties,
obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable. If the Depositor shall not have joined in such
appointment within fifteen (15) days after the receipt by it of a request so to
do, or in case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 10.06, hereunder, and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 10.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 10.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly and severally, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to either of the Servicers hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article X. 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.
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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.
Section 10.11. Appointment of Office or Agency. The Trustee may appoint
an office or agency in The City of New York where Certificates may be
surrendered for registration of transfer or exchange. The Trustee will maintain
an office at the address stated in Section 12.07 hereof where notices and
demands to or upon the Trustee in respect of the Certificates may be served.
[END OF ARTICLE X]
ARTICLE XI
TERMINATION
Section 11.01. Termination. The respective obligations and
responsibilities of the Depositor, the Servicers, the Master Servicer (except
the duty to pay the Trustee's fees and expenses and indemnification hereunder)
and the Trustee shall terminate upon (i) the later of the final payment or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan or
the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due hereunder;
or (ii) at the option of WMMSC (or any successor thereto under this Agreement),
on any Distribution Date which occurs in the month next following a Due Date on
which the aggregate unpaid Principal Balance of all Outstanding Mortgage Loans
is less than 10% of the aggregate unpaid Principal Balance of the Mortgage Loans
on the Cut-off Date, so long as WMMSC (or any such successor) deposits or causes
to be deposited in the Collection Account during the Principal Prepayment Period
related to such Distribution Date (and provides notice to the Trustee and the
Master Servicer of its intention to so deposit on or before 20th day of such
Principal Prepayment Period) an amount equal to the greater of (A) the Purchase
Price for each Outstanding Mortgage Loan, less any unreimbursed Advances made
with respect to any Mortgage Loan (which amount shall offset completely any
unreimbursed Advances for which either Servicer is otherwise entitled to
reimbursement), and, with respect to all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, an amount equal to the fair market
value of such property, as determined by an appraisal to be conducted by an
appraiser selected by the Trustee, less unreimbursed Advances made with respect
to any Mortgage Loan with respect to which property has been acquired and (B)
the aggregate Outstanding Principal Balance of the Class A, Class M, Class B-1,
and Class B-2 Certificates plus any accrued and unpaid interest therein at the
Remittance Rate; provided, however, that prior to taking such action under this
Section 11.01, WMMSC shall provide notice of its intention to repurchase the
Mortgage Loans to CMMC and CMMC will have the option, but not the obligation to
repurchase the CMMC Serviced Mortgage Loans, as described above; provided,
further, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof. Notwithstanding the foregoing, a termination
may be effected by the making of such optional repurchases only if the
termination of each REMIC Pool satisfies the requirement for a "qualified
liquidation" of each REMIC Pool within the meaning of Section 860F(a)(4) of the
Code and that the purchases of the Outstanding Mortgage Loans pursuant to this
Section 11.01 will not constitute "prohibited transactions" within the meaning
of Section 860F(a)(2) of the Code.
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Notice of any termination, specifying the Distribution Date upon which
all Certificateholders may surrender their Certificates to the Trustee or, if a
Paying Agent has been appointed pursuant to Section 4.05, the Paying Agent for
payment and cancellation, shall be given promptly by the Trustee or, if a Paying
Agent has been appointed under Section 4.05, the Paying Agent, (upon direction
by the Depositor ten (10) days prior to the date such notice is to be mailed) by
signed letter to Certificateholders and each Rating Agency mailed no later than
the 25th day of the month preceding the month of such final distribution
specifying (i) the Distribution Date upon which final payment on the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee or, if a Paying Agent has been appointed under
Section 4.05, the Paying Agent, therein designated and (ii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the office or
agency of the Trustee or, if a Paying Agent has been appointed under Section
4.05, the Paying Agent, therein specified. The Servicers shall indicate the date
of adoption of the plan of qualified liquidation in a statement attached to the
final federal income tax return of each REMIC Pool. After giving such notice,
the Trustee or if a Paying Agent has been appointed under Section 4.05, the
Paying Agent shall not register the transfer or exchange of any Certificates. If
such notice is given in connection with WMMSC's election to purchase the
Outstanding Mortgage Loans, WMMSC shall deposit in its Collection Account after
adoption of the plan during the applicable Principal Prepayment Period an amount
equal to the purchase price as determined as provided in clause (ii) of the
preceding paragraph and on the Distribution Date on which such termination is to
occur, Certificateholders will be entitled to the amount of such purchase price
but not amounts in excess thereof, all as provided herein. Upon presentation and
surrender of the Certificates, the Master Servicer shall cause to be distributed
to Certificateholders an amount equal to (a) the amount otherwise distributable
on such Distribution Date, if not in connection with a purchase; or (b) if WMMSC
elected to so purchase, the purchase price determined as provided in clause (ii)
of the preceding paragraph. Following such final deposit the Trustee shall
promptly release to the applicable Servicer the Mortgage Files for the remaining
Mortgage Loans, and the Trustee shall execute all assignments, endorsements and
other instruments necessary to effectuate such transfer and shall have no
further responsibility with regard to said Mortgage Files.
If all of the Certificateholders shall not surrender their Certificates
for cancellation within 3 months after the time specified in the above-mentioned
written notice, at the close of the 90 day period beginning after the written
notice is given, each remaining Certificateholder will be credited with an
amount that would have been otherwise distributed to such Certificateholder, and
the Trustee or, if a Paying Agent has been appointed under Section 4.05, the
Paying Agent, shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within three (3) months after
the second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee or, if a Paying Agent has been appointed under Section
4.05, the Paying Agent, shall appoint an agent to take appropriate and
reasonable steps to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain in the Trust Fund hereunder.
[END OF ARTICLE XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. 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.
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Section 12.02. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding-up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
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 Person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and the Holders of Certificates
of any Class evidencing in the aggregate not less than 25% of the Percentage
Interests of such Class shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
(in the case of conflicting requests by two or more 25% or greater Percentage
Interests, the Trustee shall act in accordance with the first such request) and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for sixty (60) days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, 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 Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 12.03. Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Servicers and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, to ensure continuing treatment of each REMIC Pool as a
REMIC to avoid or minimize the risk of imposition of any tax on either REMIC
Pool pursuant to the Code, or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such actions
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder of a Class having an
Outstanding Certificate Principal Balance of greater than zero or cause either
REMIC Pool to fail to qualify as a REMIC.
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This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Servicers and the Trustee with the consent of the
Holders of Certificates evidencing in the aggregate not less than 66-2/3% of the
Percentage Interest of each Class of Certificates having an Outstanding
Certificate Principal Balance greater than zero and affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentage of Certificates of any class the Holders of which are
required to consent to any such amendment or (iii) change the percentage
specified in clause (ii) of the first paragraph of Section 11.01, without the
consent of the Holders of all Certificates of such Class then outstanding.
Notwithstanding anything to the contrary in this Agreement, this
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee with the consent of Certificateholders evidencing not less than
66-2/3% of the interests held by parties other than the Depositor, its
Affiliates or its agents, for the purposes of significantly changing the
Permitted Activities of the Trust.
Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 12.03 to approve the particular form of any proposed amendment but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 12.04. Counterparts. |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 12.05. Duration of Agreement. This Agreement shall continue in
existence and effect until terminated as herein provided.
Section 12.06. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 12.07. Notices All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Depositor, Chase Mortgage Finance
Corporation, 000 Xxxx Xxxxxxxxx, 0xx Xxxxx Xxxxx, Xxxxxxxxx Lake, New Jersey
07675, Attention: Structured Finance, (ii) in the case of Chase Manhattan
Mortgage Corporation, as servicer, 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000,
Attention: Investor Accounting (with a copy to Chase Manhattan Mortgage
Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention:
Structured Finance), (iii) in the case of Washington Mutual Mortgage Securities
Corp., as servicer, 00 Xxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000,
Attention: Master Servicing, with a copy to Washington Mutual Legal Department,
1201 Third Avenue, WMT 1706, Xxxxxxx, XX 00000, (iv) in the case of the Master
Servicer, to the address specified above for Chase Manhattan Mortgage
Corporation with a copy to The Chase Manhattan Bank, 000 X. 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 0000, Attention: Global Trust Services), (v) in the case of the
Trustee, Citibank, N.A., 111 Wall Street, 0xx Xxxxx, Xxxx 0, Xxx Xxxx, Xxx Xxxx
00000, Attention: Structured Finance Department, (vi) in the case of Moody's,
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
(vii) in the case of S & P, Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
(viii) in the case of any of the foregoing persons, such other addresses as may
hereafter be furnished by any such persons to the other parties to this
Agreement.
101
Section 12.08. Further Assurances. The Seller and each Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements and the preparation for execution by
the Trustee of any continuation statements relating to the Co-op Loans for
filing under the provisions of the Uniform Commercial Code as in effect in the
jurisdiction in which the Underlying Mortgaged Property related to the affected
Co-op Loan is located. The Trustee agrees that it shall promptly execute and
redeliver to the Seller or the Servicer for filing any such continuation
statement so prepared by the Seller relating to the Co-op Loans.
[END OF ARTICLE XII]
102
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Servicers
and the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CHASE MORTGAGE FINANCE
CORPORATION
By:_____________________________
Name:
Title:
CHASE MANHATTAN MORTGAGE
CORPORATION
By:_____________________________
Name:
Title:
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.
By:_____________________________
Name:
Title:
CITIBANK, N.A.,
as Trustee
By:_____________________________
Name:
Title:
EXHIBIT A-1
MORTGAGE LOAN SCHEDULE
(CMMC SERVICED MORTGAGE LOANS)
[INTENTIONALLY OMITTED]
A-1-1
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE
(WMMSC SERVICED MORTGAGE LOANS)
[INTENTIONALLY OMITTED]
A-2-1
EXHIBIT B
CONTENTS OF MORTGAGE FILE
(i) With respect to each Mortgage Loan which is not a Co-op Loan:
(A) (I) Original Mortgage Note (or a lost note affidavit (including a
copy of the original Mortgage Note)) or (II) original consolidation, extension
and modification agreement (or a lost note affidavit (including a copy of the
original consolidation, extension and modification agreement), in either case
endorsed, "Pay to the order of Citibank, N.A., as trustee, without recourse."
(B) The original Mortgage (including all riders thereto) with evidence
of recording thereon, or a copy thereof certified by the public recording office
in which such mortgage has been recorded or, if the original Mortgage has not
been returned from the applicable public recording office, a true certified
copy, certified by the Seller, of the original Mortgage together with a
certificate of the Seller certifying that the original Mortgage has been
delivered for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located.
(C) The original Assignment of Mortgage to "Citibank, N.A., as
trustee," which assignment shall be in form and substance acceptable for
recording, or a copy certified by the Seller as a true and correct copy of the
original Assignment of Mortgage which has been sent for recordation. Subject to
the foregoing, such assignments may, if permitted by law, be by blanket
assignments for Mortgage Loans covering Mortgaged Properties situated within the
same county. If the Assignment of Mortgage is in blanket form, a copy of the
Assignment of Mortgage shall be included in the related individual Mortgage
File.
(D) The original policy of title insurance, including riders and
endorsements thereto, or if the policy has not yet been issued, a written
commitment or interim binder or preliminary report of title issued by the title
insurance or escrow company.
(E) Originals of all recorded intervening Assignments of Mortgage, or
copies thereof, certified by the public recording office in which such
Assignments or Mortgage have been recorded showing a complete chain of title
from the originator to the Depositor, with evidence of recording, thereon, or a
copy thereof certified by the public recording office in which such Assignment
of Mortgage has been recorded or, if the original Assignment of Mortgage has not
been returned from the applicable public recording office, a true certified
copy, certified by the Seller of the original Assignment of Mortgage together
with a certificate of the Seller certifying that the original Assignment of
Mortgage has been delivered for recording in the appropriate public recording
office of the jurisdiction in which the Mortgaged Property is located.
(F) Originals, or copies thereof certified by the public recording
office in which such documents have been recorded, of each assumption,
extension, modification, written assurance or substitution agreements, if
applicable, or if the original of such document has not been returned from the
applicable public recording office, a true certified copy, certified by the
Seller, of such original document together with certificate of Seller certifying
the original of such document has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged Property
is located.
(G) If the Mortgage Note or Mortgage or any other material document or
instrument relating to the Mortgage Loan has been signed by a Person on behalf
of the Mortgagor, the original power of attorney or other instrument that
authorized and empowered such Person to sign bearing evidence that such
instrument has been recorded, if so required in the appropriate jurisdiction
where the Mortgaged Property is located (or, in lieu thereof, a duplicate or
conformed copy of such instrument, together with a certificate of receipt from
the recording office, certifying that such copy represents a true and complete
copy of the original and that such original has been or is currently submitted
to be recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located), or if the original power
of attorney or other such instrument has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located.
B-1
(ii) With respect to each Co-op Loan:
(i) With respect to each Co-op Loan:
(A) (I) The original Mortgage Note (or a lost note affidavit
(including a copy of the original Mortgage Note)) or (II) original
consolidation, extension and modification agreement (or a lost note
affidavit (including a copy of the original consolidation, extension
and modification agreement)), in either case endorsed "Pay to the order
of Citibank, N.A., as trustee, without recourse."
(B) The original Mortgage entered into by the Mortgagor with
respect to such Co-op Loan.
(C) The original Assignment of Mortgage to "Citibank, N.A. as
trustee."
(D) Original assignments of Mortgage showing a complete chain of
assignment from the originator of the related Co-op Loan to the Seller.
(E) Original Form UCC-1 and any continuation statements with
evidence of filing thereon entered into by the Mortgagor with respect
to such Co-op Loan.
(F) Form UCC-3 (or copy thereof) by the applicable Mortgage Loan
Seller or its agent assigning the security interest covered by such
Form UCC-1 to "Citibank, N.A. as trustee," together with all Forms
UCC-3 (or copies thereof) showing a complete chain of assignment from
the originator of the related Co-op Loan to the Seller, with evidence
of recording thereon.
(G) Stock certificate representing the stock allocated to the
related dwelling unit in the related residential cooperative housing
corporation and pledged by the related Mortgagor to the originator of
such Co-op Loan with a stock power in blank attached.
(H) Original proprietary lease.
(I) Original assignment of proprietary lease, to the Trustee, and
all intervening assignments thereof.
(J) Original recognition agreement of the interests of the
mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan.
B-2
EXHIBIT C
FORM OF CLASS A CERTIFICATE
SOLELY FOR 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
MORTGAGE FINANCE CORPORATION ("CMFC"), THE SERVICERS OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY CMFC, CHASE MANHATTAN MORTGAGE CORPORATION, THE TRUSTEE OR BY ANY OF
THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
CLASS IA-1 CERTIFICATE
Number 01-S5-IA-1-1 Original Denomination $____________
Cut-off Date: September 1, 2001 Final Scheduled
Distribution Date: ________ __, 2031
First Distribution Date: Aggregate Original Principal
October 25, 2001 Balance of all Class IA-1
Certificates: $____________
Certificate Rate: ______ CUSIP: 16162T __ _
C-1
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
Series 2001-S5
evidencing an ownership interest in distributions allocable to the Class IA-1
Certificates with respect to a pool of conventional one- to four-family mortgage
loans formed and sold by
CHASE MORTGAGE FINANCE CORPORATION
Unless this Certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Original
Denomination of all Class IA-1 Certificates) in certain distributions with
respect to a pool of conventional one- to four-family first lien mortgage loans
(the "Mortgage Loans") formed and sold by Chase Mortgage Finance Corporation
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Chase Manhattan Mortgage Corporation ("CMMC") and
Washington Mutual Mortgage Securities Corp. ("WMMSC") (each a "Servicer" and
collectively, the "Servicers") and are secured by first mortgages on Mortgaged
Properties. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement (the "Agreement"), dated as of September 1, 2001 among the Depositor,
the Servicers, CMMC, as master servicer and Citibank, N.A., as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
Class IA-1 (the "Class IA-1 Certificates") and 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 Agreement such Holder is bound. Also issued under the Agreement are
Certificates designated as Multi-Class Mortgage Pass-Through Certificates,
Series 2001-S5, Class M Certificates (the "Class M Certificates") and Class B
Certificates (the "Class B Certificates"). The Class A Certificates, the Class M
Certificates and the Class B Certificates are collectively referred to herein as
the "Certificates."
C-2
Pursuant to the terms of the Agreement, the Trustee, or, if a Paying
Agent has been appointed under Section 4.05 of the Agreement thereof, the Paying
Agent, will distribute from funds in the Certificate Account the amount as
described on the reverse hereof 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 October 25, 2001. Such distributions will be
made to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month preceding the month in which such
payment is made, or if such last day is not a Business Day, the Business Day
immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed
to the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, or by wire transfer in immediately available
funds to the account of such Holder at a bank or other financial or depository
institution having appropriate facilities therefor, if such Holder has so
notified the Paying Agent in writing at least 10 Business Days prior to the
first Distribution Date for which distribution by wire transfer is to be made,
and such Holder's Certificates evidence an aggregate original denomination of
not less than $5,000,000 or such Holder holds a 100% Percentage Interest of such
Class. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, or agency
appointed by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement the Paying Agent, for the purpose and specified in such
notice of final distribution.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like class and
dated the date of authentication by the Authenticating Agent. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, for that purpose and specified
in such notice of final distribution.
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.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-3
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed.
Dated: September __, 2001 CHASE MORTGAGE FINANCE
CORPORATION
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IA-1
Certificates referred to
in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK
as Authenticating Agent
By:______________________________
Authorized Signatory
C-4
REVERSE OF CERTIFICATE
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2001-S5
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
issued in twenty-four Classes of Class A Certificates, one Class of Class M
Certificates and five Classes of Class B Certificates, each evidencing an
interest in certain distributions with respect to a pool of fixed rate one- to
four-family first lien Mortgage Loans formed and sold by the Depositor and
certain other property conveyed by the Depositor to the Trustee. The Class A
Certificates evidence in the aggregate the Class A Percentage of distributions
relating to repayments of principal and interest on such Mortgage Loans. The
Class M Certificates evidence in the aggregate the Class M Percentage of
distributions relating to repayments of principal and interest on such Mortgage
Loans. The Class B Certificates evidence in the aggregate the Class B Percentage
of distributions relating to repayments of principal and interest on such
Mortgage Loans.
Following the initial issuance of the Certificates, the Principal
Balance of this Certificate will be different from the Original Denomination
shown above. Anyone acquiring this Certificate may ascertain its current
Principal Balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund and certain amounts resulting from credit
enhancements for payment hereunder and that the Trustee is not liable to the
Holders 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 hereby, and the rights,
duties and immunities of the Trustee.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of any Paying Agent appointed under the
Agreement, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee (or any Paying Agent, as the case
may be) will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like Class and
dated the date of authentication by the Authenticating Agent.
No service charge will be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Certificate. Prior to
due presentation of a Certificate for registration of transfer, the Depositor,
the Servicers and the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate and the Percentage Interest in
the Trust Fund evidenced thereby for the purpose of receiving distributions
pursuant to the Agreement and for all other purposes whatsoever, and neither the
Depositor, the Servicers, the Paying Agent nor the Trustee will be affected by
notice to the contrary.
C-5
The Agreement may be amended from time to time by the Depositor, the
Servicers and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC (as herein after
defined), or to make any other provisions with respect to matters or questions
arising under the Agreement which are not materially inconsistent with the
provisions of the Agreement, provided that such action does not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or cause either REMIC Pool to fail to qualify as a REMIC.
The Agreement may also be amended from time to time by the Depositor,
the Servicers and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) reduce the aforesaid
percentage of Certificates of any Class the Holders of which are required to
consent to any such amendment or (iii) change the percentage specified in clause
(ii) of the first paragraph of Section 11.01 of the Agreement, without the
consent of the Holders of all Certificates of such Class then outstanding.
The Depositor intends to cause an election to be made to treat the
segregated pool comprising the assets of the Trust Fund (the "Subsidiary REMIC")
as a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes. The Depositor intends to cause an election to be made to treat the
pool of assets represented by the "regular interests" in the Subsidiary REMIC as
a separate REMIC (the "Master REMIC"). The Class A Certificates, the Class M
Certificates and the Class B Certificates (other than the Class A-R Certificate)
will constitute "regular interests" in the Master REMIC. The Class A-R
Certificate will represent the sole class of "residual interests" in each of the
Subsidiary REMIC and the Master REMIC.
The respective obligations and responsibilities of the Depositor, the
Servicers (except the duty to pay the Trustee's fees and expenses and
indemnification hereunder) and the Trustee shall terminate upon (i) the later of
the final payment or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and the
remittance of all funds due hereunder; or (ii) at the option of WMMSC, on any
Distribution Date which occurs in the month next following a Due Date on which
the aggregate unpaid Principal Balance of all Outstanding Mortgage Loans is less
than 10% of the aggregate unpaid Principal Balance of the Mortgage Loans on the
Cut-off Date, so long as WMMSC deposits or causes to be deposited in the
Collection Account during the Principal Prepayment Period related to such
Distribution Date (and provides notice to the Trustee of its intention to so
deposit on or before the 20th day of such Principal Prepayment Period) an amount
equal to the greater of (A) the Purchase Price for each Outstanding Mortgage
C-6
Loan, less any unreimbursed Advances made with respect to any Mortgage Loan
(which amount shall offset completely any unreimbursed Advances for which the
Servicers are otherwise entitled to reimbursement), and, with respect to all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
an amount equal to the fair market value of such property, as determined by an
appraisal to be conducted by an appraiser selected by the Trustee, less
unreimbursed Advances made with respect to any Mortgage Loan with respect to
which property has been acquired and (B) the aggregate Outstanding Certificate
Principal Balance of the Class A, Class M, Class B-1 and Class B-2 Certificates,
plus any accrued and unpaid interest thereon at the Remittance Rate; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
C-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________________________ Attorney to transfer
the within Certificate on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
(Signature guaranty) -------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Certificate in every
particular, without alteration or enlargement or
any change whatever.
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
C-8
EXHIBIT D
FORM OF CLASS M CERTIFICATE
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY FOR 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
MORTGAGE FINANCE CORPORATION ("CMFC"), THE SERVICERS OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY CMFC, CHASE MANHATTAN MORTGAGE CORPORATION, THE TRUSTEE OR BY ANY OF
THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
CLASS M CERTIFICATE
Number 01-S5-M-1 Original Denomination
$_______________
Cut-off Date: September 1, 2001 Final Scheduled
Distribution Date: _______ __, 2031
First Distribution Date: Aggregate Original Principal
October 25, 2001 Balance of all Class M
Certificates: $____________
Certificate Rate: ________ CUSIP: 16162T __ _
D-1
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
Series 2001-S5
evidencing an ownership interest in distributions allocable to the Class M
Certificates with respect to a pool of conventional one- to four-family mortgage
loans formed and sold by
CHASE MORTGAGE FINANCE CORPORATION
Unless this Certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Original
Denomination of all Class M Certificates) in certain distributions with respect
to a pool of conventional one- to four-family first lien mortgage loans (the
"Mortgage Loans") formed and sold by Chase Mortgage Finance Corporation
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Chase Manhattan Mortgage Corporation ("CMMC") and
Washington Mutual Mortgage Securities Corp. ("WMMSC") (each a "Servicer" and
collectively, the "Servicers") and are secured by first mortgages on Mortgaged
Properties. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement (the "Agreement"), dated as of September 1, 2001 among the Depositor,
the Servicers, CMMC, as master servicer and Citibank, N.A., as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
Class M (the "Class M Certificates") and 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
Agreement such Holder is bound. Also issued under the Agreement are Certificates
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
Class A (the "Class A Certificates") and Class B (the "Class B Certificates").
The Class A Certificates are senior to, and the Class B Certificates are
subordinate to, the Class M Certificates in right of payment to the extent
described herein and in the Agreement. The Class A Certificates, the Class M
Certificates and the Class B Certificates are collectively referred to herein as
the "Certificates." Amounts properly distributed to the Class M
Certificateholders pursuant to the Agreement will be deemed released from the
Trust Fund, and the Class M Certificateholders will not in any event be required
to refund any such distributed amounts.
Pursuant to the terms of the Agreement, the Trustee, or, if a Paying
Agent has been appointed under Section 4.05 of the Agreement thereof, the Paying
Agent, will distribute from funds in the Certificate Account the amount as
described on the reverse hereof 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 October 25, 2001. Such distributions will be
made to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month preceding the month in which such
payment is made, or if such last day is not a Business Day, the Business Day
immediately preceding such last day.
D-2
Distributions on this Certificate will be made either by check mailed
to the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, or by wire transfer in immediately available
funds to the account of such Holder at a bank or other financial or depository
institution having appropriate facilities therefor, if such Holder has so
notified the Paying Agent in writing at least 10 Business Days prior to the
first Distribution Date for which distribution by wire transfer is to be made,
and such Holder's Certificates evidence an aggregate original denomination of
not less than $5,000,000 or such Holder holds a 100% Percentage Interest of such
Class. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, or agency
appointed by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, for the purpose and specified in such
notice of final distribution.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like class and
dated the date of authentication by the Authenticating Agent. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, for that purpose and specified
in such notice of final distribution.
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.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
D-3
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed.
Dated: September __, 2001 CHASE MORTGAGE FINANCE
CORPORATION
By:_____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M
Certificates referred to
in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK
as Authenticating Agent
By:_________________________________
Authorized Signatory
D-4
REVERSE OF CERTIFICATE
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2001-S5
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
issued in twenty-four Classes of Class A Certificates, one Class of Class M
Certificates and five Classes of Class B Certificates, each evidencing an
interest in certain distributions with respect to a pool of fixed rate one- to
four-family first lien Mortgage Loans formed and sold by the Depositor and
certain other property conveyed by the Depositor to the Trustee. The Class A
Certificates evidence in the aggregate the Class A Percentage of distributions
relating to repayments of principal and interest on such Mortgage Loans. The
Class M Certificates evidence in the aggregate the Class M Percentage of
distributions relating to repayments of principal and interest on such Mortgage
Loans. The Class B Certificates evidence in the aggregate the Class B Percentage
of distributions relating to repayments of principal and interest on such
Mortgage Loans.
Following the initial issuance of the Certificates, the Principal
Balance of this Certificate will be different from the Original Denomination
shown above. Anyone acquiring this Certificate may ascertain its current
Principal Balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund and certain amounts resulting from credit
enhancements for payment hereunder and that the Trustee is not liable to the
Holders 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 hereby, and the rights,
duties and immunities of the Trustee.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of any Paying Agent appointed under the
Agreement, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee (or any Paying Agent, as the case
may be) will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like Class and
dated the date of authentication by the Authenticating Agent.
No service charge will be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Certificate. Prior to
due presentation of a Certificate for registration of transfer, the Depositor,
the Servicers and the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate and the Percentage Interest in
the Trust Fund evidenced thereby for the purpose of receiving distributions
pursuant to the Agreement and for all other purposes whatsoever, and neither the
Depositor, the Servicers, the Paying Agent nor the Trustee will be affected by
notice to the contrary.
D-5
The Agreement may be amended from time to time by the Depositor, the
Servicers and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC (as hereinafter
defined), or to make any other provisions with respect to matters or questions
arising under the Agreement which are not materially inconsistent with the
provisions of the Agreement, provided that such action does not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or cause either REMIC Pool to fail to qualify as a REMIC.
The Agreement may also be amended from time to time by the Depositor,
the Servicers and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) reduce the aforesaid
percentage of Certificates of any Class the Holders of which are required to
consent to any such amendment or (iii) change the percentage specified in clause
(ii) of the first paragraph of Section 11.01 of the Agreement, without the
consent of the Holders of all Certificates of such Class then outstanding.
The Depositor intends to cause an election to be made to treat the
segregated pool comprising the assets of the Trust Fund (the "Subsidiary REMIC")
as a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes. The Depositor intends to cause an election to be made to treat the
pool of assets represented by the "regular interests" in the Subsidiary REMIC as
a separate REMIC (the "Master REMIC"). The Class A Certificates, the Class M
Certificates and the Class B Certificates (other than the Class A-R Certificate)
will constitute "regular interests" in the Master REMIC. The Class A-R
Certificate will represent the sole class of "residual interests" in each of the
Subsidiary REMIC and the Master REMIC.
The respective obligations and responsibilities of the Depositor, the
Servicers (except the duty to pay the Trustee's fees and expenses and
indemnification hereunder) and the Trustee shall terminate upon (i) the later of
the final payment or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and the
remittance of all funds due hereunder; or (ii) at the option of WMMSC, on any
Distribution Date which occurs in the month next following a Due Date on which
the aggregate unpaid Principal Balance of all Outstanding Mortgage Loans is less
than 10% of the aggregate unpaid Principal Balance of the Mortgage Loans on the
Cut-off Date, so long as WMMSC deposits or causes to be deposited in the
Collection Account during the Principal Prepayment Period related to such
Distribution Date (and provides notice to the Trustee of its intention to so
deposit on or before the 20th day of such Principal Prepayment Period) an amount
equal to the greater of (A) the Purchase Price for each Outstanding Mortgage
D-6
Loan, less any unreimbursed Advances made with respect to any Mortgage Loan
(which amount shall offset completely any unreimbursed Advances for which the
Servicers are otherwise entitled to reimbursement), and, with respect to all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
an amount equal to the fair market value of such property, as determined by an
appraisal to be conducted by an appraiser selected by the Trustee, less
unreimbursed Advances made with respect to any Mortgage Loan with respect to
which property has been acquired and (B) the aggregate Outstanding Certificate
Principal Balance of the Class A, Class M, Class B-1 and Class B-2 Certificates,
plus any accrued and unpaid interest thereon at the Remittance Rate; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
D-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________________________ Attorney to transfer
the within Certificate on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
(Signature guaranty) -------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Certificate in every
particular, without alteration or enlargement or
any change whatever.
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
D-8
EXHIBIT E
FORM OF CLASS B CERTIFICATE
THIS CLASS B-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND THE CLASS M CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
MORTGAGE FINANCE CORPORATION ("CMFC"), THE SERVICERS OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY CMFC, CHASE MANHATTAN MORTGAGE CORPORATION, THE TRUSTEE OR BY ANY OF
THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
CLASS B-1 CERTIFICATE
Number 01-S5-B-1-1 Original Denomination
$_________________
Cut-off Date: September 1, 2001 Final Scheduled
Distribution Date: _______ __, 2031
First Distribution Date: Aggregate Original Principal
October 25, 2001 Balance of all Class B-1
Certificates: $_____________
Certificate Rate: ______ CUSIP: 16162T __ _
E-1
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
Series 2001-S5
evidencing an ownership interest in distributions allocable to the Class B-1
Certificates with respect to a pool of conventional one- to four-family mortgage
loans formed and sold by
CHASE MORTGAGE FINANCE CORPORATION
Unless this Certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Original
Denomination of all Class B-1 Certificates) in certain distributions with
respect to a pool of conventional one- to four-family first lien mortgage loans
(the "Mortgage Loans") formed and sold by Chase Mortgage Finance Corporation
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Chase Manhattan Mortgage Corporation ("CMMC") and
Washington Mutual Mortgage Securities Corp. ("WMMSC") (each a "Servicer" and
collectively, the "Servicers") and are secured by first mortgages on Mortgaged
Properties. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement (the "Agreement"), dated as of September 1, 2001 among the Depositor,
the Servicers, CMMC, as master servicer and Citibank, N.A., as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
Class B-1 (the "Class B-1 Certificates") and 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 Agreement such Holder is bound. Also issued under the Agreement are
Certificates designated as Multi-Class Mortgage Pass-Through Certificates,
Series 2001-S5, Class A Certificates (the "Class A Certificates") and Class M
(the "Class M Certificates"). The rights of the Class B-1 Certificateholders to
receive distributions in respect of the Class B Certificates on any Distribution
Date are subordinated to the rights of the Class A and Class M
Certificateholders to receive distributions in respect of the Class A and Class
M Certificates to the extent, and only to the extent, set forth in the
Agreement. The Class A Certificates, the Class M Certificates and the Class B
Certificates are collectively referred to herein as the "Certificates." Amounts
properly distributed to the Class B Certificateholders pursuant to the Agreement
will be deemed released from the Trust Fund, and the Class B Certificateholders
will not in any event be required to refund any such distributed amounts.
Pursuant to the terms of the Agreement, the Trustee, or, if a Paying
Agent has been appointed under Section 4.05 of the Agreement thereof, the Paying
Agent, will distribute from funds in the Certificate Account the amount as
described on the reverse hereof 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 October 25, 2001. Such distributions will be
made to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month preceding the month in which such
payment is made, or if such last day is not a Business Day, the Business Day
immediately preceding such last day.
E-2
Distributions on this Certificate will be made either by check mailed
to the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, or by wire transfer in immediately available
funds to the account of such Holder at a bank or other financial or depository
institution having appropriate facilities therefor, if such Holder has so
notified the Paying Agent in writing at least 10 Business Days prior to the
first Distribution Date for which distribution by wire transfer is to be made,
and such Holder's Certificates evidence an aggregate original denomination of
not less than $5,000,000 or such Holder holds a 100% Percentage Interest of such
Class. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, or agency
appointed by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, for the purpose and specified in such
notice of final distribution.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like class and
dated the date of authentication by the Authenticating Agent. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, for that purpose and specified
in such notice of final distribution.
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.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
E-3
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed.
Dated: September __, 2001 CHASE MORTGAGE FINANCE
CORPORATION
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1
Certificates referred to
in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK
as Authenticating Agent
By:___________________________________
Authorized Signatory
E-4
REVERSE OF CERTIFICATE
MULTI-PASS MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2001-S5
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
issued in twenty-four Classes of Class A Certificates, one Class of Class M
Certificates and five Classes of Class B Certificates, each evidencing an
interest in certain distributions with respect to a pool of fixed rate one- to
four-family first lien Mortgage Loans formed and sold by the Depositor and
certain other property conveyed by the Depositor to the Trustee. The Class A
Certificates evidence in the aggregate the Class A Percentage of distributions
relating to repayments of principal and interest on such Mortgage Loans. The
Class M Certificates evidence in the aggregate the Class M Percentage of
distributions relating to repayments of principal and interest on such Mortgage
Loans. The Class B Certificates evidence in the aggregate the Class B Percentage
of distributions relating to repayments of principal and interest on such
Mortgage Loans.
Following the initial issuance of the Certificates, the Principal
Balance of this Certificate will be different from the Original Denomination
shown above. Anyone acquiring this Certificate may ascertain its current
Principal Balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund and certain amounts resulting from credit
enhancements for payment hereunder and that the Trustee is not liable to the
Holders 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 hereby, and the rights,
duties and immunities of the Trustee.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of any Paying Agent appointed under the
Agreement, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee (or any Paying Agent, as the case
may be) will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like Class and
dated the date of authentication by the Authenticating Agent.
No service charge will be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Certificate. Prior to
due presentation of a Certificate for registration of transfer, the Depositor,
the Servicers and the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate and the Percentage Interest in
the Trust Fund evidenced thereby for the purpose of receiving distributions
pursuant to the Agreement and for all other purposes whatsoever, and neither the
Depositor, the Servicers, the Paying Agent nor the Trustee will be affected by
notice to the contrary.
E-5
The Agreement may be amended from time to time by the Depositor, the
Servicers and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC (as hereinafter
defined), or to make any other provisions with respect to matters or questions
arising under the Agreement which are not materially inconsistent with the
provisions of the Agreement, provided that such action does not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or cause either REMIC Pool to fail to qualify as a REMIC.
The Agreement may also be amended from time to time by the Depositor,
the Servicers and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) reduce the aforesaid
percentage of Certificates of any Class the Holders of which are required to
consent to any such amendment or (iii) change the percentage specified in clause
(ii) of the first paragraph of Section 11.01 of the Agreement, without the
consent of the Holders of all Certificates of such Class then outstanding.
The Depositor intends to cause an election to be made to treat the
segregated pool comprising the assets of the Trust Fund (the "Subsidiary REMIC")
as a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes. The Depositor intends to cause an election to be made to treat the
pool of assets represented by the "regular interests" in the Subsidiary REMIC as
a separate REMIC (the "Master REMIC"). The Class A Certificates, the Class M
Certificates and the Class B Certificates (other than the Class A-R Certificate)
will constitute "regular interests" in the Master REMIC. The Class A-R
Certificate will represent the sole class of "residual interests" in each of the
Subsidiary REMIC and the Master REMIC.
The respective obligations and responsibilities of the Depositor, the
Servicers (except the duty to pay the Trustee's fees and expenses and
indemnification hereunder) and the Trustee shall terminate upon (i) the later of
the final payment or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and the
remittance of all funds due hereunder; or (ii) at the option of WMMSC, on any
Distribution Date which occurs in the month next following a Due Date on which
the aggregate unpaid Principal Balance of all Outstanding Mortgage Loans is less
than 10% of the aggregate unpaid Principal Balance of the Mortgage Loans on the
Cut-off Date, so long as WMSC deposits or causes to be deposited in the
Collection Account during the Principal Prepayment Period related to such
Distribution Date (and provides notice to the Trustee of its intention to so
deposit on or before the 20th day of such Principal Prepayment Period) an amount
equal to the greater of (A) the Purchase Price for each Outstanding Mortgage
Loan, less any unreimbursed Advances made with respect to any Mortgage Loan
(which amount shall offset completely any unreimbursed Advances for which the
E-6
Servicers are otherwise entitled to reimbursement), and, with respect to all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
an amount equal to the fair market value of such property, as determined by an
appraisal to be conducted by an appraiser selected by the Trustee, less
unreimbursed Advances made with respect to any Mortgage Loan with respect to
which property has been acquired and (B) the aggregate Outstanding Certificate
Principal Balance of the Class A, Class M, Class B-1 and Class B-2 Certificates,
plus any accrued and unpaid interest thereon at the Remittance Rate; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
E-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________________________ Attorney to transfer
the within Certificate on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
(Signature guaranty) -------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Certificate in every
particular, without alteration or enlargement or
any change whatever.
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
E-8
EXHIBIT F
FORM OF CLASS A-R CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN EACH OF TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
MORTGAGE FINANCE CORPORATION ("CMFC"), THE SERVICERS OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC RESIDUAL
INTERESTS REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY CMFC, CHASE MANHATTAN MORTGAGE CORPORATION, THE TRUSTEE OR BY ANY OF
THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS
CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") OR SECTION 4975 OF THE CODE OR MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")(A "PLAN"), AND IS NOT
DIRECTLY OR INDIRECTLY PURCHASING ANY CERTIFICATE ON BEHALF OF, AS INVESTMENT
MANAGER OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF OR WITH ASSETS OF A PLAN OR, IN
THE CASE OF AN INSURANCE COMPANY, THE ASSETS OF ANY SEPARATE ACCOUNTS TO EFFECT
SUCH ACQUISITION, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PLAN SUBJECT TO TITLE I OF ERISA, OR SECTION 4975 OF THE CODE OR
SIMILAR LAW (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A
TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT
THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" PURSUANT TO THE DEPARTMENT OF LABOR
PLAN ASSET REGULATIONS SET FORTH IN 29 C.F.R. ss.2510.3-101 AND TO BE SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR SECTION 407 OF
ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE SERVICER, THE COMPANY OR ANY OF THEIR AFFILIATES TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975
OF THE CODE OR SIMILAR LAW) RELATING TO THE CERTIFICATES.
TRANSFERABILITY OF THIS CERTIFICATE IS RESTRICTED UNDER THE PROVISIONS OF
SECTION 4.02 OF THE AGREEMENT.
F-1
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY
INQUIRY OF THE TRUSTEE.
CLASS A-R CERTIFICATE
Number 01-S5-A-R-1 Original Denomination
$_______________
Cut-off Date: September 1, 2001 Final Scheduled
Distribution Date: _______ __, 2031
First Distribution Date: Aggregate Original Principal
October 25, 2001 Balance of Class A-R
Certificate: $___________
Certificate Rate: _____ CUSIP: 16162T __ _
F-2
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
Series 2001-S5
evidencing an ownership interest in distributions allocable to the Class A-R
Certificate with respect to a pool of conventional one- to four-family mortgage
loans formed and sold by
CHASE MORTGAGE FINANCE CORPORATION
This certifies that Credit Suisse First Boston Corporation is the
registered owner of the ownership interest (the "Ownership Interest") evidenced
by this Certificate in certain distributions with respect to a pool of
conventional one- to four-family first lien mortgage loans (the "Mortgage
Loans") formed and sold by Chase Mortgage Finance Corporation (hereinafter
called the "Depositor"), and certain other property held in trust for the
benefit of Certificateholders (collectively, the "Trust Fund"). The Mortgage
Loans are serviced by Chase Manhattan Mortgage Corporation ("CMMC") and
Washington Mutual Mortgage Securities Corp. ("WMMSC") (each a "Servicer" and
collectively, the "Servicers") and are secured by first mortgages on Mortgaged
Properties. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement (the "Agreement"), dated as of September 1, 2001 among the Depositor,
the Servicers, CMMC, as master servicer and Citibank, N.A., as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
Class A-R (the "Class A-R Certificate") and 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 Agreement such Holder is bound. Also issued under the Agreement are
Certificates designated as Multi-Class Mortgage Pass-Through Certificates,
Series 2001-S5, Class M Certificates (the "Class M Certificates") and Class B
Certificates (the "Class B Certificates"). The Class A Certificates, the Class M
Certificates and the Class B Certificates are collectively referred to herein as
the "Certificates."
Pursuant to the terms of the Agreement, the Trustee, or, if a Paying
Agent has been appointed under Section 4.05 of the Agreement thereof, the Paying
Agent, will distribute from funds in the Certificate Account the amount as
described on the reverse hereof 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 October 25, 2001. Such distributions will be
made to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month preceding the month in which such
payment is made, or if such last day is not a Business Day, the Business Day
immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed
to the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, or by wire transfer in immediately available
funds to the account of such Holder at a bank or other financial or depository
institution having appropriate facilities therefor, if such Holder has so
notified the Paying Agent in writing at least 10 Business Days prior to the
first Distribution Date for which distribution by wire transfer is to be made,
and such Holder's Certificates evidence an aggregate original denomination of
not less than $5,000,000 or such Holder holds a 100% Percentage Interest of such
Class. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office of the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, or agency
appointed by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, for the purpose and specified in such
notice of final distribution.
F-3
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like class and
dated the date of authentication by the Authenticating Agent. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Trustee, or, if a Paying Agent has been appointed under Section
4.05 of the Agreement, the Paying Agent, of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, for that purpose and specified
in such notice of final distribution.
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.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
F-4
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed.
Dated: September __, 2001 CHASE MORTGAGE FINANCE
CORPORATION
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-R
Certificates referred to
in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK
as Authenticating Agent
By:_________________________________
Authorized Signatory
F-5
REVERSE OF CERTIFICATE
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2001-S5
This Certificate is one of a duly authorized issue of Certificates,
designated as Multi-Class Mortgage Pass-Through Certificates, Series 2001-S5,
issued in twenty-four Classes of Class A Certificates, one Class of Class M
Certificates and five Classes of Class B Certificates, each evidencing an
interest in certain distributions with respect to a pool of fixed rate one- to
four-family first lien Mortgage Loans formed and sold by the Depositor and
certain other property conveyed by the Depositor to the Trustee. The Class A
Certificates evidence in the aggregate the Class A Percentage of distributions
relating to repayments of principal and interest on such Mortgage Loans. The
Class M Certificates evidence in the aggregate the Class M Percentage of
distributions relating to repayments of principal and interest on such Mortgage
Loans. The Class B Certificates evidence in the aggregate the Class B Percentage
of distributions relating to repayments of principal and interest on such
Mortgage Loans.
Following the initial issuance of the Certificates, the Principal
Balance of this Certificate will be different from the Original Denomination
shown above. Anyone acquiring this Certificate may ascertain its current
Principal Balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund and certain amounts resulting from credit
enhancements for payment hereunder and that the Trustee is not liable to the
Holders 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 hereby, and the rights,
duties and immunities of the Trustee.
The Trustee will cause to be kept at its Agency & Trust Office in New
York, New York, or at the office of any Paying Agent appointed under the
Agreement, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee (or any Paying Agent, as the case
may be) will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if a Paying Agent has
been appointed under Section 4.05 of the Agreement, the Paying Agent, maintained
for such purpose, the Trustee, or, if a Paying Agent has been appointed under
Section 4.05 of the Agreement, the Paying Agent, will, subject to the
limitations set forth in the Agreement, authenticate and deliver, in the name of
the designated transferee or transferees, a Certificate of a like Class and
dated the date of authentication by the Authenticating Agent.
No service charge will be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee, or, if a Paying Agent has been
appointed under Section 4.05 of the Agreement, the Paying Agent, may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Certificate. Prior to
due presentation of a Certificate for registration of transfer, the Depositor,
the Servicers and the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate and the Percentage Interest in
the Trust Fund evidenced thereby for the purpose of receiving distributions
pursuant to the Agreement and for all other purposes whatsoever, and neither the
Depositor, the Servicers, the Paying Agent nor the Trustee will be affected by
notice to the contrary.
F-6
The Agreement may be amended from time to time by the Depositor, the
Servicers and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC (as hereinafter
defined), or to make any other provisions with respect to matters or questions
arising under the Agreement which are not materially inconsistent with the
provisions of the Agreement, provided that such action does not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or cause either REMIC Pool to fail to qualify as a REMIC.
The Agreement may also be amended from time to time by the Depositor,
the Servicers and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) reduce the aforesaid
percentage of Certificates of any Class the Holders of which are required to
consent to any such amendment or (iii) change the percentage specified in clause
(ii) of the first paragraph of Section 11.01 of the Agreement, without the
consent of the Holders of all Certificates of such Class then outstanding.
The Depositor intends to cause an election to be made to treat the
segregated pool comprising the assets of the Trust Fund (the "Subsidiary REMIC")
as a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes. The Depositor intends to cause an election to be made to treat the
pool of assets represented by the "regular interests" in the Subsidiary REMIC as
a separate REMIC (the "Master REMIC"). The Class A Certificates, the Class M
Certificates and the Class B Certificates (other than the Class A-R Certificate)
will constitute "regular interests" in the Master REMIC. The Class A-R
Certificate will represent the sole class of "residual interests" in each of the
Subsidiary REMIC and the Master REMIC.
The respective obligations and responsibilities of the Depositor, the
Servicers (except the duty to pay the Trustee's fees and expenses and
indemnification hereunder) and the Trustee shall terminate upon (i) the later of
the final payment or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and the
remittance of all funds due hereunder; or (ii) at the option of WMMSC, on any
Distribution Date which occurs in the month next following a Due Date on which
the aggregate unpaid Principal Balance of all Outstanding Mortgage Loans is less
than 10% of the aggregate unpaid Principal Balance of the Mortgage Loans on the
Cut-off Date, so long as WMMSC deposits or causes to be deposited in the
Collection Account during the Principal Prepayment Period related to such
Distribution Date (and provides notice to the Trustee of its intention to so
deposit on or before the 20th day of such Principal Prepayment Period) an amount
equal to the greater of (A) the Purchase Price for each Outstanding Mortgage
Loan, less any unreimbursed Advances made with respect to any Mortgage Loan
(which amount shall offset completely any unreimbursed Advances for which the
F-7
Servicers are otherwise entitled to reimbursement), and, with respect to all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
an amount equal to the fair market value of such property, as determined by an
appraisal to be conducted by an appraiser selected by the Trustee, less
unreimbursed Advances made with respect to any Mortgage Loan with respect to
which property has been acquired and (B) the aggregate Outstanding Certificate
Principal Balance of the Class A, Class M, Class B-1 and Class B-2 Certificates,
plus any accrued and unpaid interest thereon at the Remittance Rate; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
F-8
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________________________ Attorney to transfer
the within Certificate on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
(Signature guaranty) -------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Certificate in every
particular, without alteration or enlargement or
any change whatever.
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
F-9
EXHIBIT G
FORM OF TRUSTEE CERTIFICATION
[DATE]
Chase Mortgage Finance Corporation
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement dated as of September 1, 2001
among Chase Mortgage Finance Corporation, Chase Manhattan
Mortgage Corporation as master servicer and servicer,
Washington Mutual Mortgage Securities Corp. as servicer and
Master Servicer and Citibank, N.A., as trustee, Multi-Class
Mortgage Pass-Through Certificates, Series 2001-S5
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that
[, except as set forth in Schedule A hereto,] as to each Mortgage Loan listed in
the Mortgage Loan Schedule attached hereto (other than any Mortgage Loan paid in
full or listed on the attachment hereto) it has reviewed the Mortgage File and
the Mortgage Loan Schedule and has determined that:
(i) All documents in the Mortgage File required to be delivered to
the Trustee pursuant to Section 2.01 of the Pooling and Servicing
Agreement are in its possession;
(ii) In connection with each Mortgage Loan or Assignment thereof
as to which documentary evidence of recording was not received on the
Closing Date, it has received evidence of such recording; and
(iii) Such documents have been reviewed by it and such documents
do not contain any material omissions or defects within the meaning of
Section 2.01 or 2.02.
The Trustee further certifies that as to each Mortgage Loan, the
Trustee holds the Mortgage Note without any Responsible Officer of the Trustee
having received written notice (a) of any adverse claims, liens or encumbrances,
(b) that any Mortgage Note was overdue or has been dishonored, (c) of evidence
on the face of any Mortgage Note or Mortgage of any security interest therein,
or (d) of any defense against or claim to the Mortgage Note by any other party.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond confirming (i) that the Mortgage Loan
number and the name of the Mortgagor in each Mortgage File conform to the
respective Mortgage Loan number and name listed on the Mortgage Loan Schedule
and (ii) the existence in each Mortgage File of each of the documents listed in
subparagraphs (i)(A) through (G), inclusive, of Section 2.01 in the Agreement.
The Trustee makes no representations or warranties as to the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained in
each Mortgage Loan or the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
G-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
CITIBANK, N.A., as Trustee
By: _____________________________
Name: ___________________________
Title: __________________________
G-2
EXHIBIT H
FORM OF INVESTMENT LETTER
(Accredited Investor)
[DATE]
Chase Manhattan Mortgage Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Chase Mortgage Finance Corporation Multi-Class Mortgage
Pass-Through Certificates, Series 2001-S5, [Class B- ]
-------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
________________ _________ (the "Transferor") $_______ by original principal
balance (the "Transferred Certificates") of Multi-Class Mortgage Pass-Through
Certificates, Series 2001-S5, [Class B- ] (the "Certificates"), issued pursuant
to a pooling and servicing agreement, dated as of September 1, 2001 (the
"Pooling and Servicing Agreement"), among Chase Mortgage Finance Corporation
(the "Depositor"), Chase Manhattan Mortgage Corporation ("CMMC"), as master
servicer (together with its permitted successors and assigns in such capacity,
the "Master Servicer") and servicer, Washington Mutual Mortgage Securities Corp.
("WMMSC"), as servicer (each of CMMC and WMMSC together with their respective
permitted successors and assigns in their capacities as servicers, a "Servicer",
and together the "Servicers"), and Citibank, N.A., as trustee (the "Trustee").
[The Purchaser intends to register the Transferred Certificate in the name of
____________________, as nominee for __________________.] All terms used and not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Purchaser certifies, represents and warrants
to, and covenants with, the Depositor and the Trustee that:
1. The Purchaser understands that (a) the Certificates have not been
registered or qualified under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, (b) neither the
Depositor nor the Trustee is required, and neither of them intends, to so
register or qualify the Certificates, (c) the Certificates cannot be resold
unless (i) they are registered and qualified under the Securities Act and the
applicable state securities laws or (ii) an exemption from registration and
qualification is available and (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates.
H-1
2. The Certificates will bear a legend to the following effect:
THIS CLASS B CERTIFICATE HAS NOT AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS SOLD OR TRANSFERRED
IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 4.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
[THIS LEGEND WILL APPEAR ON THE CERTIFICATE ONLY IF SUCH CERTIFICATE IS
AN ERISA RESTRICTED CERTIFICATE.] NO TRANSFER OF THIS CERTIFICATE SHALL
BE MADE UNLESS THE DEPOSITOR SHALL HAVE RECEIVED EITHER (i) A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE
EFFECT THAT SUCH TRANSFEREE EITHER (A) IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") OR MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW (?SIMILAR LAW?) (A ?PLAN?),
AND IS NOT DIRECTLY OR INDIRECTLY PURCHASING ANY CERTIFICATE ON BEHALF
OF, AS INVESTMENT MANAGER OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF OR
WITH ASSETS OF A PLAN OR, IN THE CASE OF AN INSURANCE COMPANY, THE
ASSETS OF ANY SEPARATE ACCOUNTS TO EFFECT SUCH ACQUISITION OR (B) THE
SOURCE OF FUNDS FOR THE PURCHASE OF THE CERTIFICATES IS AN "INSURANCE
COMPANY GENERAL ACCOUNT" WITHIN THE MEANING OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995), AND THE PURCHASE AND HOLDING OF THE CERTIFICATES IS EXEMPT UNDER
PTCE 95-60, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION
IN THE NAME OF A PLAN SUBJECT TO TITLE I OF ERISA, OR SECTION 4975 OF
THE CODE OR SIMILAR LAW (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS), OR A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER PERSON WHO IS
USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN
OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" PURSUANT TO THE DEPARTMENT OF LABOR PLAN
ASSET REGULATIONS SET FORTH IN 29 C.F.R. ?2510.3-101 AND TO BE SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA OR THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE OR
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE SERVICER, CMFC OR
ANY OF THEIR AFFILIATES TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE OR
SIMILAR LAW) RELATING TO THE CERTIFICATES.
H-2
3. The Purchaser is acquiring the Transferred Certificates for its own
account [for investment only]*/ and not with a view to or for sale or other
transfer in connection with any distribution of the Transferred Certificates in
any manner that would violate the Securities Act or any applicable state
securities laws, subject, nevertheless, to the understanding that disposition of
the Purchaser's property shall at all times be and remain within its control.
4. The Purchaser (a) is a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and in particular in such matters related to securities similar to the
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) is able to bear the economic risks of such
an investment and (c) is an "accredited investor" within the meaning of Rule
501(a) promulgated pursuant to the Securities Act.
5. The Purchaser will not nor has it authorized nor will it authorize
any Person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security to
any Person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner, or (e) take any other action, that would constitute a distribution of
any Certificate under the Securities Act or the Investment Company Act of 1940,
as amended (the "1940 Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, or that would require registration or qualification pursuant
thereto. Neither the Purchaser nor anyone acting on its behalf has offered the
Certificates for sale or made any general solicitation by means of general
advertising or in any other manner with respect to the Certificates. The
Purchaser will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing Agreement.
6. [This paragraph may be deleted if the Purchaser provides the Opinion
of Counsel referred to in clause (ii) of Section 4.02(d) of the Pooling and
Servicing Agreement or if the Purchaser is purchasing an ERISA Restricted
Certificate.] The Purchaser either (A) is not an employee benefit plan within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan within the meaning of Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code") or any materially similar
provisions of applicable federal, state or local law (each, a "Plan"), and is
not directly or indirectly purchasing any Certificate on behalf of, as
investment manager of, as named fiduciary of, as trustee of or with assets of a
Plan or directly or indirectly purchasing any certificates with the assets of
any insurance company separate account or of any Plan or (B) is an insurance
company and the source of funds for the purchase of the certificates is an
"insurance company general account" within the meaning of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), and
the purchase and holding of the Certificates is exempt under PTCE 95-60.
7. Prior to the sale or transfer by the Purchaser of any of the
Certificates, the Purchaser will obtain from any subsequent purchaser
substantially the same certifications, representations, warranties and covenants
contained in the foregoing paragraphs and in this letter or a letter
substantially in the form of Exhibit I to the Pooling and Servicing Agreement.
--------
*/ Not required of a broker/dealer purchaser.
-
H-3
8. The Purchaser agrees to indemnify the Trustee, the Servicer and the
Depositor against any liability that may result from any misrepresentation made
herein.
Very truly yours,
[PURCHASER]
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
H-4
EXHIBIT I
FORM OF RULE 144A INVESTMENT LETTER
(Qualified Institutional Buyer)
[DATE]
Chase Manhattan Mortgage Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
The Chase Manhattan Bank
Global Trust Services
15th Floor
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Chase Mortgage Finance Corporation, Multi-Class Mortgage
Pass-Through Certificates, Series 2001-S5, [Class B- ]
--------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
_________________________ (the "Transferor") $_______ by original principal
balance (the "Transferred Certificates") of Multi-Class Mortgage Pass-Through
Certificates, Series 2001-S5, [Class B-] (the "Certificates"), issued pursuant
to a pooling and servicing agreement, dated as of September 1, 2001 (the
"Pooling and Servicing Agreement"), among Chase Mortgage Finance Corporation
(the "Depositor"), Chase Manhattan Mortgage Corporation ("CMMC"), as master
servicer (together with its permitted successors and assigns in such capacity,
the "Master Servicer") and servicer, Washington Mutual Mortgage Securities Corp.
("WMMSC"), as servicer (each of CMMC and WMMSC together with their respective
permitted successors and assigns in their capacities as servicers, a "Servicer",
and together the "Servicers"), and Citibank, N.A., as trustee (the "Trustee").
[The Purchaser intends to register the Transferred Certificate in the name of
____________________, as nominee for __________________.] All terms used and not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Purchaser certifies, represents and warrants
to, and covenants with, the Depositor and the Trustee that:
I-1
In connection with our acquisition of the above Transferred
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 Transferred
Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Transferred Certificates, (d)
we are not an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, or a plan
within the meaning of Section 4975 of the Internal Revenue Code of 1986 (the
"Code"), as amended or any retirement plan or other employee benefit plan
subject to any federal, state or local law materially similar to the foregoing
provisions of ERISA or the Code (each, a "Plan"), nor are we directly or
indirectly purchasing any Certificate on behalf of, as investment manager of, as
named fiduciary of, as trustee of or with assets of a Plan or directly or
indirectly purchasing any certificates with the assets of any insurance company
separate account or of any Plan [or alternatively, if we are an insurance
company, the source of funds for the purchase of the certificates] is an
"insurance company general account" within the meaning of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60"), 50 Fed. Reg. 35925 (July 12, 1995), and
the purchase and holding of the Certificates is exempt under 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 Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities 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 Securities
Act and have completed one of the forms of certification to that effect attached
hereto as Annex 1 or Annex 2. We are aware that the sale of the Transferred
Certificates to us is being made in reliance on Rule 144A. We are acquiring the
Transferred 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 (i) to a person reasonably believed by us, based upon
certifications of such purchaser or information we have in our possession, to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
We agree to indemnify the Trustee, the Servicer and the Depositor
against any liability that may result from any misrepresentation made herein.
Very truly yours,
[PURCHASER]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
I-2
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with the purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $____________*/ in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business
trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by Federal, State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which
is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
such institution or is a foreign savings and loan
association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
----------
* Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
I-3
____ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is
the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is
subject to supervision by the insurance commissioner
or a similar official or agency of the State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established
and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
____ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act
of 1940, as amended.
____ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S.
Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958, as
amended.
____ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940, as amended.
3. The term "securities" as used for purposes of the calculation of the
dollar amount in paragraph 2 excludes: (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
I-4
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
I-5
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $___________ in securities (other
than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
____ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $__________ in
securities (other than the excluded securities
referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
I-6
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
IF AN ADVISER:
Print Name of Buyer
Date:
-----------------------------------
I-7
EXHIBIT J
[RESERVED]
J-1
EXHIBIT K
FORM OF TRANSFEREE'S LETTER
CHASE MORTGAGE FINANCE CORPORATION SERIES 2001-S5
[DATE]
Chase Mortgage Finance Corporation
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
We propose to purchase Chase Mortgage Finance Corporation's Multi-Class
Mortgage Pass-Through Certificates, Series 2001-S5, Class A-R, described in the
Prospectus Supplement, dated September 25, 2001 and Prospectus, dated August 23,
2001.
1. We certify that (a) we are not a disqualified organization and (b)
we are not purchasing such Class A-R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that we are not an employee benefit plan subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Code or materially similar provisions or
applicable federal, state or local law, nor a person acting on behalf of any
such plan or using the assets of such plan, or, alternatively, in the case of an
insurance company, the assets of any separate accounts to effect such
acquisition.
3. We certify that (a) we have historically paid our debts as they
became due, (b) we intend, and believe that we will be able, to continue to pay
our debts as they become due in the future, (c) we understand that, as
beneficial owner of the Class A-R Certificate, we may incur tax liabilities in
excess of any cash flows generated by the Class A-R Certificate, and (d) we
intend to pay any taxes associated with holding the Class A-R Certificate as
they become due.
4. We acknowledge that we will be the beneficial owner of the Class A-R
Certificate and:*/ -
-------------
*/ Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
K-1
______ The Class A-R Certificate will be registered in our
name.
______ The Class A-R Certificate will be held in the name of
our nominee, ____________________, which is not a
disqualified organization.
5. Unless Chase Mortgage Finance Corporation ("CMFC") has consented to
the transfer to us by executing the form of Consent affixed hereto as Appendix
B, we certify that we are a U.S. person; for this purpose the term "U.S. Person"
means a citizen or resident of the United States, a corporation or partnership
(unless, in the case of a partnership, Treasury regulations are adopted that
provide otherwise) created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to Unites States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust, (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons). We agree that any breach by us of this certification shall
render the transfer of any interest in the Class A-R Certificate to us
absolutely null and void and shall cause no rights in the Class A-R Certificate
to vest in us.
6. We agree that in the event that at some future time we wish to
transfer any interest in the Class A-R Certificate, we will transfer such
interest in the Class A-R Certificate only (a) to a transferee that (i) is not a
disqualified organization and is not purchasing such interest in the Class A-R
Certificate on behalf of a disqualified organization, (ii) is a U.S. person and
(iii) has delivered to CMFC a letter in the form of this letter (including the
affidavit appended hereto) and, if requested by CMFC, an opinion of counsel (in
a form acceptable to CMFC) that the proposed transfer will not cause the
interest in the Class A-R Certificate to be held by a disqualified organization
or a person who is not a U.S. person or (b) with the written consent of CMFC.
K-2
7. We hereby designate Chase Manhattan Mortgage Corporation as our
fiduciary to act as the tax matters person for the Series 2001-S5 REMIC.
Very truly yours,
[PURCHASER]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Accepted as of , 200_
---------------------
CHASE MORTGAGE FINANCE CORPORATION
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
K-3
APPENDIX A
Affidavit pursuant to (i) Section 860E(e)(4) of the Internal Revenue Code of
1986, as amended, and (ii) certain provisions of the Pooling and Servicing
Agreement
Under penalties of perjury, the undersigned declares that the following
is true:
(1) He or she is an officer of _________________________ (the
"Transferee"),
(2) the Transferee's Employee Identification number is __________,
(3) the Transferee is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
Chase Mortgage Finance Corporation, Multi-Class Mortgage
Pass-Through Certificates, Series 2001-S5, Class A-R on behalf of
a disqualified organization or any other entity,
(4) unless Chase Mortgage Finance Corporation ("CMFC") has consented
to the transfer to the Transferee by executing the form of Consent
affixed as Appendix B to the Transferee's Letter to which this
Certificate is affixed as Appendix A, the Transferee is a "U.S.
Person" (as defined below),
(5) that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
(6) the Transferee has historically paid its debts as they became due,
(7) the Transferee intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
(8) the Transferee understands that, as beneficial owner of the Class
A-R Certificate, it may incur tax liabilities in excess of any
cash flows generated by the Class A-R Certificate,
(9) the Transferee intends to pay any taxes associated with holding
the Class A-R Certificate as they become due,
(10) the Transferee consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by CMFC (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class A-R Certificate will not be owned directly
or indirectly by a disqualified organization, and
(11) [the present value of the anticipated tax liabilities associated
with holding the Class A-R Certificate does not exceed the sum of:
(A) the present value of any consideration given to the Transferee
to acquire the Class A-R Certificate;
(B) the present value of the expected future distributions on the
Class A-R Certificate; and
(C) the present value of the anticipated tax savings associated
with holding the Class A-R Certificate as the Trust Fund
generates losses.
K-4
For purposes of this declaration, (i) the Transferee is
assumed to pay tax at a rate equal to the highest rate of tax
specified in Section 11(b)(1) of the Code, and (ii) present
values are computed using a discount rate equal to the
applicable Federal rate prescribed by Section 1274(d) of the
Code or a lower discount rate if the Transferee can
demonstrate that it regularly borrows, in the course of its
trade or business, substantial funds at such lower rate from
unrelated third parties;]
[Alternative(11) (A) at the time of the transfer, and at the close of each of
the Transferee's two fiscal years preceding the year of
transfer, the Transferee's gross assets for financial
reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million; and
(B) the Transferee is an eligible corporation as defined in
Section 860L(a)(2) of the Code and has made a written
agreement that any subsequent transfer of the Class A-R
Certificate will be to another eligible corporation that
satisfies Section 4 of Revenue Procedure 2001-12, and such
transfer will not be a transfer to a foreign branch of an
eligible corporation or any other arrangement by which the
Class A-R Certificate is at any time subject to net tax by a
country other than the United States or by a possession of the
United States.
For purposes of this declaration, (i) the gross assets and net
assets of the Transferee do not include any obligation of any
person related to the Transferee (as defined in Section
860L(g) of the Code) or any other asset if a principal purpose
for holding or acquiring that asset is to permit the
Transferee to make this declaration or to satisfy the
requirements of Section 6 of Revenue Procedure 2001-12;]
(12) [Intentionally left blank;]
For purpose of this affidavit, the term "disqualified
organization" means the United States, any state or political
subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (except any entity treated as other than an
instrumentality of the foregoing for purposes of Section
168(h)(2)(D) of the Internal Revenue Code of 1986, as amended
(the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from
taxation under the Code (unless such organization is subject
to tax on excess inclusions) and any organization that is
described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (unless, in the case of a
partnership, Treasury regulations are adopted that provide
otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership
for federal income tax purposes, an estate whose income is
subject to Unites States federal income tax regardless of its
source, or a trust if a court within the United States is able
to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust,
(or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
K-5
----------------------------------
By:
-------------------------------
----------------------------------
Address of Investor for receipt of distribution:
Address of Investor for receipt of tax information:
(Corporate Seal)
Attest:
----------------------------
, Secretary
----------------------------
Personally appeared before me the above-named ______________, known or proved to
me to be the same person who executed the foregoing instrument and to be the
_______ of the Investor, and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this day of , 200 .
------- ----------- --
Notary Public
County of
----------------------------------
State of
-----------------------------------
My commission expires the day of
-------- --------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Dated:
------------------------------
K-6
APPENDIX B
CONSENT
(Transferee)
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Ladies and Gentlemen:
Chase Mortgage Finance Corporation ("CMFC") hereby consents to the
transfer to, and registration in the name of, the Transferee (or, if applicable,
registration in the name of such Transferee's nominee of the Multi-Class
Mortgage Pass-Through Certificates, Series 2001-S5, Class A-R described in the
Transferee's Letter to which this Consent is appended, notwithstanding CMFC's
knowledge that the Transferee is not a U.S. Person (as defined in such
Transferee's Letter).
CHASE MORTGAGE FINANCE CORPORATION
By:
-------------------------------
Dated:
--------------------
K-7
EXHIBIT L
REQUEST FOR RELEASE OF DOCUMENTS
To: Citibank, N.A.
000 Xxxx Xxxxxx
14th Floor, Zone 3
Xxx Xxxx, XX 00000 Citibank, N.A.
Re: Pooling and Servicing Agreement, dated as of September 1,
2001, by and among Chase Mortgage Finance Corporation, Chase
Manhattan Mortgage Corporation, Washington Mutual Mortgage
Securities Corp. and Citibank, N.A. relating to the issuance
of the Series 2001-S5 Multi-Class Mortgage Pass-Through
Certificates
------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by
you, as Trustee, pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
_______ 1. Mortgage Paid in Full
_______ 2. Foreclosure
_______ 3. Substitution
_______ 4. Other Liquidation
_______ 5. Nonliquidation Reason:
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By:
----------------------------------------
(authorized signer)
Issuer:
------------------------------------
Address:
-----------------------------------
Date:
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X-0
Xxxxxxx
Xxxxxxxx, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
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Signature Date
Documents returned to Trustee:
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Trustee Date
L-2
EXHIBIT M
TRANSFEREE ERISA REPRESENTATION LETTER
[DATE]
Chase Mortgage Finance Corporation
000 Xxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Re: Chase Mortgage Finance Corporation, Multi-Class Mortgage
Pass-Through Certificates, Series 2001-S5, [Class M]
[Class B- ]
--------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
_________________________ (the "Transferor") $_______ by original principal
balance (the "Transferred Certificate") of Multi-Class Mortgage Pass-Through
Certificates, Series 2001-S5, [Class M] [Class B-__] (the "Certificates"),
issued pursuant to a pooling and servicing agreement, dated as of September 1,
2001 (the "Pooling and Servicing Agreement"), among Chase Mortgage Finance
Corporation (the "Depositor"), Chase Manhattan Mortgage Corporation ("CMMC"), as
master servicer (together with its permitted successors and assigns in such
capacity, the "Master Servicer") and servicer, Washington Mutual Mortgage
Securities Corp. ("WMMSC"), as servicer (each of CMMC and WMMSC together with
their respective permitted successors and assigns in their capacities as
servicers, a "Servicer", and together the "Servicers"), and Citibank, N.A., as
trustee (the "Trustee"). [The Purchaser intends to register the Transferred
Certificate in the name of ____________________, as nominee for
__________________.] All terms used and not otherwise defined herein shall have
the meanings set forth in the Pooling and Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, we hereby certify, represent and warrant to, and
covenant with, the Depositor that:
(a) we are not an employee benefit plan subject to Section 406
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") or any materially similar provisions of applicable
federal, state or local law, nor a person acting on behalf of any such
M-1
plan or using the assets of such plan, or, alternatively, in the case
of an insurance company, the assets of any separate accounts to effect
such acquisition, or alternatively, (b) the source of funds for the
purchase of such Transferred Certificate is an "insurance company
general account" within the meaning of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), and
the acquisition and holding of such Transferred Certificate is exempt
under PTCE 95-60.
We agree to indemnify the Trustee, the Servicer and the Depositor
against any liability that may result from any misrepresentation made herein.
Very truly yours,
[PURCHASER]
By:
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Name:
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Title:
-----------------------------------
M-2
